DB v Secretary, Department of Communities and Justice

Before the Court is an application by the Secretary of the NSW Department of Communities and Justice for summary disposal of proceedings instituted, and maintained, in this Court (seeking parens patriae relief) in parallel, initially, with care proceedings in the Children’s Court of NSW and, now, on appeal in the District Court of NSW.

These proceedings concern the welfare of a three year old child taken into care by the Secretary (exercising a power under section 44 of the Children and Young Persons (Care and Protection) Act 1998 NSW) (“the Care Act”) shortly after her birth and, soon thereafter, placed with an authorised carer (not a blood relative), with whom she has been living in foster care since that time.

The plaintiff in the principal proceedings is the maternal grandfather of the child. The Secretary is the first defendant, and the plaintiff’s principal contradictor. The second defendant is a “designated agency” (accredited by the Children’s Guardian pursuant to sections 4 and 72 and Schedule 3A of the Children’s Guardian Act 2019 NSW for the purposes of the Care Act and the Children and Young Persons (Care and Protection) Regulation 2012 NSW) which, from a time shortly after the child was taken into care, has had case management for the child under the supervision of the Secretary and, pursuant to section 82 of the Children’s Guardian Act 2019, a responsibility to supervise the placement of the child in the “out-of-home care” of the authorised carer of the child.

The third defendant (the Children’s Court) filed a submitting appearance. The fourth defendant (the independent legal representative who appeared for the child in the Children’s Court) was removed as a party to the proceedings. The fifth defendant (the birth father of the child) has taken no part in the proceedings. The birth mother was not named as a defendant in the proceedings and has taken no part in them, save to the extent that she has remained in contact with her father, the plaintiff.

As required by the Care Act, shortly after taking the child into care the Secretary initiated “care proceedings” under the Act in the Children’s Court by way of an application seeking, inter alia, interim orders placing the child under the interim parental responsibility of the Minister of Families and Communities.

In due course the Children’s Court made interim orders placing the child under the parental responsibility of the Minister; a finding that the child was in need of care and protection; and a finding that there was no realistic possibility of a restoration of the child to the care of her birth parents within a reasonable time, noting that neither birth parent ultimately had sought restoration.

Over eight days between 28 April 2023 and 25 August 2023 a Children’s Magistrate heard the Secretary’s application for a final order that all aspects of parental responsibility for the child be allocated to the Minister until she reaches 18 years of age.

On 23 November 2023 the Children’s Court published reasons for judgment in support of a determination that the child’s best interests would be met by her remaining under the parental responsibility of the Minister until the age of 18 years.

On 30 November 2023, as directed by the Court, the Secretary filed with the Children’s Court an Amended Care Plan.

On 17 December 2023 the Children’s Court made final orders allocating parental responsibility to the Minister until the child attains the age of 18 years.

The maternal grandfather of the child, the plaintiff in the present proceedings, actively participated in the proceedings in the Children’s Court that culminated in the final orders made on 7 December 2023.

He was joined in those proceedings as a party (over an objection by the Secretary) on his own application.

As a finding of “no realistic possibility of a restoration of the child to the care of her birth parents” was conceded by the birth mother and (after some hesitation) by the birth father, the proceedings in the Children’s Court focused primarily on questions relating to permanency planning and placement.

The central contest in the Children’s Court focused upon the plaintiff’s application to have the child placed in his care. That application was opposed by the Secretary largely on the ground that a placement with the plaintiff could not realistically provide a risk-free environment for the child in light of complex family arrangements not wholly within the control of the plaintiff.

After reviewing the evidence before her, and commending the plaintiff for his presentation of his case in the Children’s Court, the Children’s Court Magistrate explained her reasons for finding against his application for parental responsibility of the child in the following terms (with editorial adaptation):

Having formally found that the child’s best interests would be served by allocating parental responsibility to the Minister until she reaches the age of 18, the Children’s Magistrate made the following additional observations (with editorial adaptation):

The complex family arrangements identified in the Children’s Court as an impediment to an allocation of parental responsibility in favour of the plaintiff centre upon the drug culture that has gripped the birth mother (his daughter) and the birth father, a toxic environment to which the birth mother was apparently, tragically introduced by her own mother (the plaintiff’s former wife).

The “long-standing history of police involvement” and the “history of DCJ involvement” to which the Children’s Magistrate referred can be taken as no reflection on the plaintiff personally but as a reference to the dysfunctional conduct of the child’s birth parents and to the plaintiff’s engagement with public authorities when the child’s birth mother was herself taken into care and the subject of substantial litigation in which the plaintiff was actively involved.

The current proceedings, in this Court, were commenced by a summons filed by the plaintiff on 28 July 2023 seeking orders directed to the conduct of the then pending proceedings in the Children’s Court, including directions, in effect, that the Secretary provide funding for the care of the child (implicitly by him) and that the Children’s Court override any decision made to deny him the status of an authorised carer.

That summons was subsequently amended, most recently on 18 March 2024 after the plaintiff had received the benefit of pro bono legal advice. It is presently cast in terms of orders that might be sought in an appeal from the Children’s Court to the District Court under the Care Act, although it is accepted by the Secretary, the plaintiff and the second defendant for the purposes of this judgment that the plaintiff has sought to invoke the inherent, parens patriae jurisdiction of this Court.

On 1 December 2023 the plaintiff filed a summons in the District Court by way of an appeal under the Care Act, seeking an order that he be allocated parental responsibility of the child until she attains the age of 18 years.

When those proceedings came before Gibson DCJ on 1 March 2024 the plaintiff conceded to her Honour that his hope is to press the proceedings in this Court and then, if unsuccessful in this Court, to pursue a full appeal to the District Court under section 91 of the Care Act. He sought a stay of the District Court proceedings to facilitate the conduct of these proceedings. The application for a stay was refused, but the District Court proceedings were nevertheless adjourned pending developments in this Court.

On 25 August 2023 the Secretary filed a notice of motion seeking orders for summary disposal of these (Supreme Court) proceedings. A further notice of motion (in substance seeking the same summary disposal orders) was filed by the Secretary on 26 February 2024. It is that second notice of motion that is presently before the Court.

I proceed on the basis that the plaintiff is a man of good character who has done his best to care for his children (two daughters, the wayward birth mother and an older sister who has lived a stable life) and cares deeply for the welfare of the child as a member of his family.

That said, he has not, to date, been content to play the role of a grandfather to the child. He has been anxious to play the role of a father to her. His insistence that he be allocated parental responsibility for the child, setting himself against the Secretary and the second defendant, has possibly contributed to his lack of contact with the child in recent days.

His more modest ambition to be approved as an “authorised carer” of the child (and, incidentally, to receive funding attached to that status) has been sacrificed to the larger contest (of parental responsibility) thus far lost by him: in allocation of parental responsibility to the Minister; and the refusal of the Secretary and the second defendant to approve him as an “authorised carer” so as to permit him to have care of the child for an extended period of time, rather than occasional contact.

Part of the problem with these proceedings and the care proceedings in both the Children’s Court and the District Court is that the second defendant rejected the plaintiff’s application to it to be approved as an authorised carer notwithstanding that an independent assessor’s report (dated 14 October 2022) recommended that he be approved. The second defendant’s internal “Authorisation Panel” resolved not to approve the plaintiff as a carer and, on or about 14 November 2022, the second defendant wrote to the plaintiff advising him of that decision.

The plaintiff is an experienced litigator, having brought proceedings in relation to the birth mother when she was a young person (in which she was given a pseudonym, “Madison”).

The following judgments have been published in relation to the “Madison” proceedings:

The Secretary’s motion seeks an order for dismissal of the plaintiff’s proceedings pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 NSW or an order for the plaintiff’s summons to be struck out pursuant to UCPR rule 14.28.

Those two rules are in the following terms:

It is convenient to deal with the Secretary’s application in the context of these rules of court, but important to acknowledge that the inherent jurisdiction of the Court extends to the making of orders designed to prevent its process being abused: Williams v Spautz (1992) 174 CLR 509 at 518; Waltons v Gardiner (1993) 177 CLR 378 at 392-393.

That said, the application for an order under UCPR rule 14.28 is misconceived because the operation of that rule is confined to the striking out of a “pleading”, an expression defined in UCPR rule 1.2 (and the Dictionary to the Rules) as including a statement of claim, defence, reply or subsequent pleading but not a summons or notice of motion.

The Secretary’s application fits easily within UCPR rule 13.4(1)(a) or rule 13.4(1)(c), but does not sit comfortably within UCPR rule 13.4(1)(b) because an application for parens patriae relief is directed not to an entitlement of the plaintiff applicant but to protection of a person who, by reason of infancy or incapacity for self-management, is in need of protection.

An officious application for parens patriae relief might be challenged on the ground that it is “frivolous or vexatious” or “an abuse of the process of the Court”, and the applicant’s standing to make an application might be challenged if the application is not calculated to serve the protective purpose of the Court’s jurisdiction (Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106 at [92]-[94]), without attributing an extended meaning to the expression “cause of action”.

Any application for summary disposal of proceedings (which is to say, a disposal of proceedings without a hearing on the merits) must be approached with caution: Spencer v Commonwealth (2010) 241 CLR 118 at 131-132 [24]. Allowance must also be made for the fact that the plaintiff in these proceedings is an unrepresented litigant (Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536-537), albeit a person experienced in the conduct of care proceedings and their intersection with an exercise of parens patriae jurisdiction.

Caution is particularly required upon a consideration of an application for summary disposal of an application for parens patriae relief because the primary focus of an exercise of parens patriae jurisdiction is not upon vindication of a right of a plaintiff but upon protection of a person in need of protection. That said, for the same reason, an order for the dismissal of an application for parens patriae relief does not, of itself, operate as an impediment to a fresh application for parens patriae relief.

The nature of the Court’s parens patriae jurisdiction has been authoritatively determined by the High Court of Australia in Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218 at 258-259 by reference, inter alia, to Re Eve [1986] 2 SCR 388 at 407-417; (1986) 31 DLR (4th) 1 at 14-21 and Wellesley v Duke of Beaufort (1827) 2 Russ 1 at 20; 38 ER 236 at 243. The Crown, as parens patriae [parent of the nation], has an inherent jurisdiction to do what is for the benefit of a person lacking capacity for self-management by reason of age or disability. Its limits (or scope) have not been, and cannot be, defined. There is in theory no limitation on the jurisdiction, although it must be exercised in accordance with principle.

The classic statement of Lord Eldon in Wellesley v Duke of Beaufort, quoted by the High Court, bears repetition:

The following extracts from the judgment of LA Forest J of the Canadian Supreme Court in Re Eve, implicitly endorsed by the High Court, also bear repetition (with editorial adaption and omitting citations of authority):

The Court’s parens patriae jurisdiction is expressly preserved by section 247 of the Care Act.

In the context of care proceedings in the Children’s Court, and on appeal from the Children’s Court, governed by the Care Act it is commonly said that the Court will not, upon exercise of parens patriae jurisdiction, intervene so as to override the statutory scheme governing proceedings in the Children’s Court as a specialist court, with defined rights of appeal, unless there are “exceptional circumstances”.

A classic statement of the law on this point is that found in the judgment of Palmer J in Re Victoria [2002] NSWSC 647; (2002) 29 Fam LR 157 at [35]-[42], with emphasis added:

Another judgment commonly referred to in support of the proposition that “exceptional circumstances” are required before parens patriae orders are made interfering with care proceedings in the Children’s Court (or on appeal in the District Court) governed by the Care Act is the judgment of White J in Re Frieda and Geoffrey [2009] NSWSC 133; 40 Fam LR 608 at [44]-[45], with emphasis added:

In CAC v The Secretary, Department of Family and Community Services [2015] NSWCA 105 at [15]-[16] Basten JA approved the following statement of principle by me at first instance (reported at [2014] NSWSC 1855 at [19]-[20]), to which I adhere:

In paragraph [16] of his judgment Basten JA made the following further observations:

Although those observations were directed to proceedings in the Children’s Court they apply equally to proceedings in the District Court which, on appeal from the Children’s Court, proceed by way of a fresh hearing in which the Secretary has carriage of the proceedings and bears the onus of proving his case.

An application for summary disposal of parens patriae proceedings designed to interfere with the conduct of care proceedings in the Children’s Court, or on appeal from the Children’s Court, can be granted on the basis that the parens patriae proceedings amount to an abuse of process in so far as they duplicate the decision-making process on essentially common questions to be determined in the care proceedings, the orthodox principle being that the Court’s parens patriae jurisdiction should not be exercised to interfere with care proceedings except in an exceptional case: RH v Secretary, Department of Communities and Justice [2021] NSWCA 101 at [3] and [10].

The present proceedings are vexatious and an abuse of the process of the Court in that the plaintiff instituted them, and seeks to maintain them, with the intention of engaging in a forum shopping strategy with proceedings under the Care Act (initially in the Children’s Court, now in the District Court) running in parallel with these proceedings in the hope of the plaintiff managing them to his advantage, if need be playing one off the other.

This in itself is indicative of an abuse of the process of the Court, exposing the child and those interested in her welfare to forensic battles (directed to similar questions) with a risk of conflicting orders and different pathways to appellate review.

In my opinion, and significantly, the proceedings are also an abuse of the process of the Court because the best interests of the child lie in an early, orderly determination of the plaintiff’s appeal to the District Court which, in disposition of the appeal, is armed with the powers conferred by the Care Act on the Children’s Court.

With editorial adaptation, the judgment of Sackar J in Harris v Department of Communities and Justice [2021] NSWSC 519 at [20] and [22] (approved by McCallum JA in RH v Secretary, Department of Communities and Justice [2021] NSWCA 101) provides a convenient exposition of the field of operation of UCPR rule 13.4 in a case factually different from the present one but close enough to illustrate underlying principles:

The plaintiff’s criticism of the current legislative regime for case management for a child in out-of-home care by a designated agency (such as the second defendant) is not without foundation. Responsibility for the child in the present proceedings is divided between the Secretary (representing executive government) and a collateral institution (the second defendant) with its own bureaucracy, subject to review in different contexts by the Secretary, the court system (at different levels, the Children’s Court, the District Court and the Supreme Court, in a Division of the Supreme Court or the Court of Appeal) and the NSW Civil and Administrative Tribunal.

Although the legislative regime has a formal coherence of its own a person outside the institutional structure of the regime endeavouring, or bound, to engage with the regime in practice (such as the plaintiff) might reasonably find it overwhelming, if not also destructive of fragile family relationships.

Nevertheless, these proceedings provide no vehicle for the plaintiff to conduct (as he appears at times to have wanted to conduct) a campaign for systemic reform. The focus of the proceedings in this Court, and in the District Court, is on the welfare of the child. The District Court has ample jurisdiction to protect the interests of the child as the paramount consideration and to accommodate the plaintiff’s familial interest in care of the child.

Nor are these proceedings a vehicle for the plaintiff to agitate an argument that the Secretary can, and should, be compelled to provide him with the same resources and assistance, including funding, as might be provided to him if he were approved to be an authorised carer under the Care Act. The plaintiff’s case at its core is that, by one means or another, he should be recognised as the child’s primary carer with either parental responsibility for her or approval of him as an authorised carer.

It is neither necessary nor appropriate for this Court, in these proceedings, to enter a debate about whether (and, if so, in what circumstances) the Court’s inherent parens patriae jurisdiction extends to an order that the Secretary be compelled to provide financial support in aid of the family of a particular child under care. Re Paul [2023] NSWSC 1635 at [76]-[77] and [81]-[84]; Re Paul (No 2) [2024] NSWSC 106 at [15]-[16] was an exceptional case in which, after extensive debate about how to care for a disabled child, the Secretary was persuaded to provide funding for special care of the child.

The judgment of the Court of Appeal in George v Children’s Court of New South Wales [2003] NSWCA 389; 59 NSWLR 232 per Ipp JA (with whom Sheller and McColl JJA agreed) at [129]-[130] counsels caution against mandatory funding orders against the Secretary:

If, contrary to my assessment, there are questions of high policy which might usefully be addressed in this Court, or on appeal from my judgment (or on appeal from the District Court) in the Court of Appeal, they are unlikely to be ripe for consideration until the plaintiff has pursued his appeal in the District Court.

During the course of the hearing of the Secretary’s summary disposal application I canvassed with the parties ways in which, under the management of the District Court, the plaintiff’s appeal to the District Court might be conducted so as to confine the issues for determination to those centrally important, and to moderate forensic attacks destructive of relationships of trust that need to be developed between those concerned in day-to-day care of the child, now and in the foreseeable future.

For the benefit of the parties generally, and for the plaintiff in particular, I also invited the Secretary and the second defendant to provide written submissions on the following topics:

The Secretary and the second defendant responded constructively to the Court’s invitation. Their respective written submissions have been marked for identification as MFI 1D10 and MFI 2D11.

Given the need for confidentiality attaching to protective proceedings such as these, I do not propose to publish those written submissions in whole or part. I propose, instead, to order that the parties draw the submissions to the attention of the judge allocated to hear the District Court proceedings as an aide memoire. The parties are also at liberty to place before the District Court any of the transcript, evidence or other materials relating to these proceedings.

I am satisfied that it is in the best interests of the child that these proceedings be summarily dismissed, leaving the plaintiff to pursue his District Court appeal in an expeditious manner.

Subject to allowing the parties an opportunity to make submissions about the form of the orders to be made, I propose to dispose of these proceedings by notations and orders to the following effect:

In disposing of these proceedings, and in leaving the plaintiff to pursue his District Court appeal, I encourage the parties to work towards a constructive outcome in which the child can enjoy an ongoing relationship with her grandfather.