Re Paul

These reasons for judgment are published in aid of orders made on 7 December 2023 (and speak as at that date) as the culmination of a series of hearings on that day, and three days earlier, upon consideration of an application for an exercise of the Court’s inherent parens patriae (protective) jurisdiction affecting a child the subject of administrative action by the Secretary, NSW Department of Communities and Justice (the “Secretary”) as delegate for the Minister responsible for the Department, and judicial proceedings in the Children’s Court of NSW (“the Children’s Court”) and the District Court of NSW (“the District Court”), under the Children and Young Persons (Care and Protection) Act 1998 NSW (“the Care Act”).

The current proceedings focus attention upon:

It is common ground in these proceedings that it is not necessary to canvass reasons for judgment published in earlier litigation between the child’s mother and the Secretary.

Nevertheless, the procedural context in which the current proceedings were instituted includes several judgments that should be formally noticed: CM v Secretary, New South Wales Department of Communities and Justice [2020] NSWSC 1740 (Rees J); CM v Minister for Families, Communities and Disability Services [2020] NSWCA 347 (Macfarlan and McCallum JJA); CM v Secretary, Department of Communities and Justice [2021] NSWCA 244 (Macfarlan, Brereton and McCallum JJA); CM v Secretary, Department of Communities and Justice [2021] NSWSC 1442 (Slattery J); and CM v Secretary, Department of Communities and Justice [2022] NSWCA 120 (Leeming, Kirk JJA and Simpson AJA).

Contextually, reference might also be made to the judgment published as JW v Department of Communities and Justice [2023] NSWDC 466 (Coleman SC ADCJ) in which the District Court declined to refer to the Court of Appeal a question whether the Secretary had committed a contempt of court in assuming care of the child following the District Court’s allocation of parental responsibility for the child’s residence to the mother.

In the course of the hearing of the current proceedings in this Court the several earlier judgments evidencing conflict between the mother and the Secretary were but briefly mentioned. Counsel agreed that it was sufficient for the Court to note the chronology of events going back to the time when on 3 March 2020 the child was (for the first of two times) assumed into the care of the Minister under the Care Act, the point at which the mother, the child and the Secretary commenced their litigious engagement.

The central personality in these proceedings is a “difficult” nine year old boy (whose welfare is the paramount consideration) born to a single mother (now aged 60 years) who conceived him, as her only child, via IVF treatment using the contribution of an unidentified father.

The immediate question before the Court concerns management of arrangements for care of the child and, in particular, the regime of care to be provided for him in terms of residence and associated care.

In short, is it in the best interests of the child that he live with his mother (with whatever support is available to them) or that he remain under the close supervision of the NSW Department of Communities and Justice, a government agency, in institutional care pending restoration of him to the care of his mother at an indefinite future time.

This is not a routine case of a mother incapable of self-management unable to manage the affairs of her child. There is no want of capacity for self-management on the part of the mother. She is an educated woman, in good health, with no history of drug or alcohol abuse.

Nor is this a routine case of a neglected child traumatised by domestic violence.

It is the case of a child who, by reason of congenital health conditions, presents many challenges to any carer (whether the mother or a public officer) charged with his day-to-day care. He has been diagnosed with several medical conditions – disabilities - which explain much of what, absent those conditions, could reasonably be described as wilful misbehaviour.

The mother’s devotion to the child is not in question, nor his to her. Nevertheless, she has struggled to look after him on her own without adequate support.

The Department’s concern for the welfare of the child is not in question any more than is that of the mother. I proceed in this judgment on an assumption that the Department has endeavoured, according to its lights, to do what the Secretary of the Department has, in good faith, perceived to be necessary for the safety and well-being of the child. Nevertheless, agents of the Secretary have struggled to look after the child when he has been separated from his mother, with whom he desperately wants to live.

His “misbehaviour” since he was recently taken into care by the Secretary has been of a nature and order more serious than that earlier observed when he was in his mother’s care. He has manifested suicidal thoughts; physically attacked several carers retained by the Secretary to supervise him; escaped from confinement without any apparent intention to return; and destroyed property on multiple occasions as an expression of his frustration with confinement by the Secretary.

Viewed in the abstract, he might well have been the subject of several “risk of harm reports” (for which sections 23-24 of the Care Act provide) had he not been in the care of the Secretary under whose supervision such reports are received. That fact is mentioned not as criticism of the Department but as a measure of difficulties inherent in management of the child’s care.

The course of engagement between Departmental officers and the family constituted by mother and child has not been such as to foster the mutual trust necessary for positive outcomes. The possibility cannot be excluded that some of the distrust that has tainted the relationship between Departmental officers and the mother is cultural. She is culturally Chinese, living on her own (but with some family, at least a sister, in Sydney) in a culturally foreign environment.

The Secretary has peremptorily taken the child into care on two occasions, on both occasions exercising a statutory power to take the child into custody at his school without notice to mother or child.

On 3 March 2020 the boy was assumed into the care of the Minister under section 44 of the Care Act. After several proceedings in the Children’s Court, the Equity Division of this Court, the Court of Appeal and the District Court, the child was on 19 May 2023, on terms, returned to live with the mother pursuant to orders made by the District Court (on an appeal from the Children’s Court) on 17 April 2023.

On 12 September 2023 the Secretary again took the child into care upon an exercise of power under section 44 of the Care Act. As required by section 45 of the Act, on 15 September 2023 he filed in the Children’s Court an application under section 90 of the Act (including an application for leave to bring the application) for the care orders of the District Court to be rescinded.

In accordance with a requirement of section 90(2) of the Care Act, the Secretary’s application for leave to make an application for rescission of the District Court’s care orders sets out several grounds in support of a grant of leave. In essence, they recite the child’s “mild intellective disability and extremely low adaptive functioning” (leaving him “at risk of physical harm as he lacks the cognitive maturity to ensure his own safety”) and the perceived inability of the mother to meet his needs (leaving him to be “exposed to cumulative harm as a result of his needs not being met”) and her perceived inability to “de-escalate” the child “consistently without support”. She is also said to have been unco-operative with Departmental staff members allocated under a Safety Plan to assist her in caring for the child.

The Secretary’s concerns about the safety and care of the child are summarised in the seventh and eighth grounds stated in support of a grant of leave, here extracted with editorial adaptation:

The formal position taken by the Secretary in the Children’s Court consequentially upon this second removal of the child from the care of the mother has been that parental responsibility for the child should be allocated to the Minister until the child attains the age of majority at 18 years.

In this Court the Secretary has conceded that the child should be restored to the mother but seeks to retain the care responsibility for the child so as, he hopes, to stabilise the care arrangements for the child before restoration to his mother.

The difficulty, on both sides of the record, is how to manage that process in a constructive way. The mother contends for an early return of the child to her care, with support available from the Department and with National Disability Insurance Scheme (NDIS) funding. As the Secretary, not the mother, currently has the care responsibility for the child the Secretary, not the mother, has the requisite authority to deal with the National Disability Insurance Agency (NDIA). The Secretary contends for retention of the child by the Department with opportunities for access afforded to the mother until “in due course” (possibly, but not necessarily, in March 2024) the child is returned to live with the mother. Both sides agree that restoration of the child to the mother should be an orderly process.

By a summons filed on 17 November 2023 the plaintiff (“the mother” of the second defendant, “the child”) seeks from the Court:

Section 44 of the Care Act appears in Chapter 5 of the Act, entitled “Children’s Court proceedings”, Part 1 of that chapter (entitled “Emergency Protection and Assessment”) and in Division 1 of that Part (entitled “Emergency Removal”). Division 1 comprises sections 43, 44 and 45, here extracted:

In the context of the present case, particular notice must be taken of the “Note” to section 45. The paramount issue for this Court, no less than for the Children’s Court, is the welfare (including the safety) of the child. The Court cannot, and should not, be distracted from the paramountcy principle by criticism of Departmental procedures not bearing directly on the welfare of the child.

Section 3 of the Care Act defines “care responsibility” to mean “the authority to exercise the functions specified in section 157”.

The nature of the concept of “care responsibility” can be discerned in section 157(1) of the Care Act, here extracted:

A “Care order” made by the Children’s Court under Part 2 of Chapter 5 of the Care Act can be the subject of an application under section 90 of the Act for its rescission or variation. “Interim care orders” can be the subject of an application (under section 90 AA of the Care Act) for their variation.

In these proceedings the child was the subject of a “care order” (made by the Children’s Court and, on appeal, varied by the District Court of NSW) at the time the Secretary assumed the care responsibility of him on 12 September 2023. As required by section 45 of the Care Act, the Secretary on 15 September 2023 filed his application under section 90 of the Care Act for leave to apply for a recission and replacement of orders made by the District Court on 17 April 2023. That application is presently listed before the Children’s Court for directions.

As the orders of the Children’s Court under challenge in these proceedings were made by the President of the Children’s Court (a judge of the District Court of NSW), the mother’s application to this Court for judicial review of orders made by the Children’s Court is assigned, in this Court, to the Court of Appeal.

By and with the consent of the parties, shortly after the summons was filed I made an order under the Uniform Civil Procedure Rules 2005 NSW, rule 28.2, to the effect that, all questions arising on an exercise of the Court’s parens patriae jurisdiction be heard and determined before any other question arising in the proceedings. Nothing in this judgment is intended to bear upon competing contentions that might be advanced on the mother’s application for judicial review.

If, upon the determination of the mother’s parens patriae application she seeks to pursue her judicial review application, these proceedings, to that extent, can be removed into the Court of Appeal.

At the invitation of the mother and the Secretary, the child was joined in these proceedings as a defendant; an order was made dispensing with any requirement that he be represented by a tutor; and an independent child representative was appointed to represent his interests in the proceedings.

It is common ground that the mother’s application for parens patriae orders is made within the authority of a judge of the Equity Division of the Court to decide and that the matters of immediate concern about the welfare of the child can be addressed on that application.

Upon an assumption that they are valid, the steps taken by the Secretary and the Children’s Court leading up to the commencement of proceedings in this Court were taken in reliance upon powers ostensibly conferred by the Care Act.

For the purpose of this judgment I assume that the Secretary acted in a bona fide manner and within the power conferred by section 44 of the Care Act when on 12 September 2023 he assumed the care responsibility for the child; and that no jurisdictional error attends the institution or conduct of the section 90 proceedings (currently on foot) subsequently commenced by the Secretary as required by section 45 of the Care Act, nor interim care orders made by the President of the Children’s Court (in favour of the Minister) under section 69 of the Care Act in those proceedings.

Section 247 of the Care Act provides that “[nothing] in this Act limits the jurisdiction of the Supreme Court”.

The focus for attention in this judgment is upon the question whether (notwithstanding an absence of jurisdictional error in the processes of the Secretary and the Children’s Court) there is an occasion, upon an exercise of the Court’s parens patriae jurisdiction, to order that the child be restored to the care of the mother on substantially the same terms as those contemplated by the orders made by the District Court on 17 April 2023.

In opposing any grant of relief upon an exercise of protective jurisdiction, the Secretary reminded me of what I wrote in P v NSW Trustee and Guardian [2015] NSWSC 579 at [25]-[31], to which I adhere:

There is no dispute that, at the time they were made, the orders made by the District Court were binding on the parties to these proceedings unless and until displaced on an appeal to the Court of Appeal, by an order duly made by the Children’s Court under section 90 of the Care Act or upon an exercise by this Court of its parens patriae jurisdiction.

The Secretary’s assumption of the care responsibility for the child under section 44 of the Care Act represented a substantial departure from the scheme of the District Court’s orders.

It dramatically affected the day-to-day lives of both the child and the mother. In practical reality it imposed upon the mother, in any care proceedings consequent upon the course taken by the Secretary to challenge the District Court’s orders, a forensic burden which she would not have borne had the Secretary simply made an application under section 90 of the Care Act for a variation of the District Court’s orders on notice to the mother.

On the hearing of these proceedings the Secretary announced that his object was to work towards restoration to the mother of all parental responsibility for the child, an object of the District Court’s orders. That is not, however, what the Secretary’s section 90 application on its face seeks. On its face, it seeks an allocation of all parental responsibility to the Minister.

The manner in which the Secretary has sought to challenge the District Court orders otherwise binding on him calls for critical assessment upon an exercise of the Court’s parens patriae jurisdiction.

Accepting that he acted within power and with the best of motives when he peremptorily assumed the care responsibility of the child, he substituted an administrative fiat for carefully crafted orders made by a judge, on appeal from the Children’s Court, after an eight day contested hearing. He sought to displace the judge’s scheme of orders whilst, at the same time, keeping the child in confinement and limiting the child’s access to the mother, all the while (despite the best of intentions) provoking bad behaviour on the part of the child whose expectation (arising from knowledge of the District Court judgment) was that he would continue living with his mother.

The parens patriae jurisdiction of the Court over a person under the age of majority, a minor (once described as the “infancy jurisdiction” and now generally recognised as part of the “protective jurisdiction” of the Court) is governed by a central informing idea: that the jurisdiction exists for the care of those who are not able to take care of themselves (Secretary, Department of Health and Community Services v JWB & SMB (Marion’s Case) (1992) 175 CLR 218 at 258), and that an exercise of the jurisdiction affecting a person in need of protection must be for the benefit, and in the best interests, of that person as an individual, not for the benefit of the State, or others, or for the convenience of carers (Re Eve [1986] 2 SCR 388 at 409-411, 414, 425-428, 429-430, 431-432 and 434; 31 DLR (4th) 1 at 16-17, 19, 28-30, 31, 32 and 34, a judgment of the Supreme Court of Canada approved by the High Court of Australia in Marion’s Case).

This central, informing idea is reflected in Part 1 of Chapter 2 (sections 7-10A) of the Care Act, under the heading “Objects, Principles and Responsibilities”:

The Court’s parens patriae jurisdiction is generally reserved for dealing with uncontemplated, or exceptional, situations where it appears necessary for the jurisdiction to be invoked for the protection of those who fall within its ambit: Re Eve [1986] 2 SCR 388 at 411; 31 DLR (4th) 1 at 17.

In the exercise of parens patriae jurisdiction over minors, the Children’s Court (constituted by the Children’s Court Act 1987 NSW) exercises specialist, statutory jurisdiction, subject to an appeal to the District Court or (on an appeal from a judgment of the President of the Children’s Court) this Court. A further layer of appeal lies to the Court of Appeal.

In cases in which the jurisdiction of the Children’s Court has been engaged, the Court exercises caution in making parens patriae orders lest it undermine the integrity of the statutory procedures, including the appeal process. The standard approach is that of Palmer J in Re Victoria [2002] NSWSC 647; 29 Fam LR 157 at [37]-[40], supplemented by that of White J in Re: Frieda and Geoffrey [2009] NSWSC 133; 40 Fam LR 608 and cases cited therein. The authorities demonstrate a consciousness of a need to support the work of the Children’s Court and, on a de novo appeal, the District Court.

In many cases the Court is reminded that, upon an exercise of parens patriae jurisdiction, it should defer to the expertise and experience of the Children’s Court when that Court is seized of a concurrent case at first instance.

The present case is distinctively different. That is because the Secretary has, by administrative action, displaced a considered judgment of the District Court upon appeal from the Children’s Court. The Secretary’s action, well meaning though it may have been, displaced the judgment of the District Court without notice to the parties (mother and child) primarily affected by the judgment. That action, taken without the leave of any court, and in circumstances in which there were strong reasons (recognised by the District Court) to allow the child to live with his mother, imposed on the mother and child a fresh forensic burden in seeking to be heard, as well as social disruption.

The Secretary assumed care responsibility for the child (under section 44 of the Care Act), and subsequently made an application to the Children’s Court (under section 90 of the Care Act) for leave to make an application for the rescission or variation of the care orders made by the District Court, in a manner arguably consistent with a deliberate disregard of the orders of the District Court.

The Secretary contends that there are no “exceptional circumstances” warranting orders being made upon an exercise of the Court’s parens patriae jurisdiction and that, accordingly, the mother’s application for parens patriae orders should be dismissed, leaving the Children’s Court to determine the Secretary’s pending section 90 application.

That contention is a matter of concern, in the particular case and generally, if the course of events instigated by the Secretary leading to the commencement of these proceedings is regarded by the Secretary as “unexceptional”.

The District Court’s orders of 17 April 2023 provided, as the child was told by the judge, for an orderly return of the child to the care of the mother, following the earlier assumption of care of the child by the Secretary on 3 March 2020. The ink on those orders was barely dry when, without the leave of any court, without first making an application under section 90 of the Care Act on notice to the mother or the child, and without any notice at all to the mother, the Secretary on 12 September 2023 assumed the care responsibility of the child for a second time.

No submission has been made in these proceedings, by any party, that the judgment of the District Court was plainly wrong, or to be disregarded. cf, Re M (No 4) [2013] NSWCA 97 at [23].

It is common ground that, in practical reality, a condition of a successful restoration of parental responsibility for the child to the mother is that, for a defined period of time, she be given professional support in caring for the child.

On both occasions that the care responsibility of the child was assumed by the Secretary the child was taken into care at school, leaving the mother without timely information about what had occurred.

The Secretary’s assumption of care responsibility for the child on 12 September 2023 was motivated, in part, by a concern that, if alerted to the Secretary’s plan to take the child into care, he would encounter strong resistance on the part of the mother and, possibly, the child.

There appears to have been no intention on the part of the Secretary to challenge the orders of the District Court by an application under section 90 of the Care Act on notice to the mother without the child being taken into care by the Secretary.

An inference available to be drawn from the conduct of the Secretary is that, dissatisfied with the orders of the District Court and not wishing to abide proceedings in the Court of Appeal, a decision was made simply to start again by seizure of the child and subsequent fresh proceedings in the Children’s Court with the forensic advantage of possession, custody and control of the child.

It would not be fair to draw this inference without, however, acknowledging that the Secretary’s section 44 Notice of 12 September 2023 was based, inter alia, upon evidence of events post dating 17 April 2023. During that timeframe the child absconded from his mother. He threw things from the balcony of her fourth floor home unit. He broke the lock of the balcony door. He was suspended from school because of his behaviour there.

A problem with criticism of the mother’s care of the child is not only that the Secretary has fared no better with the care of the child but the mother has an apprehension, on reasonable grounds, that the Secretary’s engagement with her after the child was returned to her care was intended, not only to provide her with the assistance she admittedly needed in caring for a difficult child, but to gather evidence to be used against her in fresh proceedings.

The course of events has not been calculated to build up trust between the mother and the Secretary or those working under the direction of the Secretary. The Department has a deep scepticism of the mother’s capacity to care for the child and a reluctance to assume responsibility for the provision of care for the child at home, outside institutional care arrangements. The Department and the mother are burdened in their care for the child by reciprocal distrust.

The conduct of this child’s case by the Secretary’s Department has conformed to a pattern commonly encountered upon an exercise of the Court’s general protective jurisdiction where controversy attaches to arrangements for the care of a vulnerable person of whatever age.

In those cases it is not uncommon for a family member to assume control of the vulnerable person by taking possession of “the person”, isolating the person, restricting access to the person and controlling the narrative about what is in the best interests of the person.

By peremptorily assuming care responsibility for the child without notice to the mother (or the child), without the leave of any court, and without any prior application to a court that would permit a judge independently to supervise his administrative intervention in the lives of mother and child, the Secretary took possession of the child, isolated him and took control of the narrative, limiting the mother’s access to the child and causing distress to both mother and child.

That the child, in particular, was caused acute distress by his assumption into the care of the Secretary, and his subsequent confinement by the Secretary is apparent in his words, deeds and elevated behaviour, ostensibly aggravated by his expectation (informed by the District Court judgment, explained to him personally by the judge in chambers on or about 18 April 2023) that he could live with his mother.

The unruly, unpredictable behaviour of the child, attributable to his disabilities, is a cause for concern of the Secretary, the mother and the Court system. Nobody can predict the future or eliminate risk. The Secretary’s assumption of care responsibility for the child, intended to de-escalate his behaviour, dramatically failed to achieve its object and, to the detriment of the child, escalated tensions between mother and child (on the one hand) and the Department (on the other hand).

The best that can be done is prudential management of risk in light of past experience and present circumstances, looking forward with the benefit of professional advice where available. That is what must be done now, paying due deference to the considered and careful judgment of the District Court and updated evidence (including the parties’ competing expert evidence of health professionals) bearing upon the child’s personal circumstances.

Part of the function of a judge (be it a judge of the Children’s Court, the District Court or the Supreme Court) in a case such as the present is to provide a forum in which problems associated with caring for a “difficult” child can be addressed in an orderly way and shared.

Whoever might have day-to-day responsibility for the care of this child his need for protection requires that the mother and the Secretary, in the interests of the child, conscientiously endeavour to work together in a respectful manner that can generate trust. There is no guarantee that this child’s future will be free of risk of misadventure no matter who has responsibility for his day-to-day care. Experience teaches at least that.

Each of the parties to these proceedings has struggled to deal with an underlying problem. The welfare of the child (including his safety) requires him to live with his mother (with whom he has a strong mutual attachment), but to care for him at home she needs the assistance of specially trained carers which the Secretary has been reluctant to provide because of ongoing concerns about the mother’s ability to engage with carers, and a concern about exposure to an indefinite liability to provide funding for services not directly controlled by the Department in premises owned or controlled by the Department.

The mother’s case for return of the child to her care is supported by supplementary evidence adduced in these proceedings (over a formal objection on behalf of the Secretary) from an expert whose evidence was relied upon by the District Court judge whose orders of 17 April 2023 continue to operate until displaced by orders made under the Care Act.

I leave aside a question (raised by senior counsel for the mother) whether the District Court’s orders (which have taken effect as a care order of the Children’s Court) can be displaced by interim orders made by the Children’s Court pending the determination of an application for leave under section 90 of the Care Act.

In the circumstances of this case, upon my giving an indication of the nature of the orders I proposed to make in disposition of the mother’s parens patriae application, the parties (more particularly, the mother, the Secretary and the independent child representative) agreed upon a form of orders that included a notation that, in anticipation of the child returning home pursuant to the Court’s orders, they would make a joint application to the Children’s Court for the interim orders of the Children’s Court to be discharged.

The Secretary is to be commended for his willingness, albeit with reluctance, to engage in the formulation of arrangements (including funding of professional care) for the child to return to his mother’s care within a time frame broadly consistent with the District Court’s orders of 17 April 2023.

In practical terms, the Secretary’s resistance to the child returning to live with his mother without delay attendant upon the child remaining indefinitely in institutional care has turned upon:

The practical reality is that, at the present time, the mother needs support if she is to take care of the child at home and, if he is to be protected from harm (including self harm), he needs the security and nurture that is uniquely available in the care of his mother. A regime of confinement of the child in institutional care is not risk free and, in my judgment, the welfare of the child is best served by accommodating his reasonable expectation (based upon the District Court judgment) that he would be permitted to live at home.

I do not intend, by giving effect to that judgment, to fetter proceedings in the Children’s Court, or the statutory powers of the Secretary, under the Care Act.

At the conclusion of the hearing on 7 December 2023 I made orders and notations to the following effect:

On 21 December 2023 Lindsay J published these reasons for judgment after making the following orders and notations with a view to disposition of the proceedings: