Re Madison (No 2)

By notice of motion filed on 20 January 2015, the plaintiff seeks to vary orders made by White J on 24 December 2014 in exercise of the Court's parens patriae jurisdiction, see Re Madison [2014] NSWSC 1874. The orders sought to be varied concern parental responsibility for the plaintiff's daughter who, for the purpose of these proceedings, has been given the pseudonym Madison.

Madison is 16 years old.

On 2 July 2014, the Director General of the Department of Family and Community Services assumed care of Madison. An application for a care order under the Children and Young Persons (Care and Protection) Act 1998 (NSW) was filed in the Children's Court on 7 July 2014.

On 10 July 2014, Madison was placed under the parental responsibility of the Minister until 18 July 2014. On 18 July 2014, she was placed under the parental responsibility of the Minister until further order.

The circumstances leading up to those orders and the orders made by White J on 24 December 2014 are set out in some detail in White J's judgment. It is not necessary to repeat them here. It is sufficient to observe that Madison is a particularly difficult adolescent. It is apparent on her own admission that she is addicted to marijuana and ice. Those addictions developed while Madison was living with her mother who herself is a drug addict.

Madison absconded from the Entity refuge in which she was placed by the Department pending final care orders being made by the Children's Court and recommenced taking drugs. It is in that context that the father commenced these proceedings and White J made orders initially on 24 October 2014 directing that the police recover Madison and deliver her to her father. It was apparent at that time that the Department was not able to provide accommodation for Madison in a secure residential rehabilitation facility. For that reason, White J ordered that the father be authorised to detain Madison at his residential premises using no more force than is reasonably necessary to do so.

Those orders were extended on 7 November 2014. White J had intended that those orders would continue to operate until the Children's Court made final orders for the parental responsibility of Madison. However, on 18 December 2014, the Minister sought to have the earlier orders made by White J discharged so that Madison would come under the sole parental responsibility of the Minister. Those orders were sought following a number of altercations between Madison and her father.

On the other hand, the father sought an order that he be given sole care and parental responsibility for Madison and that the Department provide him with specific financial assistance to provide for Madison's welfare. The orders for specific financial assistance were sought in a context where the father is living in public housing, is in receipt of a Centrelink disability pension and received no family or other financial assistance in caring for Madison.

On 24 December 2014, White J rejected the application of the Minister and relevantly made the following orders.

Order 6 is to be understood in the context where the evidence before White J was to the following effect (see Re Madison [2014] NSWSC 1874 at [87]):

White J rejected the father's application for specific financial assistance. In doing so, he referred in his judgment (at [90]) to reasons he had given for rejecting a similar application on 7 November 2014. On that occasion White J said:

White J also referred to the decision in Re Josie [2004] NSWSC 642, where Levine J said (at [30]):

The notice of motion filed by the father relevantly seeks the following orders:

These orders include orders that were rejected by White J on 24 December 2014.

In support of the motion, the father has filed an affidavit. In that affidavit the father says that Madison has relapsed at least twice in relation to intravenous drug use and that he has received no support or financial assistance from the Department despite the orders of White J. He also points out that the costs of keeping Madison in the refuge would be $500 a day.

Miss Bucci, an employee of the Department, has filed an extensive affidavit setting out what the Department has done and is willing to do following the orders made by White J. The father takes issue with a number of statements made in that affidavit.

It is not possible to resolve all the competing contentions of the parties on this application. However, I am not satisfied that the Department has failed to comply with the orders of White J. There was a case plan meeting on 9 January 2015 at which various aspects of Madison's welfare were discussed, including her schooling. The Department has indicated that it is willing to pay for extra curricular activities engaged in by Madison provided Madison commits to them.

There can be no doubt that the father is doing the best that he can for Madison in very difficult circumstances and there is at least some evidence to suggest that in the past he has not received the support he might reasonably have expected from the Department. However, I am not prepared to make the orders the father seeks.

White J concluded that it was in Madison's best interests that the Minister have parental responsibility for Madison's education and medical treatment. He did so because the Minister was in a better position than the father to discharge those responsibilities. Nothing has changed in that regard. In particular, the father's financial position makes it difficult for him to discharge those responsibilities. Of course, the father seeks to address those difficulties by seeking orders that his discharge of those responsibilities be funded by the Minister. But, however unfortunate it is, the father's position seems to me to rest on a misunderstanding.

A parent who has sole parental responsibility for a child has the financial responsibility for providing for that child's needs. The parent may be entitled to various forms of government assistance in meeting the child's needs, but what form of government assistance is available is a question of policy. It is not a question for the Court in the exercise of its parens patriae jurisdiction, although the Court may in appropriate cases make recommendations in relation to the exercise of administrative discretions and take steps to have those recommendations brought to the attention of an appropriate person, as White J did in this case. In some cases, the Court may intervene where the exercise of the discretion has miscarried. However, I am not satisfied that the discretion has miscarried in this case.

Where parental responsibility is vested in the Minister, as Levine J pointed out in Re Josie, it is largely a question for the Minister how that parental responsibility is to be discharged having regard to the limited funds available and the competing demands on those funds. It is possible to imagine cases where the Court could intervene where the Minister has failed to discharge his or her parental responsibilities by providing for the basic needs of the child such as adequate food, clothing, accommodation and health care. But, in my opinion, there is no evidence that the Minister has failed to discharge those responsibilities in this case. What the father seeks seems to me to go beyond those basic needs. Moreover, I accept that there are limits on what the Department can do without Madison's co-operation.

The father also seeks an order that the matter in its entirety be transferred to this Court and be set down for hearing at the first available opportunity for three days. For the reasons given by White J, I am not prepared to make such an order. As White J pointed out, Parliament has made it clear that, except in exceptional circumstances, this Court

should not intervene in proceedings that are ongoing in a specialist Tribunal which has been established to hear them. White J explained that the exceptional circumstances that caused him to intervene in this case did not justify the removal of the whole proceedings into this Court. Nothing has happened since to alter the position.

The father submits that it is more appropriate for the case to be heard in this Court because only this Court can make orders for the provision of financial assistance. But even accepting that that would be a reason for transfer, for the reasons I have given, the Court would not make the orders sought by the father in this case in any event. Consequently the reason advanced by the father does not provide a ground for transfer.

In those circumstances, the father's notice of motion must be dismissed.