Mother Opposes Children's Court Interim Care Order
GR v The Department of Communities & Justice [2021] NSWSC 1081 (27 August 2021)
AB who is almost 17 has been diagnosed with autism, selective mutism, and Avoidant Restrictive Food Intake Disorder. Due to such Care Orders were made so that parental responsibility for AB are allocated to the Minister for Families, Communities and Disability Services, until he attains 18 years of age. The plaintiff disputes such an order and seeks that AB be returned to her care. The Court in adjudicating this dispute relied upon the best interests of the child, unacceptable risk, and AB's testimonies.
Facts:
The plaintiff, GR, is the AB's Mother and is a litigant-in-person. AB is represented by an Independent Legal Representative (“ILR”). The first defendant is the Secretary, Department of Communities and Justice, and the second defendant is the Minister for Families, Communities and Disability Services. AB's father or the third defendant sent an email to the Court and the other parties on 10 June 2021 informing them that he did not wish to seek restoration of AB to his care, but sought contact.
The father stated that he will not participate in the appeal. AB, who will turn 17 in October 2021, has been diagnosed with autism, selective mutism, and Avoidant Restrictive Food Intake Disorder (“ARFID”). The final orders of the President of the Children’s Court stated that all aspects of parental responsibility for AB are allocated to the Minister for Families, Communities and Disability Services, until he attains 18 years of age. Before such, parental responsibility for AB had been vested in the Minister for Families, Communities and Disability Services (the “Minister”).
GR seeks an order setting aside the final orders and, in its place, an order that the proceedings brought in the Children’s Court by the Secretary of the Department of Communities and Justice (the Secretary) be dismissed. GR also seeks a "recovery order” for AB to be returned to her care. GR made numerous additional applications to set aside the Children’s Court orders, purportedly invoking the parens patriae jurisdiction of the Court. His Honour refused GR’s application because serious questions remained as to her capacity to care for the boy, in particular her ability to ensure he ate adequately, maintained minimum standards of hygiene, and attended school and that she would cooperate with medical and other professionals involved in his care.
Issue:
Whether the child should be restored to the mother's care.
Applicable law:
Acts Interpretation Act 1987 (NSW) s 9 - provides that the word "may", if used to confer a power, indicates that the power may be exercised or not, at discretion. The word "shall", if used to impose a duty, indicates that the duty must be performed.
Adoption Act 2000 (NSW) s 126 - provides that except as otherwise provided by this Act or the regulations, the Court, in the hearing of any proceedings or in determining any application or matter under this Act or the regulations, may act on any statement, document, information, or matter that may, in its opinion, assist it to deal with the matter of the proceedings or before it for determination whether or not the statement, document, information or matter would be admissible in evidence.
Children’s Court Act 1987 (NSW) s 22A - if the final orders were made by the Presidential Children’s Court, an appeal is to the Supreme Court (Equity Division), rather than the District Court.
Children and Young Persons (Care and Protection) Act 1998 (NSW) ss 8, 9, 44, 60, 71, 72, 79, 82, 83, 86, 90, 91, 93, 99C, 233, 247 - provides that pursuant to the objective of this Act, the Secretary may assume care responsibility of child or young person in hospital or other premises, the grounds for care orders, the determination as to care and protection, and orders other than guardianship order allocating parental responsibility.
Family Law Act 1975 (Cth) s 69ZK - provides that the Court should not make an order under this Act in relation to a child who is under the care of a person under a child welfare law.
Supreme Court Act 1970 (NSW) s 23 - provides that the Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales.
United Nations Convention on the Rights of the Child 1989 - decisions in care proceedings are to be made consistently with the principles and provisions herein.
A v Secretary, Department of Communities and Justice (No. 4) [2019] NSWSC 1872 - where the arbitrary nature of the principle of unacceptable risk was discussed.
Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 - any significant organisation in our society must depend for its efficient carrying on upon proper records made by persons who have no interest other than to record as accurately as possible matters relating to the business with which they are concerned.
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 - where the distinction between an appeal by way of rehearing and a hearing de novo was considered.
Barghouthi v Transfield Pty Ltd [2002] FCA 666; 122 FCR 19 - where it was held that the Court’s duty to ensure a trial is fair should apply to all parties involved.
Briginshaw v Briginshaw (1938) 60 CLR 337; [1938] HCA 34 - provided that convincing evidence is required to meet this standard of proof where an allegation is made that is serious, has an inherent unlikelihood of an occurrence of a given description or there is significant gravity of the consequences flowing from a particular finding.
Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138 - the Full Court of the Federal Court identified some of the issues faced by courts when conducting cases involving litigants-in-person.
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 - where it was held that appeal is not, as such, a common law procedure. It is a creature of statute.
Galea v Galea (1990) 19 NSWLR 263 - where it was observed that a judge is entitled to reprimand a litigant-in-person if they are trifling with the court.
GR v Secretary, Department of Families, Disabilities and Community Services [2019] NSWCA 277 - where leave to appeal was refused and the application was dismissed, principally by reason of the imminence of the Children's Court hearing due to commence the following week.
GR v Secretary, Department of Family and Community Services and Justice [2019] NSWSC 1073 - Lindsay J sitting in the Protective List in the Equity Division of the Supreme Court, summarily dismissed GR’s Amended Summons.
GR v Secretary, Department of Family and Community Services and Justice [2019] NSWSC 1146 - where the Court determined, for various reasons, that there were no exceptional circumstances for the exercise of the parens patriae jurisdiction.
GR v Secretary, Department of Community and Justice (No 3) [2020] NSWSC 259 - it was observed that it was common ground that because it would be an appeal from his Honour sitting as President of the Children’s Court, the appeal would be by way of rehearing before a judge of the Equity Division of this Court.
GR v Secretary, Department of Family and Community Services and Justice & Ors [2020] NSWSC 607 - where GR has commenced and/or sought to commence a multitude of applications and proceedings (and appeals, or applications for leave to appeal, therefrom) in the Supreme Court involving or seeking the exercise of the parens patriae jurisdiction in connection with AB.
GR v The Department of Communities & Justice and Ors [2020] NSWSC 1622 - a result of applications made by GR seeking judicial review of the initial care order and dismissal of the ILR, is that the hearing could not proceed at that time. In the course of giving judgment on those other issues a guardian ad litem was appointed.
GR v The Department of Communities & Justice [2021] NSWSC 983 - where GR sought to prevent Associate Professor Madden from treating AB with Prozac and depot Olanzapine.
GR v The Department of Communities & Justice [2021] NSWSC 1013 - GR asked the Court to convene a further urgent hearing on the basis that AB was facing a medical emergency requiring the Court to entertain an application pursuant to the parens patriae jurisdiction.
GR v Secretary, Department of Communities and Justice [2021] NSWCA 51 - where the Court of Appeal refused GR leave to appeal the issues of judicial review and the ILR, but granted leave to oppose the appointment of the guardian ad litem.
GR v Secretary, Department of Communities and Justice; Secretary, Department of Communities and Justice v BW (a pseudonym) [2021] NSWCA 157 - where the decision to appoint the guardian ad litem was subsequently set aside.
Hackett (a pseudonym) v Secretary, Department of Communities and Justice (2020) 379 ALR 248; [2020] NSWCA 83 - commented on the degree of flexibility that must therefore be adopted in adoption hearings.
M v M (1988) 166 CLR 69 - provides that the paramount concern for the safety, welfare and wellbeing of the child means that the proper test to be applied is that of “unacceptable risk to the child."
NU v Secretary of Family and Community Services (NSW) (2017) 95 NSWLR 577; [2017] NSWCA 221 - Beazley P observed that the effect of s.91(4) and (8) is to engage, on the hearing of the appeal, the Children’s Court’s processes provided for in Ch 6” of the Care Act.
Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unreported) Samuels JA - where it was held that the Court must be careful not to confer an advantage upon an unrepresented litigant at the expense of their represented opponent.
R v Gidley (1984) 3 NSWLR 168 - it was held that the judge must put the unrepresented litigant in the position of being able to make an effective choice, however, their duty does not extend to advising on how the litigants’ rights should be exercised, giving judicial advice nor conducting the case on behalf of the unrepresented litigant.
R v Zorad (1991) 19 NSWLR 1 - provides that the Court’s duty to ensure a trial is fair, in the context of a litigant-in-person, requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to represent themselves.Analysis:
Parental rights to consent to medical treatment of their children is restricted to any decision regarding consent to, or refusal of, medical treatment or intervention, and must be in the child’s best interests. The Secretary submitted that there is no realistic possibility of restoration of AB to GR within a reasonable time because GR is not capable of providing an adequate standard of care for AB. AB requires ongoing intensive therapeutic interventions, such as for his poor self-care and lack of verbal communication, such as he has been receiving in his out-of-home-care placement since at least June 2020. Hospitalisation and medical attention given to AB have been in his best interests.
Although GR denies beating her son, the Secretary submitted that the disclosures made by AB concerning his mother beating him should be given significant weight, and that there is an unacceptable risk of harm posed by the mother as a result of the allegations of physical assault and medication of AB without his knowledge. GR is incapable of cooperating with DCJ or carers and has not accepted nor addressed the issues that gave rise to AB’s initial assumption to care
Conclusion:
There is nothing in the evidence that warrants a departure from the orders of the Children’s Court. It is in the best interests of AB that he remains in his current placement until he turns 18. He should be encouraged to maintain contact with his parents at the level deemed appropriate by his caseworkers.
