WS v Department of Communities and Justice

The plaintiff commenced these proceedings by summons on 23 May 2025 against the Secretary of the Department of Communities and Justice (“DCJ”) to claim relief in the Court’s parens patriae jurisdiction in relation to the plaintiff's granddaughter. The defendant has, by notice of motion dated 14 November 2025 (“the motion”), sought to strike out these proceedings under Uniform Civil Procedure Rules 2005 (“UCPR”), r 13.4(1)(a) on the grounds that they are frivolous and vexatious, and r 13.4(1)(c) on the ground that they are an abuse of process. The motion was heard on 15 December 2025.

These proceedings are unusual as the Summons was filed whilst District Court proceedings were underway on a statutory appeal under Care Act Children and Young Persons (Care and Protection) Act 1998 (“the Care Act”) from the Children's Court in relation to the issue of the allocation of parental responsibility of the granddaughter. Those proceedings had already occupied about eight days of hearing at the time that the plaintiff’s present Summons was filed in this Court.

As is common with proceedings commenced in this Court’s parens patriae jurisdiction, the Summons first came before McGrath J, who was then sitting as duty judge, and later before myself as duty judge, first on 14 November and then on 15 December for final hearing on the motion.

The parties agreed upon the evidentiary material before the Court. One issue of the admission of evidence related to an affidavit of the plaintiff of 31 October 2025. But in the Court's view the material contained in that affidavit does not require a separate ruling from the Court as the contents of this affidavit replicate other material already before the Court.

The plaintiff represented himself on the hearing of the motion. The defendant, the applicant on the motion, was represented by Ms E Lambert of counsel instructed by the Crown Solicitor.

As these are proceedings in the parens patriae jurisdiction the plaintiff/grandfather has been given the pseudonym “WS” but he will generally be referred to throughout these reasons as the plaintiff or “the grandfather”. The Secretary, the defendant will be referred to as the defendant or from time to time as “DCJ”. The child the subject the proceedings will generally be referred to as “the granddaughter”.

The plaintiff is the maternal grandfather of the granddaughter, who was born in July 2021. Within days of her birth the granddaughter was assumed into care by the Secretary pursuant to Care Act, s 44. After being assumed into care the granddaughter was placed with her current carer, and she has remained with the same carer ever since, throughout the Children's Court proceedings, the District Court appeal proceedings and these proceedings, a period of about four and three-quarter years.

Due to his wish to advance contentions in relation to the long-term welfare of the granddaughter, in August 2021 the plaintiff appeared in and was joined into the Children's Court proceedings which inter-alia were to determine who would have parental responsibility for the granddaughter. After lengthy first instance proceedings the Children's Court concluded in November 2023 that it was in the best interests of the granddaughter that parental responsibility under the Care Act be allocated to the Minister until she turned 18.

Shortly after that Children's Court decision, the plaintiff filed a Summons in the District Court under Care Act, s 91 seeking to appeal against the result. The plaintiff had a right to appeal as a party to those proceedings. His Summons was filed slightly before the final orders of the Children's Court were entered, which was not until 7 December 2025.

During the Children's Court proceedings, the plaintiff had filed previous proceedings in this Court seeking a range of parens patriae relief. After a contest upon an application by the DCJ Lindsay J determined those proceedings in DCJ’s favour. DCJ’s then application was similar to the application now before the Court, being an application for summary dismissal of those proceedings. After hearing the argument from DCJ on that application, Lindsay J summarily dismissed those proceedings pursuant to UCPR, r 13.4(a) and (c): DB v Secretary, Department of Communities and Justice [2024] NSWSC 470.

The plaintiff's appeal to the District Court sought that parental responsibility for the granddaughter be allocated to him until she attained 18 years of age. The District Court proceedings were temporarily adjourned to allow the Supreme Court proceedings before Lindsay J to play out. After Lindsay J struck those proceedings out, the District Court appeal was revived and proceeded. That appeal commenced in September 2024 before Ainslie-Wallace ADCJ. Despite the initial delay occasioned by the intervention of the proceedings before Lindsay J, the District Court appeal proceedings were conducted expeditiously and several days of evidence were heard.

Evidence was given by an expert psychologist, Ms Dianne Starkey, who prepared several reports for the proceedings. She gave evidence on 30 September 2024. It is not necessary to set out the evidence that she gave, partly because of concessions made by the plaintiff. But that evidence is before the Court on this application. Ms Starkey speaks to some of the underlying issues in relation to the welfare of the granddaughter and the contest in play here. She explains that the granddaughter was removed from her parents' care soon after birth, arising out of prenatal concerns arising from her parents' substance abuse, the mother's mental health problems and allegations of domestic violence perpetrated by the father on the mother. The granddaughter’s removal from her birth parents resulted in her never residing with them.

As the plaintiff himself has submitted, the granddaughter’s mother was the subject of a struggle by the plaintiff before this Court many years ago and is reported as Re Maddison [2014] NSWSC 1874. I have re-read that case. I do not need to return to it now other than to emphasise that the Court is very conscious of how long the plaintiff has been striving for the best interests of his daughter, and now granddaughter, over so many years, with all the challenges that this presents.

To return to the report of Ms Dianne Starkey, she firmly concluded that it would "not be in the best interests of the granddaughter to be moved from her secure home with her psychological parent with whom she has resided virtually all her life." Ms Starkey gave detailed reasons for that conclusion.

In a supplementary report prepared for the occasion of her evidence on 30 September 2024, Ms Starkey emphasised the plaintiff's "very positive" contact with the granddaughter and that there was no suggestion that his contact with her should not continue. She recommended that a care plan be developed working towards the plaintiff "having unsupervised contact with the granddaughter in future under certain conditions." The assumption behind Ms Starkey's report was of a good quality relationship between the plaintiff and the granddaughter’s long-term carer. But Ms Starkey later qualified aspects of her opinion. She expressed caution because of a deterioration in the plaintiff’s relationship with the granddaughter’s carer due to some unfortunate recent denigration of the carer by the plaintiff. Despite those observations Ms Starkey’s recommendation was very clear: that the granddaughter should stay placed with her long-term carer.

On the next day, 1 October 2024, the plaintiff made an express concession to the Children's Court that the granddaughter should remain in her placement with her long-term carer. This was an important development in the Children's Court appeal, allowing the appeal to proceed upon the settled assumption of placement with the granddaughter’s long-term carer. That permanency planning could not be undertaken immediately, and the proceedings were adjourned so that the parties could engage in a dispute resolution conference, which took place on 19 November 2024.

A considerable time elapsed before the matter next came before Ainslie-Wallace ADCJ, during which negotiations and attempts to develop a care plan took place. The common assumption behind the discussions taking place was that the matter would conclude soon after a care plan for the granddaughter was filed. The care plan was filed in about mid-May 2025. It was shortly after that that the plaintiff filed his Summons in this Court on 23 May 2025.

The Court can infer from the timing of the plaintiff’s filing of the Summons proceedings so close to the filing of the care plan in the District Court that, as the Summons itself indicates, the plaintiff was revising his earlier concessions about parental responsibility for the granddaughter staying with the Minister. His summons in these proceedings seeks, in order 3, that parental responsibility for the granddaughter be awarded to the plaintiff according to the Care Act and the Convention on the Rights of the Child; or, in the alternative, in order 4, an order for joint parental responsibility. This was not consistent with the concessions that the plaintiff had made to the District Court.

At the same time, the plaintiff filed a motion in the District Court appeal (a) seeking that Ainslie-Wallace ADCJ disqualify herself from further hearing the proceedings and (b) for the joint allocation of parental responsibility the granddaughter, to include the plaintiff. The matter was the subject of a contest before Ainslie-Wallace ADCJ on 30 May 2025, when her Honour declined to recuse herself and then planned the recommencement and conclusion of the proceedings. The hearing before Ainslie-Wallace ADCJ recommenced on 22 September 2025 and continued for a further seven days. In total, the District Court hearing went for nine days. The matter was then listed for a final hearing day on 1 October 2025, but by that stage the plaintiff's current summons was proceeding in this Court.

The Plaintiff’s present Summons first came before McGrath J on 10 October 2025. What happened on that day should be reviewed closely from the transcript and its effect appreciated, because the plaintiff's submissions made to this Court on 10 December 2025 and his submissions to this Court on the present application have tended to interpret what McGrath J said in a manner which is inconsistent with what McGrath J actually said to the plaintiff.

McGrath J was sitting as duty judge on 10 October 2025. McGrath J was presented with the situation of (a) subsisting part heard appeal proceedings in the District Court, which had by then gone at least seven days, (b) the plaintiff, on the current Summons (and by then a proposed amended summons) seeking to invoke this Court's parens patriae jurisdiction, and (c) the DCJ foreshadowing the strikeout motion which is the subject of this decision.

The transcript of what relevantly happened on that occasion is set out below. McGrath J commenced by seeking to have the plaintiff grapple with the situation as follows:

McGrath J here had put very straightforwardly to the plaintiff that his conducting proceedings in two courts at once was not acceptable: "You can't run the same point in the Supreme Court at the same time as you are running a trial in the District Court." As the passage above shows, McGrath J then talked the plaintiff through the inconsistency and potential abuse of process in arguing the same thing in two places.

One aspect of this exchange is of great importance. The plaintiff said to McGrath, in the nature of a question:

In answer to that question, McGrath J said to the plaintiff:

To which the plaintiff replied:

This seemed to indicate that the plaintiff thought at that point that it would be possible to have the District Court proceedings transferred and heard jointly in the Supreme Court with the parens patriae proceedings. But his Honour, not surprisingly, given the authorities in this area and the well advanced progress of the District Court proceedings, said to the plaintiff:

His Honour was clearly reluctant to have the Supreme Court take over something which was already so well advanced in the statutory appeal process in the District Court. His Honour then warned the parties, and perhaps the plaintiff in particular, saying:

McGrath J was here directly raising in answer to the plaintiff's tentative proposal that the idea of removing the District Court proceedings to this Court would well amount to an abuse of process.

McGrath J then explored with the other parties what their views were through submissions. His Honour said that after hearing from all the parties that he thought the best thing to do was to stand these proceedings over until next year. Indeed, he did so, standing them over until 4 February 2026 this year, and then his Honour explained and spoke directly to the plaintiff and said this:

In the clearest of terms, what his Honour was doing here was saying to the plaintiff that it was the most convenient thing for all the parties' rights in the District Court to be resolved before the matter came back to this Court. But McGrath J declined to otherwise deal with the substance of the matter on that occasion, and instead allowed an adjournment for sufficient time to conclude the District Court proceedings.

Importantly McGrath J expressly declined to give the plaintiff any legal advice. I also declined to give the plaintiff legal advice during the hearing of these proceedings. Managing unrepresented litigants fairly can involve explaining legal procedure to them but they are not entitled to legal advice from the bench or to treatment more favourable than legally represented litigants: Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36.

It is now appropriate for the Court to contrast what happened before McGrath J with the plaintiff's written submissions in these proceedings filed with the Court on 10 December 2025 and relied upon by the plaintiff at the hearing of the motion. The plaintiff said in those written submissions the following:

The other part of those written submissions referred to the plaintiff's gratitude to the Court for attempting to secure proper legal representation for him. In November 2025 this Court attempted to see if the plaintiff could be assisted through the Court’s pro bono scheme under UCPR, r 7.46. Unfortunately, the referral to the Registrar for this purpose was unsuccessful.

But the plaintiff's written submission that he acted "on the procedural advice of this Court" is simply not correct. Examination of the transcript before McGrath J contrasts strongly that submission. In the Court's view, looking at the transcript of what happened before McGrath J, it can only really be inferred that the plaintiff himself has determined to continue these proceedings after the Court has expressly said to him that it is not giving him legal advice. The plaintiff made the decisions that followed himself.

The matter came back to the District Court on 27 October 2025 before Ainslie-Wallace ADCJ. What occurred there is worthy of closer examination. On that occasion the plaintiff proposed that the District Court appeal proceedings before her Honour be discontinued. This appears to have been the plaintiff’s own idea to resolve the problem of duplicity of proceedings – by ending the District Court appeal. This caught the other parties to the District Court appeal proceedings somewhat by surprise, as might be expected. But Ms Lambert, who appeared for the Defendant in these proceedings, also appeared before Ainslie-Wallace ADCJ on that occasion before the discontinuance occurred. Upon the plaintiff’s application to discontinue she submitted to the Court:

That was a very clear statement of concern that the plaintiff may misunderstand or misconceive the nature of the parens patriae jurisdiction and its breadth and that, in effect, he should be cautious about discontinuing the District Court proceedings. It should have acted as a warning to any reasonable person in the position of the plaintiff.

All parties, including the Court, then made observations about the tremendous waste in the proceedings that would occur if leave to discontinue were granted. Ainslie-Wallace ADCJ then raised the possibility of proceedings being recommenced in the future, or an appeal being reinstated or refiled with leave.

Ainslie-Wallace ADCJ said to the plaintiff before the discontinuance occurred that:

To which the plaintiff replied:

This was in a context where her Honour had discussed with Ms Lambert the authorities that suggested that upon a discontinuance without a determination on the merits it may theoretically be possible to re-agitate an appeal.

Leave to discontinue was then given over the opposition of the Secretary and the granddaughter’s independent legal representative. They argued in opposition, putting very clearly that the District Court appeal, not the Supreme Court’s parens patriae jurisdiction, was the proper place to raise the issues which the plaintiff wanted to have agitated in relation to the granddaughter.

The only other procedural matter that should be mentioned is that on 31 October 2025 the plaintiff filed a proposed Amended Summons in this Court seeking to join a service provider, who formerly had some case management responsibility in relation to the granddaughter. This Court decided to hear the motion to strike out the proceedings before hearing and determining whether any other parties should be joined.

I adopt with gratitude Lindsay J's comprehensive summary in DB v Secretary, Department of Communities and Justice [2024] NSWSC 470 at [36] to [48] of this Court's parens patriae jurisdiction and its relationship to Care Act appeal proceedings. The passage set out below is particularly apt because it deals with the relevant law applicable on strike out applications where this same plaintiff has brought prior a parens patriae jurisdiction proceedings in this Court in parallel with the then existing Children’s Court proceedings:

At paragraphs [49], [50] and [51] Lindsay J warned of the hazards of conducting parens patriae and Care Act appeal proceedings in tandem and said:

What Lindsay J said, particularly at [51], is as relevant and applicable to the current application as it was to the application before Lindsay J when his Honour was considering the earlier strike an application for alleged abuse of process.

The course of the proceedings set out above allows the Court to emphasise several important matters in its analysis of what proper result should be on this motion.

By no later than the last week of May 2025, whatever concessions the plaintiff had made to the District Court, while conducting the District Court appeal proceedings in October 2024, he had changed his mind and wished to put in issue the question of who would have parental responsibility for the granddaughter. Consequent upon this change of mind he commenced these proceedings, seeking relief in the summons which substantially overlapped with the relief also being sought in the Care Act, s 91 District Court appeal, before the plaintiff made the express concessions that he did on 1 October 2024. Prima facie, the plaintiff’s simultaneous conduct of both proceedings seeking the overlapping relief that it did was an abuse of process simpliciter, which was probably little different from the situation earlier considered by Lindsay J.

The abuse of process in the commencement of these proceedings was compounded by the fact that the District Court appeal hearing had already occupied, not only nine hearing days, but a wide range of lay and expert witnesses before a specialist court. As so many authorities have repeatedly said, the statutory merits appeal which is available under Care Act, s 91 is the appropriate forum for the hearing and determination of the substantive relief in relation to parental responsibility which the plaintiff is seeking in his Summons in this Court. The Court can infer that the commencement of these proceedings was in the nature of the plaintiff seeking to keep his options open to de-risk the possibility of a loss in the District Court appeal.

Although the plaintiff is self-represented, the Court assesses the plaintiff as an intelligent and sophisticated man who comes from a background in employment with Government and with broad community experience and someone who can listen to the Court. He has shown excellent judgment in cooperating with the Court in attempting to obtain pro bono legal assistance.

It is therefore somewhat baffling to the Court, given the clarity of the observations of McGrath J, that the way that the plaintiff decided to resolve the prima facie abuse of process was to discontinue the District Court proceedings. Those District Court appeal proceedings under Care Act, s 91 were the procedural vehicle most suited to the resolution of all the issues in the best interests of the granddaughter. The plaintiff chose to discontinue those proceedings, rather than to discontinue these proceedings, which are far less suited to the purpose of acting in the best interests of the granddaughter.

But the choice to discontinue the District Court appeal proceedings was the plaintiff's own choice. The question now before the Court is, the plaintiff having done that, and in one sense having removed the duplicity of legal process by his own decision, whether he should now be allowed to continue these proceedings on the basis they have ceased to be vexatious or an abuse of process.

He should not for several reasons. It was the plaintiff's decision to discontinue the District Court proceedings which were most suited to the proper determination of the issues he wishes to raise. The authorities have consistently emphasised the exceptional nature of this Court’s parens patriae jurisdiction. It is usually only available to fill a procedural gap of some kind, often described as a situation of “exceptional circumstances”, which are not otherwise covered by the statutory jurisdiction available under the Care Act. It is not possible simply to augment the parens patriae jurisdiction by discontinuing parallel Care Act, s 91 statutory merits proceedings over the same subject matter.

It is not legitimate for a party to come to this Court and seek to invoke its parens patriae jurisdiction, on the basis that the party discontinued Care Act proceedings, and to submit that as a result of the discontinuance, the parens patriae jurisdiction is no longer an abuse of process and the parens patriae jurisdiction should in the particular case be extended beyond its normal operation.

Failing to invoke the appropriately structured Care Act statutory jurisdiction to determine the merits does not improve the argument to invoke this Court’s exceptional parens patriae jurisdiction. This jurisdiction remains exceptional in part because the Care Act statutory jurisdiction is the available jurisdiction best suited to determine the issues.

Moreover, were the plaintiffs argument to be accepted, this Court would be flooded with attempts (like this one) to invoke the parens patriae jurisdiction in competition with the specialist Children’s Court rather than invoke the Care Act jurisdiction. To further allow this would be inconsistent with the statutory purpose of the Care Act, not least because the interests of the child could not be treated as paramount where the parties were being distracted by competing litigation contests which would likely soon become unmanageable.

There are no exceptional circumstances here, as required by the authorities. This is particularly true where a combination of McGrath J in this Court and Ms Lambert and Ainslie-Wallace ADCJ in the Children’s Court expressly pointed out to the plaintiff that he must make his own decisions about how to resolve the duplicity of proceedings but that he should be cautious about discontinuing his Care Act, s 91 appeal.

The plaintiff's conduct is not the only issue here. The Court has listened to the oral submissions which the plaintiff has made and read his written submissions. Those submissions both praise the carer for the "amazing job that she has done thus far" and accept that she is "the child's psychological mother". But they express grave concerns about several matters. Those matters include (a) alleged misconduct by certain family relatives to secretly befriend and undermine the carer, (b) concerns about the Secretary's delay in the proceedings due to the production of a series of care plans, and (c) other matters, including the plaintiff’s concern that a non-indigenous child will now be raised as an indigenous person.

It is important to consider the broader context. Despite the contest which is taking place here, the plaintiff has demonstrated candid honesty about the present situation and he has the capacity to recognise some important truths. These include his unalloyed praise for the granddaughter’s carer and the consequent security of the granddaughter’s current placement. His concession, together with the current evidence of Ms Starkey, confirms in the Court's mind that a dismissal of these proceedings will not create any immediate risk in relation to the granddaughter’s welfare.

But the other matters that the Plaintiff raises, the four years of litigation and the alleged misconduct by the relatives should be addressed briefly. It must be said that the four years of litigation has partly been caused by the way that the plaintiff himself has conducted these two sets of Supreme Court proceedings, in parallel with the Care Act, s 91 appeal.

As to the alleged misconduct by family relatives, that matter was partly explored in the Care Act s 91 appeal proceedings. The plaintiff denied himself the opportunity to pursue that issue further by discontinuing those proceedings. That self-denying conduct means it is difficult for him to use further investigation of this issue as an argument to now continue these proceedings.

As to raising the granddaughter in a different culture, the Court would point out that in the granddaughter’s interests the plaintiff does have continuing rights under Care Act, s 86 to apply for greater contact and, ultimately, unsupervised contact with her to reassert the important strengths in the relationship that he has with her. He could make application, upon a change of circumstances, to have such further contact.

But in the end, in the Court's view, it is in the best interests of the granddaughter who, since her birth, has had one stable parent figure, but who has been indirectly affected by parallel litigation in the District Court and the Supreme Court, to have the grave uncertainty of this litigation finally removed. These proceedings remain an abuse of process and should be struck out. They may also be characterised, not as frivolous but certainly as vexatious and the proceedings will be therefore struck out on that basis as well.

The Court wishes to make clear that by these reasons it neither forms nor expresses any view about whether the District Court appeal proceedings can or should be reinstated, but nothing said in these reasons should be taken as an indication that that those other proceedings should be reinstated.

Costs should follow the event but the costs order should be stayed unless the plaintiff commences substantially similar proceedings in the future.

Accordingly, the Court makes the following orders and directions: