GR v Secretary, Department of Family and Community Services and Justice & Ors (No 4)

This judgment may be conveniently read as a continuation of my judgment in GR v Secretary, Department of Family and Community Services and Justice & Ors (No 3) [2020] NSWSC 259 (“No 3”). These reasons should be read in conjunction with that judgment.

After a hearing last Friday, which itself was adjourned briefly while the Court of Appeal delivered its judgment in GR v Secretary Department of Family, Families, Disabilities and Community Services [2020] NSWCA 79 (the “CA Judgment”), the Court determined a notice of motion brought by the first and second defendants (the “Department”) for the dismissal of the mother’s amended summons in these proceedings.

That motion was granted because:

The orders which I made last Friday, and which are the subject of these reasons, were:

On the hearing of the Department’s motion, the mother appeared for herself. Mr M Anderson of Counsel appeared for the Department, Mr D Brezniak of Counsel appeared for the father and Ms E Stolier of Counsel appeared for the child’s independent legal representative.

In paragraph [7] of No 3 I set out a list of the numerous judgments which the litigation in relation to the child has produced. The CA Judgment and these reasons should now be added to that list.

By her amended summons dated 5 March 2019, the Mother seeks these orders:

On 29 November 2019, after a two day hearing, I made orders (the “Remaining Orders”) which included:

I explained the rationale for those orders in my judgment GR v Secretary Department of Family and Community Services and Justice and Others (No 2) [2019] NSWSC 1725 (“No 2”):

On 5 March 2020, the Department filed its notice of motion (which is the subject of this judgment) and sought relief which included:

On 6 March 2020 I stood over that notice of motion to the Registrar’s List on 10 August 2020 and granted liberty to the Department to apply to my Associate to restore the motion if “it appears that any amendment is required to any earlier order of this Court as a result of the final orders to be made by the Children’s Court as a consequence of the judgment of the President of that Court delivered on 27 February 2020”. I made that direction because the mother had acceded to my suggestion that her amended summons (see paragraph [7] above) be stood over, in effect, to abide the outcome of her foreshadowed appeal from the Children’s Court. The Department relisted its motion pursuant to the liberty which I had granted once the final orders of the Children’s Court had been made.

On 3 April 2020, by a further judgment published on that date, the President of the Children’s Court accepted the adequacy of an amended care plan in relation to the child and made these final orders:

The President’s further judgment explaining those orders included:

The amended care plan which the learned President took into account in making the final orders provided that each of the mother and father would have contact with the child for a minimum of once a month for a period of two hours, with the contact being dependent on the child’s wishes (my emphasis).

On the same day (3 April 2020), the mother filed a notice of motion in these proceedings which sought:

On 9 April 2020, the mother filed a notice of motion in the Court of Appeal which sought:

That notice of motion was dismissed by the CA Judgment delivered on 24 April 2020.

On 24 April 2020, the mother filed her summons commencing her appeal from the decision of the Children’s Court. Because that appeal is from a decision of the President of that Court, the appeal lies to a single judge of this Division.

On 15 April 2020, acting in accordance with the advice of the child’s treating doctors, the child was discharged from hospital to live in out of home accommodation under the 24 hour supervision of care workers. This occurred after what was described by the hospital as “successful establishment of two regular meals a day, with weight stability at ~ 42kg”. According to the evidence, from 17 April 2020 the child ate some meals, albeit intermittently and irregularly. On 21 and 22 April he refused food and was readmitted to hospital.

A report from one of the child’s treating paediatricians made on 23 April 2020 recorded:

At the hearing before me on 24 April 2020, I was informed by Mr Anderson that his instructions were that it was hoped that the child would be discharged from hospital on that day, but that had not yet occurred.

With no disrespect intended to the careful way in which they were put, the submissions made on behalf of the Department and the independent legal representative may be summarised as:

Mr Brezniak, on behalf of the father, submitted that, with limited practical exceptions (for example there probably being no need for the parents now to be educated in nasogastric feeding), the Remaining Orders should continue. He drew attention to these matters:

The mother adopted the submissions made by Mr Brezniak on behalf of the father. She also emphasised, in the strongest terms, her fear that the child would die if he were not restored to her care.

I accept the Department’s submission that, notwithstanding his rehospitalisation, the evidence is clear that the child’s medical circumstances are not so serious as to constitute exceptional circumstances warranting the continuing intervention by this Court in its parens patriae jurisdiction. When that fact is combined with the Children’s Court having now made final orders, including on the basis of a contact plan inconsistent with that provided for in the Remaining Orders, the outcome in the Children’s Court should prevail (unless and until altered on appeal). Applications in the parens patriae jurisdiction are not to be made in a way which circumvents the prescribed appellate process from courts of specialist jurisdiction.

The conclusions in the preceding paragraph are sufficient to warrant the Remaining Orders being vacated. As the learned President noted (see paragraph [13] above), not everything in the Remaining Orders was inconsistent with the final outcome in the Children’s Court. On the other hand, the existence of those orders meant that at least one course which the President wished to have followed in relation to the mother was not open to him (see paragraph [100] of the President’s judgment quoted in paragraph [13] above).

Turning to the terms of the Remaining Orders themselves, Remaining Orders 1 and 2 have, in any event, expired in accordance with their terms. Order 1 was made until further order of the Children’s Court. Such an order was, on any view, made on 3 April 2020 when that Court’s final orders were made. Furthermore, the proposed treatment plan referred to in Order 1 (the terms of which appear in the Annexure to No 2) related to a process up the point at which the child might leave the hospital. Events have now moved on.

Insofar as the orders referred to in Remaining Order 8, they were made in very different circumstances. The purpose of those orders as explained in No 2 is reproduced in paragraph [9] above. At the time those orders were made, the child was still in hospital. There had been no determination by the Children’s Court about his future care arrangements or in whom parental responsibility would be vested. The purpose of the regime which I ordered was to give the parents an opportunity to demonstrate their suitability to care for the child in a way that might be able to be taken into account at the hearing in the Children’s Court. Given the Children’s Court proceedings have now concluded, the purpose of those orders has now been completely spent.

What I have written thus far explains why, to the extent they had not already expired according to their terms, the Remaining Orders were vacated. The reason why the proceedings themselves should be terminated by the peremptory dismissal of the amended summons is slightly different. As is apparent from the amended summons set out in paragraph [7] above, the purpose of these proceedings brought by the mother is to recover the child. The mother has now filed her appeal from the decision of the Children’s Court. That appeal seeks to overturn the decision of the Children’s Court and for her to recover parental responsibility for the child. It is an abuse of process for there to be two sets of proceedings extant which, in effect, seek the same relief. Subject to the two reservations which I set out below, there is now no proper purpose for the continuation of the present proceedings. I therefore dismissed the amended summons .

As a matter of procedure, the appeal is now the appropriate vehicle for any interlocutory regime that the mother may wish to seek from the Court. So much was also apparent from Mr Brezniak’s submissions which I have set out in paragraph [23] above. As I put to him during the course of argument, what those submissions were really directed to was putting into place a regime that was inconsistent with the final orders of the Children’s Court pending the determination of the mother’s appeal.

Such an application, and arguments to that end, are not to be entertained in these proceedings. If the mother chooses to make an application to like effect in the appeal proceedings, that is her right. The juridical basis for that application will be different to the present case, because it will not involve the parens patriae jurisdiction. Any such application will have to be determined by reference to the principles which govern what relief the Court might grant pending an appeal.

The amended summons was dismissed subject to two reservations.

First, in her motion dated 3 April 2020 (see paragraph [15] above) the mother included prayers for relief in relation to alleged contempts of the Court’s orders. Whatever the merits of that application, the Court has not been specifically asked to dismiss it summarily. So much of that motion as relates to the claim for contempt should be allowed to survive the dismissal of the balance of the proceedings, so that the claim can continue to be case managed in the ordinary course by the Registrar.

Second, in No 3 I made orders intended to put some restraint on the mother’s frequent applications to the Duty Judge. My orders were themselves further refined by subsequent orders made by Robb J. The history of this matter suggests that the mother, and perhaps the father, will continue to make urgent applications in relation to the child pending the determination of the mother’s appeal. As I acknowledged in No 3, the child’s circumstances are such that a future requirement for urgent intervention in the parens patriae jurisdiction cannot be excluded.

It follows that my and Robb J’s orders in relation to how the parents can approach the Duty Judge should also survive the substantive termination of these proceedings, until further order. Those orders will therefore apply to any urgent application which the mother may make to the Duty Judge within her appeal proceedings.

In that context, I should record my acceptance – on the basis of the Department’s evidence as it was before me – that the description of the child’s future treatment as “two steps forward, one step back” is likely to be accurate. I respectfully repeat and add my agreement to this observation made by Basten JA in the CA judgment:

It is to be hoped that, in particular, the mother will come to understand that not every set back or vicissitude which the child may experience during the course of the implementation of the outcome in the Children’s Court will justify the urgent intervention of this Court in its parens patriae jurisdiction. It is very much to be hoped that such a circumstance does not arise. If it does arise, and the mother is able to provide medical evidence in support, then the Court will deal with that application. In the meantime, I urge the parents (as I have on previous occasions) to co-operate fully and respectfully in the implementation of the current arrangements for the child under the parental responsibility of the second defendant. For them to do so is in the child’s best interests and by no means inconsistent with their diligent and expeditious preparation for the hearing of the mother’s appeal.

Finally, while these reasons were being prepared, the Court was informed that the Department did not seek any costs orders in relation to the proceedings, over and above those that may have already been made in the past. It was therefore not necessary for me to make any costs order to complete the orders which were made at the conclusion of last Friday’s hearing.