Re Christopher

These proceedings are brought by the Secretary of the Department of Family and Community Services (“FACS”) and concern a child whose name has been anonymised for the purpose of these proceedings, and to whom I shall refer to as “Christopher.” The defendants are persons who have published material concerning Christopher, which material I shall describe in more detail below.

Christopher is [Redacted]. He was removed from the care of his parents on [Redacted] pursuant to an order of the Secretary of FACS on the grounds that Christopher was “at immediate risk of serious harm”. [Redacted]

The order was issued pursuant to s 43(1) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the CYP Act”).

Christopher was taken from his parents on [Redacted]. Present on that occasion, in addition to Christopher, the parents of Christopher (to whom I shall refer as “the parents”), several caseworkers from FACS, and the Police, were Mr Burton, the second defendant (Mr Andrew Katelaris), and [Redacted]. [Redacted] subsequent removal by ambulance of Christopher. The footage was streamed live to Facebook.

Christopher was immediately taken to the [Redacted] Hospital for assessment and treatment.

On [Redacted], care proceedings were initiated in the Children’s Court of NSW with respect to Christopher, pursuant to s 61 of the CYP Act.

On [Redacted], the Children’s Court allocated all aspects of the parental responsibility for Christopher to the Minister for FACS, pursuant to s 69 of the CYP Act.

A hearing concerning Christopher’s future has been fixed before [Redacted] of the NSW Children’s Court in [Redacted] with a directions hearing to occur in [Redacted]. The parents are parties to those proceedings and will both be legally represented, and an independent legal representative has been appointed to act in Christopher’s interests.

The second defendant, Mr Katelaris, calls himself Dr Katelaris. He informed me that he holds a Bachelor of Medicine, Bachelor of Surgery, and a higher degree, which he says entitles him to the title of “Doctor”. He informed me that he was a registered medical practitioner, but that he was deregistered some years ago due to his use of cannabis in the treatment of patients suffering from epilepsy. He informed me that [Redacted] and it is clear from a document that Mr Katelaris tendered (Exhibit 2) that Mr Katelaris has involved himself in steps taken in connection with Christopher’s conditions, and as an advocate for the parents’ treatment of Christopher. Exhibit 2 is a letter, or email, which Mr Katelaris sent to [Redacted]. In that letter Mr Katelaris states:

Mr Burton referred to Christopher as his ‘client’ (see: Exhibit 3) and, as mentioned previously, Mr Katelaris told me that he was a consultant to the parents. It is clear from Exhibit 2, the documents in Exhibit 3, and from what Mr Burton and Mr Katelaris have said in Court that they regard themselves as ardent supporters of Christopher’s parents and are vehemently opposed to the removal of Christopher from the parents’ care, which they describe as a kidnapping. They also express their love and affection for Christopher and they believe that the treatment which was being given to Christopher before his removal into care was assisting him and not detrimental to his welfare.

The matters to which I have referred provide a background and some explanation for what has later transpired. The defendants view the FACS’ conduct as wrong and unlawful, and as a form of harassment of the parents, and are extremely critical of the Secretary and his Department (and the [Redacted] Child Protection Services). They appear to see themselves as crusaders for a cause which centres on ensuring that Christopher is returned to his parents, but includes an attack on FACS and other agencies Australia wide for interfering in the lives of parents in cases including, but not limited to, Christopher’s.

Mr Katelaris sought to persuade me that the medical evidence does not support the Secretary’s claim that Christopher was [Redacted], and that this Court should refuse the relief sought by the Secretary and perhaps even intervene and return Christopher to his parents. Mr Katelaris described himself and Mr Burton as “community activists.”

It is important to recognize that:

It is also pertinent to note that should the parents, or their legal representatives, or Christopher’s legal representative, wish to rely on the evidence of Mr Katelaris or even the themes of his evidence, to put it more broadly, they are free to seek that assistance and Mr Katelaris is free to provide that assistance. When I pointed this out to Mr Katelaris he, or Mr Burton, said that the parents were prohibited from contacting them and had not contacted them. The parents may not have contacted them, but counsel for the Secretary denied that any order has been made preventing the parents from contacting the defendants and he produced to the defendants a copy of the orders made by the Children’s Court (which apparently preclude the parents from giving any information to anyone concerning the current whereabouts of Christopher). I do not accept that there is any prohibition of the kind asserted by the defendants and, as counsel for the Secretary pointed out, there is, in any event, no assertion that the legal representatives of the parents (or the independent legal representative for Christopher) have been barred from contacting the defendants.

I return to the issues with which the proceedings in this Court are concerned. The Secretary asserts that there is, contained on the Facebook page of the defendants, material which:

An officer of FACS wrote, by email, to both defendants on 6 July 2017 pointing out to them the terms of s 105 of the CYP Act and the orders made by the Children’s Court on [Redacted] and [Redacted], requesting that material posted online by them be removed: see tab 5 of Exhibit A. On 7 July 2017, the Director of Child Protection of FACS legal wrote in similar terms to the defendants.

Mr Burton did take steps to pixelate the faces of FACS caseworkers who appeared in the footage of the removal. Counsel for the Secretary accepted that, with that pixilation, the FACS caseworkers cannot be identified in the footage. Beyond that, however, it is unclear to what degree Mr Burton has complied with the requests. On 11 July 2017 Mr Katelaris published the letter of 7 July 2017 that he had received from FACS and his reply: see pp 67 – 68 of Exhibit A. Mr Burton published on his website his response to FACS’ letter of 7 July 2017.

The Crown Solicitor’s Office wrote to the defendants on 13 July 2017 advising that if the offending material was not removed, proceedings would be commenced in this Court seeking orders to the same effect. The defendants failed to remove all of the material and the Crown Solicitor approached the Court on Friday 14 July 2017. The Secretary relies on an affidavit of a solicitor from the Crown Solicitor’s Office of 14 July 2017, together with an exhibit to that affidavit, which was marked as “Exhibit A”. The Secretary was represented by counsel and the defendants represented themselves.

Mr Burton’s willingness to adhere to the requirements of the orders and the CYP Act are unclear. He has, in an email to the Director of Child Protection at FACS, said:

I set out the terms of s 105 of the CYP Act:

The order made by the Children’s Court on [Redacted] prohibited publication of information that “would identify or tend to identify individuals within the following groups of persons connected with proceedings, except for the purpose of the proper conduct of the proceedings”:

The order made by the Children’s Court on [Redacted] prohibited the publication of “information that comprises evidence or information about evidence, given in proceedings before the Court, except for the purpose of the proper conduct of the proceedings” which included photographs and electronic recordings relating to the medical condition or treatment of Christopher by medical professionals employed at [Redacted] Hospital, and any information relating to the treatment of Christopher with [Redacted] by other persons.

There are four issues which need to be dealt with:

[Redacted]

In evidence at tab 7 of Exhibit A is a USB which contains footage from Mr Burton’s Facebook page. It includes an interview by Mr Burton with Mr Katelaris in which Mr Katelaris refers to the details of Christopher’s condition and his treatment. It includes footage of the removal of Christopher and interaction between the parents, police, Mr Burton and Mr Katelaris and Mr Burton reporting on his having been pepper sprayed by police during a confrontation.

The defendants do not dispute that their Facebook pages includes material about which the Secretary complains (although, as I have noted, Mr Burton points out that he has now pixelated the caseworkers’ faces) and do not dispute that they have not removed all of the material when requested to do so.

This leads to the question of whether this Court has power to order removal.

Section 105 prohibits the publication of the name of a child (or young person). Section 105(2) makes the infringement an offence, imposing a penalty of 200 penalty units or imprisonment for a period not exceeding 2 years or both. Subsection (1C) makes it clear that publication to a website is publication for the purposes of s 105, and subsection (5) makes the offence one of strict liability.

The Court Suppression and Non-Publication Orders Act 2010 (NSW) (“the Suppression Act”), pursuant to which the Children’s Court made orders on 25 and 31 May 2017, permits a Court to prohibit the publication of information on various grounds, set out in s 8 as follows:

Section 16, which deals with contravention is in the following terms:

Counsel for the Secretary accepted that, generally speaking, this Court will not grant an injunction to prohibit the commission of a crime, and that normally where a crime has been committed the criminal law follows its own course. He submits that the parens patriae (the parental responsibility jurisdiction) is not constricted in this way. In Secretary, Department of FACS v Smith [2016] NSWSC 1384 and [2017] NSWSC 6, a judgment not readily available because it was suppressed, but to which my attention was drawn, Brereton J rejected the contention that s 105 of the CYP Act of itself permitted the Court to grant an injunction, but based on the parens patriae jurisdiction did grant an interim injunction, although his Honour later refused to grant a permanent injunction on grounds that are not relevant to the present matter.

The breadth of the parens patriae jurisdiction is very wide: see Secretary, Department of Health and Community Services v JWB and SMB (1991) 175 CLR 218 p 258 per Mason CJ, Dawson, Toohey, and Gaudron JJ. Also see Young, Croft and Smith, On Equity, (Thomson Reuters/Lawbook Company 2009) at [4.210].

Counsel for the Secretary also relied on s 66 of the Supreme Court Act 1970 (NSW). It provides that the Court may grant an injunction at any stage of the proceedings to restrain any threatened or apprehended breach of contract “or other injury” and may at any stage of proceedings grant an interlocutory injunction “in any case in which it appears to the Court to be just or convenient so to do.”

Given that the injunction which is sought is not sought in aid of any other proceedings in this Court, I have some doubt as to whether s 66 can be availed of here and I prefer to base myself on the power of this Court to act on behalf of, and in the interests of, children. In relation to that power, the overriding concern is the protection of the interests and welfare of the child or children.

I turn now to the question of whether the Court should make the orders sought by the Secretary. In saying what I do about the matter I do not wish to pre-empt the full consideration of matters in the context of any criminal prosecution which might ensue, but I, nevertheless, find, for the purposes of these proceedings, that the defendants have breached s 105 of the CYP Act by publishing the material they have published. Lack of knowledge of the statute is not a defence and the Act provides that liability is strict. They have also breached the non-publication orders of the Children’s Court. If s 105 of the CYP is designed to protect the welfare of children, which I accept it is, and if the orders made by the Children’s Court were made to protect the interests of the child, and I accept they were, then anything which this Court can do to ensure compliance with those orders of the Children’s Court, and with that Act, is, in my view, justified as an exercise of power.

I shall endeavour to summarise the defendants’ arguments against making an order requiring the removal of the offending material:

In relation to [36(6)], I should note that Exhibit A contains an example of an article appearing in a mainstream media outlet (not the one identified by Mr Katelaris or Mr Burton in his letter to FACS of 7 July 2017, see Exhibit 3), but that article does not name Christopher or his parents. I do hold some concern that the offending material has been in place for quite some time and hence removal will have a limited impact. However, the Department has been trying since 27 June 2017 to have the defendants remove the material and I do not think that the delay in bringing these proceedings is sufficient to preclude the grant of relief sought. It is a factor which needs to be taken into account in determining the utility of an order, and I take it into account.

I enquired of counsel for the Secretary as to whether FACS has attempted to utilise assistance of a third party to deal with the material on the defendants’ Facebook pages. He informed me that, in addition to contacting the Police and Director of Public Prosecutions with a view to the initiation of criminal proceedings, the Crown Solicitor has written to Facebook, but has not received any confirmation of a willingness to assist, and he informed me that Facebook has no presence in the jurisdiction. The absence of a presence in the jurisdiction is a matter of potentially wide ranging importance which deserves consideration by the legislature.

In my view this Court cannot permit persons to continue to breach s 105 of the CYP Act when they have been clearly put on notice of the terms of the Act and of their infringement of the Act. The legislature clearly intended that children who are the subject of FACS investigations or actions and Children’s Court proceedings should not be identified. There are reasons personal to the child and his parents and their privacy for that prohibition. Similar considerations are no doubt behind the legislature’s enactment of the Suppression Act. The Children’s Court obviously held the view that it was inimical to the continued welfare of the child that doctors (and caseworkers) involved in his care be identified and hence be discouraged from participating in these steps out of a fear of abuse or worse by those supporters of the parents of Christopher, even if unlikely. That these supporters hold strong views is demonstrated not only by what Mr Burton and Mr Katelaris have said in the course of the hearing on Friday and on their website but also because persons expressing concern in respect of the removal of Christopher on Facebook have described the FACS caseworkers as being involved in the “traffic” of children “for the State”, “stealing children” and being part of a “State sponsored child abuse ring”: see pp 6-9 and pp 10 – 17 of Exhibit A, which contains photographs of several caseworkers or managers with FACS. Similar sentiments are contained in Mr Burton’s email to FACS of 7 July 2017 (see: Exhibit 3), which includes his warning that if FACS:

What I have said in [39] links to an additional point, which is that one of the reasons for suppression or non-publication orders in s 8 (and one of the matters identified in the orders made by the Children’s Court) is:

The maintenance of offending material on the website provides no benefit to Christopher or his parents since Christopher’s future will not be determined by anyone other than the courts of this state, acting impartially and on the basis of evidence and arguments presented.

In my view this Court is required to take into account matters of the sort to which I have referred in deciding whether to lend its aid to ensuring that the orders of the Children’s Court and the requirements of s 105 are adhered to, and adhered to strictly. The welfare of a child is imperilled if legislation designed to enhance the welfare of the child is contumaciously ignored, as the defendants appear to believe they are free to do.

Accordingly, I conclude that the defendants should be required to remove the offending material and be injuncted from any further publication.

Counsel for the Secretary has provided proposed orders that are sought. Attention will need to be given to the precise orders to be made, which, in my view, need to include a specific time by which the material be removed from the defendants’ Facebook sites, and a notice to the defendants of the consequences of the failure to comply with the orders.

I will hear the parties on the issue of costs.