CH v Secretary, Department of Communities and Justice & Ors

The plaintiff, CH, is the paternal grandmother of the youngest two of four children – C1, C2, C3 and C4 - who are the subject of these proceedings. The children are now aged respectively 13, 11, 8, and 2 and a half. The children are all in the care of the Minister for Communities and Families (“the Minister”). On 30 April 2025, the plaintiff made an application by Summons in the Equity Duty list, seeking orders under the Court’s parens patriae jurisdiction for the removal of the children from the Minister’s care, and for them to be placed in her care and that of her husband, JT. She also sought that she and her husband be granted full parental custody for the children.

The plaintiff’s purpose in bringing this application was focused in the first instance in preventing the placement of CH’s youngest grandchild, C4, into the potentially permanent care of a non-kin carer, which was due to be finalised this coming Sunday, in two days’ time, 18 May 2025.

The plaintiff, even with the assistance of service orders from the Court to aid her, was unable to engage with or receive any satisfactory response from the first defendant, the Secretary of the Department of Communities and Justice (“DCJ”), until as late as 6 May 2025. This led to the matter coming before the Court only shortly afterwards, and the final hearing of the matter being delayed until Thursday 15 May 2025.

That delay in communication with DCJ was regrettable and ultimately meant that the final hearing of the plaintiff’s Summons was compressed into the back end of this week, commencing at shortly after 2pm today, 15 May 2025, and finishing at 7.15pm with these oral reasons. The Court did its best to accommodate what then of necessity became an urgent hearing, given the imminent final transfer of C4 to her new placement on Sunday. This delay diminished the opportunity for the Court to hold a well-organised and timely hearing where the issues could be properly weighed for the benefit of the children. Instead, the Court was forced to consider the welfare of the children in sub-optimal circumstances. This situation points to the need for a single, well-publicised, readily accessible and responsive point of contact within DCJ for all such urgent parens patriae and similar applications brought to the Supreme Court.

The first defendant filed a competing Notice of Motion for the dismissal of the plaintiff’s Summons pursuant to Uniform Civil Procedure Rules 2005, r 13.4 (“UCPR”). The Court does not have to consider this Notice of Motion, because the issues that it raised were dealt with on the plaintiff’s Summons in the exercise of the Court’s parens patriae jurisdiction.

Following her engagement with the first defendant, as indicated the plaintiff narrowed the scope of her initial application to limit the urgent relief being sought in the first instance, to focus upon the youngest child, C4, because of her imminent new placement. CH indicated that she would seek relief in relation to the other children, once the immediate issue with C4 had been dealt with.

The Court made directions for the joinder of other parties in the proceedings to ensure that everyone affected was represented. The Secretary of DCJ was joined as the first defendant. The father, the plaintiff’s son, was joined as the second defendant.

The mother of all four children was joined as the third defendant. The father is the father of C3 and C4. The three youngest children, C2, C3 and C4 were joined respectively as the fourth defendant, the fifth defendant and the sixth defendant. C1 was joined as the seventh defendant but the Independent Legal Representative for C1 indicated that C1 did not wish to be represented at the hearing.

The Court was much assisted by the legal representatives of the parties in preparing for and holding this urgent hearing. The plaintiff, CH, represented herself as did the father, the second defendant. Mr B Dean of counsel appeared for DCJ, the first defendant, instructed by the Crown Solicitors’ Office. The mother, the third defendant, was represented by Mr Peter Ryan, solicitor. Ms Karina Giblin of Kathryn Renshall Lawyers appeared as the independent children’s lawyer for the three youngest children, C2, C3 and C4, the fourth, fifth, and sixth defendants.

These reasons are not a comprehensive account of the relevant facts, nor all the contentions advanced by the parties. The bundle of materials produced for the Court was gathered at short notice and the relevance of much of the material fell away by reason of the narrowing of the scope of relief sought to the immediate situation of C4.

The plaintiff, CH, has an extensive personal work history in international relief operations. The quality of her submissions and her presentation of her case to the Court as a self-represented litigant, evidenced her considerable managerial skills. CH’s conduct of these proceedings is characterised by unremitting efforts to do her utmost for her youngest granddaughter C4, as she perceives it.

The chronology of events, as it relates to CH’s present application, commences in August 2022.

2022 – Commencement of Children’s Court proceedings. Following reports concerning the welfare of the children, DCJ commenced proceedings on 10 August 2022 in the Children’s Court seeking the allocation of parental responsibility for the three eldest children to the Minister, until each child attained 18 years pursuant to Children and Young Persons Care and Protection Act 1998 (“Care Act”). Interim orders were made in favour of DCJ on 12 August 2022.

On 18 December 2022, about the time of C4’s birth, the mother and the father abducted C1, C2 and C3 during a supervised contact visit and took them to Queensland where CH resides. The circumstances of the abduction are set out in the sentencing decision of the father and need not be repeated in these reasons.

On 22 December 2022, the three children were located by Queensland Police at the home of CH and her husband. Following the abduction the father and the mother were charged with offences under Crimes Act 1900, s 87 of taking or detaining the children with intention to remove them from the lawful control of any person having parental responsibility without their consent, in this case, from the Minister. The father and mother ultimately pleaded guilty to the charges.

Although the Court was invited to do so, and submissions were heard on both sides on the issue, it is not necessary for the Court on this application to make findings about the level of CH’s knowledge of the circumstances surrounding the abduction of the children on 22 December 2022. The Court decides this application on other grounds.

On 28 March 2023, the plaintiff and her husband (“JT”) applied to be joined to the Children’s Court proceedings. On 20 September 2023, she amended that application to include a claim that the children be placed with her and JT with them having joint parental responsibility, or alternatively, JT having sole parental responsibility.

2024 – Hearing of the Children’s Court proceedings. The Children’s Court proceedings were heard from 15 to 25 July 2024. During the opening of the hearing, it was conceded by the mother, through her solicitor, that the possibility of restoring the children to her within a reasonable period as a relevant consideration for the Secretary’s permanency planning under Care Act, s 83(1), (2) and (8A) was not realistic.

This concession to the Children’s Court was appropriate to the mother’s then circumstances. She was in custody at this time on the charges of child abduction. It was also indicated to the Children’s Court that the father had by that time pleaded guilty to the same offences and was due to be sentenced.

These concessions were made in the following terms in the Children’s Court hearing by Mr Ryan on behalf of the mother:

On 25 July 2024, the father and CH made similar concessions. The father was legally represented at the time however, CH was not. CH was asked by the judicial officer of the Children’s Court whether she would like to take the opportunity to obtain legal advice. She declined.

The following exchange occurred between the Bench and the parties on 25 July 2024, namely CH, JT, Ms Spain for the father, and Mr Anderson of counsel who appeared for the Secretary in those proceedings:

An Amended Care Plan was filed after hours on 25 July 2024. On 26 July, the Children’s Court determined the applications by making inter alia final orders pursuant to Care Act, s 79(1)(b) that each of the children be placed under the parental responsibility of the Minister until they attain 18 years of age.

CH was not present in Court on 26 July on account of her feeling unwell. Prior to approving the Amended Care Plan and making the final orders, the Children’s Court allowed a short adjournment for the father and JT to have an opportunity to review the Amended Care Plan and the Contact Review Plan. But for minor amendments requested by the father, they were approved without opposition.

The children have been under the sole parental responsibility of the Minister since the final orders were made on 26 July 2024.

C4 has special needs. She has been diagnosed with autism spectrum disorder and has other developmental needs for which she requires occupational and speech therapy. C4 has been assessed by healthcare professional as meeting the DSM-5 criteria for autism spectrum disorder requiring level 1 support for deficits in social communication and requiring level 2 substantial support, for restrictive, repetitive behaviours. For example, C4 has been referred to a specialised feeding support service to assist and improve mealtime experiences for her.

CH submits that C4’s diagnoses include an attachment disorder. The material before the Court suggests that she does have an attachments disorder of some significance and one of her treating paediatric specialists says of that:

C4 has been in the care of child protection authorities since she was one day old and has lived in Western Australia. The immediate issue giving rise to the present application is that the plaintiff seeks this Court to intervene and prevent the first defendant from finalising the steps necessary to transfer her to the new placement.

Prior to the Children’s Court proceedings, C4 lived with one foster carer between her birth in December 2022 and July 2023. At the time the Care Plan for the Children’s Court proceedings was filed, C4 had been living with a great aunt. The Amended Care Plan provided for her to be placed with a different aunt. And since August 2024, C4 has been in the care of that aunt and her partner, RR and DR, also in Western Australia.

The Amended Care Plan, in the “Contact Arrangements” section, provides in relation to C4’s supervised contact with family members as follows (a) to be built up with the mother up to 6 times per year after her release from custody, (b) to take place with the father, CH and JT six times a year, and (c) that all of C4’s siblings should have contact with her 12 times a year at a minimum. The purpose of this contact is as the amended care plan says, “to maintain identity and meaningful relationship between [C4] and [the father]”.

2024 – The father’s sentencing, a change of circumstances, and an appeal. On 13 September 2024, the father was sentenced for the take and detain offences he committed in December 2022. He was convicted on both counts and sentenced to a community corrections order pursuant to Criminal (Sentencing Procedure) Act 1999, s 8 for a period of two years and required to perform a total of 200 hours of community service work and otherwise subject to the ordinary conditions of a Community Corrections Order. The basis for this sentence was that at the time of the offending, it was accepted that he genuinely believed that the children’s lives were in danger due to threatening messages which had apparently been received concerning them. But it appears that the messages were fake and the mother was their author.

The concessions made by the father during the Children’s Court proceeding that the possibility of restoration of the children to him was not realistic was made on the basis that he was facing an impending sentence that could carry a custodial sentence of up 10 years under Crimes Act 1900, s 87(2). Such a sentence would have been beyond the reasonable period of 24 months for possible restoration: Care Act, s 83(8A).

Then, following the conclusion of some related apprehended domestic violence order (ADVO) proceedings, the father filed his Summons for appeal to the District Court against the July 2024 Children’s Court orders on 18 November 2024. Given the then recent resolution of his other matters, this probably was the first reasonable opportunity for him to file an appeal that might have had any prospects of success.

Approximately 6-months after the conclusion of the Children’s Court proceedings, C4’s relative who had been caring for her informed DCJ that she was no longer willing to continue her care for C4. In consultation with the current carer DCJ identified new potential carers. By late 2024, steps were being planned and taken to facilitate the smooth transition of C4 over to her new carers.

On 17 February 2025, a casework manager emailed the father informing him of the proposed change in the care of C4. The father forwarded this email to CH the following day. The email stated:

CH sent DCJ emails on 18, 20 and 26 February 2025 in which she proposed herself and her husband, JT, as appropriate new carers for C4. This proposal was rejected by the first defendant on 4 April 2025. Shortly afterwards, on 10 April 2025, after undertaking her own legal research, CH applied to the New South Wales Civil and Administrative Tribunal (“NCAT”) for relief to review the decision of the first defendant to reject CH’s February 2025 proposal. After further research CH came to appreciate that NCAT did not have relevant jurisdiction to review the first defendant’s decision. Finally, CH brought these proceedings in the Duty list, on 30 April 2025.

In the meantime, C4’s transition into the full-time care of her new carers was being planned. Transition began on 2 May 2025, by a program of slowly increasing contact between C4 and her new carers to build a relationship of familiarity. As at the time of the hearing, C4 was due to commence living with them from 18 May 2025.

On 18 November 2024, the father attempted to file appeal papers seeking to appeal from the orders made by the Children’s Court on 26 July 2024. It is understandable that the father did not commence his appeal prior to being released from his ADVO as an appeal would have had little prospect whilst the ADVO was operative. Due to an unsatisfactory series of events, his appeal was not commenced due to the apparent loss of appeal papers. The circumstances surrounding that loss are explained in more detail in this section.

Following CH’s initial appearances before this Court, she and this Court took further steps to ascertain what had happened to the appeal papers the father had lodged in the District Court Registry. These inquiries led to a formal communication and apology from the District Court, that although the father had indeed lodged the papers for the appeal at the DC Registry, they did not receive a file number and later went missing.

Unfortunately, the father did not take any effective steps between 18 November 2024, when he filed his appeal, and the filing of CH’s application in this Court, to follow up the status of his appeal through the District Court Registry. The father said, in answer to the Court’s questions about his inaction on this subject since November 2024, that he did not know how long the District Court would take to move on with the appeal. He says, and this Court accepts, that he did make some inquiries about the progress of the appeal after November 2024. But he explained, “Because I didn’t lodge the application, I was told I didn’t have a right to inquire about it.”

He seems to have been told by the DC Registry that as there was no Court file generated for his appeal, that he had no right to make enquiries. Such a response by the District Court staff through whom he was making his enquiries is understandable. Because in error the papers he filed were not given a file number, there was no file (either under his name or with a number that he could quote) for them or him to search. Unfortunately, neither he nor those to whom he enquired, seem to have been alerted to the fact that there might have been a Registry error resulting in the loss of the papers. All that can be said is that Registry error is probably not the first conclusion that might be drawn in response to an enquiry such as that made by the father.

This Court’s own enquiries of the District Court Registry during this hearing produced the improved outcome now available to the parties. It has been acknowledged that the father did file appeal papers and his appeal is being reinstated. This Court received correspondence from the District Court Registry, which showed that the District Court had appropriately applied resources to thoroughly investigate what had happened with the appeal summons and apologised for the administrative error that had occurred. This correspondence said:

Three things should be observed at this point. The first is that the father took no concrete steps after mid-November 2024 and excluding CH’s misconceived application to NCAT in April 2025, to seek more information about what had happened to the appeal he had filed in the District Court and to seek to progress it. It can be accepted he made some limited verbal enquiries at the District Court Registry, but he was easily deterred by the responses he received, even though he was sure he had filed an appeal, as he had. The second is that the father was aware by 17 February 2025 that planning for C4’s transition to new carers had commenced and he still did not immediately bring this application. Thirdly, the plaintiff, CH, as an interested person, although not as a party to the Children’s Court proceedings, had sufficient standing to file a Notice of Appeal herself from the Children’s Court to the District Court in late 2024 but she did not do so.

Because of their unfamiliarity with legal processes, CH and the father should not be judged too strictly for failing to take the correct legal steps in a timely way. But they should have clearly understood the need for urgency and progressing the appeal and that something should be done to reconcile the father’s recollection that an appeal has been filed with the apparent denial by the District Court Registry that an appeal was on foot.

The Court enquired of both the plaintiff and the father to try and understand why they had not acted more rapidly in the circumstances and they said the following. CH said she was told by the District Court Registry at the time, “because I didn't lodge the application, that I didn't have a right to inquire about it.” The father said,

When the Court pointed out that despite these explanations, CH could have lodged her own appeal but had done nothing else for three months in late 2024 and early 2025, she said:

The ultimate position is still puzzling. CH was able to eventually find this Court’s parens patriae jurisdiction, showing that she has have some legal insight. She eventually added that:

The answer to this statement of CH really is that had CH or the father followed up the anomalies concerning the filing of the appeal much sooner, and had the filing error been discovered, it may have been possible to expedite at least part of the appeal to deal with C4’s imminent transfer to a new non-kin carer.

It is trite law that the parens patriae jurisdiction is broad. The High Court has described the jurisdiction in the following terms: “[t]he jurisdiction springs from the direct responsibility of the Crown for those who cannot look after themselves; it includes infants as well as those of unsound mind”: Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218.

In Re Elizabeth [2007] NSWSC 729, Palmer J elaborated upon relevant aspects of the jurisdiction as follows (at [16]-[18]):

The Court is generally disinclined to exercise its parens patriae jurisdiction where a case is properly before the jurisdiction of a specialised body such as the Children’s Court exercising jurisdiction under the Care Act, or the District Court sitting on appeal from the Children's Court Care Act jurisdiction. A detailed exposition of the reasoning behind these warnings, which has been often cited, is Palmer J’s decision in Re Victoria [2002] NSWSC 647:

Re Victoria was applied by Justice White in Re Barbara [2006] NSWSC 536 and by McCallum J in Re Georgia and Luke [2008] NSWSC 1277 and in Re Linda [2011] NSWSC 1596, and more recently, by Meek J in Re Leonardo [2022] NSWSC 1265.

The authorities support the proposition that exceptional circumstances must exist before the Court will grant relief in its parens patriae jurisdiction.

In these reasons it is sufficient to include reference to the parties’ submissions in the analysis below without otherwise setting them out in detail. CH and the father pressed for the principal relief on the Summons to be granted with respect to C4 to prevent her placement proceeding on Sunday. Mr Ryan, on behalf of the mother generally supported the plaintiff’s and the father’s submissions. Mr Dean on behalf of DCJ submits that the evidence does not disclose the existence of exceptional circumstances sufficient to warrant the intervention of this Court in the present matter, let alone the granting of relief in the exercise of the parens patriae jurisdiction.

The Court asked the plaintiff to identify the exceptional circumstances on which she relied to invoke the Court’s parens patriae jurisdiction. She first pointed to the youngest child, C4, having two diagnosed psychological conditions, and secondly that there was no provision within the current care plan created under the Care Act for C4 to be placed with any carers other than to two family members, RR and DR. The plaintiff therefore submitted that the existing care plan should now be rewritten before any further steps are taken in relation to placement of C4, as in substance it does not really exist in any relevant way anymore.

The plaintiff’s observations in answer to the Court’s question are, at a factual level, true as far as they go. As these reasons have already set out, C4 does have two demanding psychological conditions that require close monitoring, and the care plan is now rapidly becoming, at least in one respect – placement with RR and DR – out of date.

The Court also asked why the matter had taken so long to come to court given that the Children’s Court made its final decision in July 2024. CH and the father say, and the Court accepts, that they found out about the proposal for C4 to go to a new placement, other than with RR and DR, in about mid-February 2025. CH says that as soon as she found out about this proposal, she sought to organise a family conference with the DCJ. But she says that organising such a conference was frustratingly slow on DCJ’s side.

Then, when that was unproductive, CH says that she sought to approach NCAT for administrative relief but was told that was not the correct jurisdiction. In April of this year, she gained awareness of this Court’s parens patriae jurisdiction, which led her to approaching this Court on 30 April 2025 to seek the exercise of that jurisdiction.

The substance of Mr Ryan’s submissions as to exceptional circumstances was much the same, although he added some legal submissions to those submissions. Given the range of matters that this Court has seen and the range of cases in which it has been asked to intervene in the parens patriae jurisdiction, and given the authorities of Re Victoria and Re Elizabeth which define the policy of the Court very clearly, despite the force and earnestness of CH’s submissions, the Court does not agree that there are exceptional circumstances here, warranting the Court’s intervention. In addition, there are discretionary reasons for declining to intervene.

It is important to understand what exceptional circumstances means in this context. For a layperson, it may well be quite confusing that exceptional circumstances in ordinary everyday language can mean simply something factually different from the norm.

But exceptional circumstances in this context does not just mean unusual facts or unusual situations such as, for example, a care plan becoming inapplicable due to a chain of circumstances or the effluxion of time. The notion of exceptional circumstances in this jurisdiction is to identify a need for the Court in its parens patriae jurisdiction to intervene in situations where the statutory Children’s Court process as a structure which is generally applicable has broken down or cannot apply or cannot fulfil the needs of the situation, such that the gap needs to be filled by this Court in the exercise of that jurisdiction.

That is not the case here. The present version of the care plan can be amended and that is likely to occur in the near term. C4’s special health challenges, including her probable attachment disorder, as identified by several parties in these proceedings, are, rather than indications of exceptional circumstances, are factors which requires the taking of extreme care in making any dramatic steps to alter her present circumstances.

Several other discretionary factors now weigh against the Court intervening, even if the Court could identify that there were exceptional circumstances here.

First, to grant the relief that CH requests would be to place C4’s health and wellbeing at risk. The best available contemporaneous evidence, limited though it has been in the time available, shows that C4 is well on the way to transition to her new placement, who is someone well known to her kin such as RR and is already spending most of her time there. To make an order now preventing that process being completed is inherently likely to be a major disruption for C4. Given C4’s already well-established health vulnerabilities, such disruption may have unpredictable disadvantages to her overall well-being. The Court is very reluctant to take such unknown risks which are inevitable with the relief sought, which would involve C4 being uprooted and moved from a current placement to CH in Queensland.

The Court has not found it necessary to consider the jurisdictional issues that have been raised because C4 is in Western Australia and CH is in Queensland. This matter has been decided on other discretionary grounds. But the fact these locations are outside the jurisdiction makes monitoring C4’s health vulnerabilities more difficult and adds to the overall risks to C4’s health and well-being.

Secondly, CH’s plans to take C4 in now, instead of placing her as planned, are not well-developed in the Court’s assessment. Despite CH’s professional background, apart from the physical arrangements CH has suggested for C4, the Court can anticipate significant communication issues arising between DCJ and CH. The Court has observed that the way this proceeding has been conducted between the parties shows a lack of trust in promoting reliable and open factual communications. The Court would need much greater confidence in the quality and openness of communication between CH and the father on the one side, and DCJ and other members of C4’s extended family on the other, before the Court would be inclined to exercise its discretion to take the sudden course which is being asked of it. This judgment is objective and the Court does not take a position on whether these communication deficiencies are the fault of one side or the other – merely that they exist.

Thirdly, for this Court now to exercise its parens patriae jurisdiction and to intervene in the manner requested would be essentially inconsistent with the statutory scheme of the Care Act and inconsistent with the authorities cited above. Intervention now would do the very thing which the authorities have warned against – sideline the appeal process, which is now available to the father and the plaintiff - and instead would result in an opening of an alternative process which is less well-suited to the full consideration of the issues facing these children. Although the father has been adversely affected by poor administration in the District Court Registry, for which the District Court has now expressed its regret and apologies, both the father and CH, as parties to the primary Children’s Court proceedings, have rights of appeal which they can still exercise and in a manner which is much more suited to judge C4’s overall welfare and that of the other children in the family than by means of a parens patriae application.

Once the Court contacted the District Court Registry to bring to light the administrative errors in this case, it responded rapidly to correct them. The District Court Registry has offered to expedite the hearing of that appeal in its correspondence with this Court in response to this Court’s enquiries. The Court will therefore recommend strongly that expedition be given to those appeal proceedings which the District Court has acknowledged are now on foot.

An expedited appeal hearing will allow a proper examination of the whole situation of all the children, including C4, in a proper context and at the same time. That expedition should be for the benefit of C4 and everyone in her life. The current hearing, because of its timing, has only allowed the Court to consider C4’s position, and not with the thoroughness that her best interests deserve.

The final discretionary factor which inclines the Court against intervening in the parens patriae jurisdiction now is that this appeal could have been pressed on behalf of the father much earlier. The Court fully accepts that because the father is not legally represented, he does not know how long an appeal to the District Court from a decision of the Children’s Court should take to come on for hearing. But it is difficult to accept that applying the standard of ordinary diligence to the father (and allowing for the need for some adjustment time on his part after leaving prison) why the father did not press between November 2024 and April 2025 for more information about the progress of the appeal, when the District Court did not communicate with him.

His inaction is to be contrasted with how quickly CH took up the case. The urgency with which CH brought on this Summons shows that when she is determined, CH can be appropriately active in seeking administrative remedies.

But that delay has had unfortunate and critical consequences. If the father had made further enquiries at the District Court Registry when C4’s transition process was in its early stages, he would have been a much better position to argue for a change in course. But now the process is almost complete with transition steps for C4 having taken place in recent weeks. And there are few choices available other than the one now being taken. RR and DR cannot look after C4 for much longer. There are no other carers with whom C4 is already familiar to care for her with a view to a long-term stable placement.

For these reasons the Court will dismiss the plaintiff’s Summons. It can be dismissed in respect of C4 because the Court cannot be confident in the exercise of its parens patriae jurisdiction that to interfere with her planned placement would be in her best interests. It can be dismissed with respect to the other children because this Court’s intervention has led to the District Court appeal being restored and that is the clearly preferable forum to deal with the issues concerning those other children after a considered hearing examining all the evidence.

For these reasons, the Court: