Re Barbara and Ors [2006] NSWSC 536 (25 May 2006)

Last Updated: 8 June 2006

NEW SOUTH WALES SUPREME COURT

CITATION: Re Barbara & Ors [2006] NSWSC 536



CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): 2368/06

HEARING DATE{S): 25/05/06

DECISION DATE: 25/05/2006
EX TEMPORE DATE: 25/05/2006

PARTIES:
Re Barbara & Ors

JUDGMENT OF: White J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
Plaintiff: M W Anderson
1st Defendant: I Bourke
2nd Defendant: S Gardiner
3rd Defendant: M Cleary
Two Children: P Braine
Mention for J McCaffrey - solicitor for one child

SOLICITORS:
Plaintiff: I V Knight - Crown Solicitor
Defendants: Legal Aid Commission


CATCHWORDS:
FAMILY LAW & CHILD WELFARE – Director-General sought interim orders in Children’s Court allocating parental responsibility for three children to Minister – Children’s Court made interim orders substantially in accordance with orders sought by Director-General – Application by children’s parents for stay of orders of Children’s Court – Whether Supreme Court should exercise its parens patriae jurisdiction to grant stay of orders of Children’s Court – Parens patriae jurisdiction used in exceptional circumstances – Whether circumstances exceptional – Application dismissed.

ACTS CITED:
Children and Young Persons (Care and Protection) Act 1998 (NSW)

DECISION:
1. I dismiss the notice of motion for a stay of the orders made today in the Children's Court; 2. I order that the amended summons be dismissed; 3. I give liberty to the parties to apply to me on seven days’ notice on the question of costs.


JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST


WHITE J

Thursday, 25 May 2006


2368/06 Re Barbara & Ors

JUDGMENT

1 HIS HONOUR: These proceedings were before the Court on 13 April and 23 April 2006. They concern interim orders made today in the Children's Court for the allocation of parental responsibility for three children aged 8, 15 months and about 8 weeks.

2 Proceedings had earlier been brought by the Director-General of the Department of Community Services in 2005 in which orders were sought that parental responsibility for the two elder children should be allocated to the Minister for Community Services.

3 On 10 November 2005, orders were made in the Children's Court allocating parental responsibility for the children to the Minister for a period of 12 months, but providing for parental responsibility for the children's residence to be shared between the Minister and the children's paternal grandmother, and providing that all other aspects of parental responsibility were to be exercised jointly by the children's parents, the Minister, and their paternal grandmother.

4 Pursuant to s 73 of the Children and Young Persons (Care and Protection) Act 1998 (NSW), the Court accepted undertakings from the parents that, amongst other things, they would “engage with (sic) and complete a residential drug and alcohol rehabilitation program and would provide a chain of custody urine samples for drug analysis twice per week on the completion of the rehabilitation programme for as long as required”.

5 The youngest child was born on 1 April 2006. On 12 April 2006, the Director-General made two applications to the Children's Court. One was for a care order with respect to the newborn child. The Director-General sought an order for parental responsibility to be made in favour of the Minister solely on all aspects.

6 The other application made by the Director-General was for the grant of leave pursuant to s 90 of the Act to apply to rescind or vary the orders made on 10 November 2005 with respect to the two elder children. The ground upon which such leave could be sought was that there had been significant changes in the relevant circumstances.

7 The Director-General sought an interim order that parental responsibility for those children be allocated to the Minister. It appears that on 13 April 2006, the Children's Court declined to make the interim orders sought by the Director-General, but I was told that the Court accepted undertakings from the children's parents that they would accept supervision by the Department of Community Services and would provide a chain of custody urine analysis twice per week, and that the paternal grandmother would attend the parents’ premises every day. I was also told that on that day the Children's Court granted the leave sought by the Director-General under s 90.

8 On the evening of 13 April 2006, the Director-General applied to Barrett J for an order in this Court's parens patriae jurisdiction that all aspects of parental responsibility be allocated to the Minister. His Honour refused that order. His Honour said, amongst other things (Re Barbara & Ors [2006] NSWSC 303 at [13]-[14]):

“It is always a major and distressing step to take children away from their parents. That is particularly so in the case of a new born baby. If any way can reasonably be found consistently with the best interests of the children to avoid that then that is the course the court should take.

So far as the interim position is concerned, that is to say the position until the summons comes back before the Court on 28 April, by which time it will also be back again in the Children’s Court, the solution in my mind lies with the grandmother.”

9 His Honour accepted an undertaking from the paternal grandmother in the following terms:

“That she will live in full time with the parents and the three children at their home at [address] up to and including 28 April 2006 and will
(a) adopt the role of full time carer looking after the children to the best of her ability;
(b) support and encourage the parents in their parenting responsibilities; and
(c) contact DOCS immediately she has any apprehension that the parents are not properly caring for the children.”

10 It appears that the Director-General's proceedings for interim care orders were listed for hearing in the Children's Court on 27 April 2006. It is not clear to me to what extent any such hearing proceeded on that day. On 28 April 2006, Gzell J accepted revised undertakings from the paternal grandmother and stood the proceedings over to today. His Honour noted that the Children's Court hearing had been stood over to 23 and 24 May 2006. (Re Barbara & ors [2006] NSWSC 303).

11 It appears that on 23 May 2006, a finding was made in the Children's Court, without opposition by any party and without admissions, that the youngest child was in need of care and protection, thus satisfying the "establishment phase" requisite to that Court's jurisdiction to make a care order under the Act (s 71). No doubt that was because of the history of drug-taking by the children's parents.

12 The Magistrate reserved her decision overnight and gave judgment orally this afternoon. There is no transcript of her reasons, nor of her orders, but I was provided with notes of the judgment by the legal representatives for the parties.

13 In seeking an interim care order, the Director-General had the onus of satisfying her Honour that it is not in the best interests of the safety, welfare and well-being of the children that they should remain with their parents or other persons having parental responsibility (subs 69(2)). Her Honour was so satisfied.

14 In respect of the two elder children, her Honour made an interim order allocating parental responsibility with respect to their residence to the paternal grandmother and allocating all other aspects of parental responsibility for those children to the Minister (see ss 79 and 81).

15 Her Honour made an order that the parents have supervised contact with the children for a minimum of two hours three times a week which may be supervised by the paternal grandmother at the Minister's discretion. Her Honour also made an interim order allocating all responsibility for the baby to the Minister and providing for supervised access to the child by the parents and the baby's siblings. I was told that following the delivery of her Honour's reasons this afternoon, the baby has been placed in foster care this evening.

16 This evening the children's parents have applied for a stay of these orders until next week to enable her Honour's reasons to be properly considered and without there being a further disruption to the status quo. That application is supported by the children's paternal grandmother and by counsel for the two elder children. It is opposed by the Director-General. I was told that it was also opposed by the solicitor who acted for the youngest child in the Children's Court.

17 The jurisdiction invoked by the application for a stay is the Crown's parens patriae jurisdiction. In Re Victoria v Director General of the Department of Community Services and the Children’s Court [2002] NSWSC 647, Palmer J said (at [39]):

“...this Court should not encourage any process by which those dissatisfied with the result of proceedings in the Children's Court can simply set at naught the proceedings in that Court and come afresh to this Court, invoking its parens patriae jurisdiction in order to argue all over again the matters that have been debated before the lower Court. If that were to be in any way encouraged, then parties would inevitably face the risk of being involved in a multiplicity of uncontrolled proceedings fought in the Children's Court and in the Supreme Court, with the distinct possibility of conflicting concurrent orders obtained in the Supreme Court and in the lower Court.”

18 In Re Frances & Benny [2005] NSWSC 1207, Young CJ in Eq said (at [18]) that he agreed with the observation of Palmer J in Re Victoria that the parens patriae jurisdiction is only to be exercised in exceptional cases. His Honour observed that one of the exceptional cases in which the Court acts is where it is urgently required to provide some protective order and there are no other curial processes available to provide instant relief.

19 In Director-General of the Department of Community Services v Priestley [2004] NSWSC 639, Young CJ in Eq said (at [5]):

“The parens patriae wardship jurisdiction of the Supreme Court is a very important one in the administration of justice in New South Wales. However, as Palmer J said in Re Victoria it is only in the most extraordinary circumstances that this Court should be asked, in the exercise of its parens patriae jurisdiction, to set aside or affect the decision of a magistrate in a Children's Court merely because a party is dissatisfied with that decision. It is also inappropriate in almost all cases for this court to be asked to deal with the matter in the parens patriae jurisdiction when the only errors alleged against the learned magistrate, who is a specialised magistrate in a specialist jurisdiction, is that he or she in the exercise of a discretion failed to give due weight to a number of factual circumstances or disproportional weight to others or where there is an error of fact that does not go to the fundamentals of the case.”

20 Here, counsel for the mother, the father and paternal grandmother submitted very ably that the Magistrate took a wrong course in her reasons. They submitted that removing the children, particularly the youngest child, from the parents was a course which was bound to cause harm. That could only be justified on an interim basis, it was said, if there was a risk of imminent harm to the children through the continuance of the arrangements which had been in place since 13 April 2006. However, they submitted there was no evidence, and the Magistrate made no finding, that there had been any relapses by the parents in their drug taking since 13 April 2006. To change the status quo on an interim basis pending the final hearing of the Director-General's applications could not be the least intrusive option in the children's lives consistent with the paramount concern for the protection of the children from harm and the promotion of their development (s 9(d)).

21 It appears from the notes of the learned Magistrate's reasons for judgment that, amongst other things, she recorded the evidence of the case worker that there was no evidence of drug use by the parents since 13 April 2006. However, she also recorded evidence that, notwithstanding the undertakings given on 10 November 2005, the mother had conceded that she had taken amphetamines in January 2006. She is also recorded as having said that the mother was unable to provide any plausible explanation for the pharmacological evidence that she had taken drugs in March 2006. I was told without contradiction that that evidence was that the drug taken was heroin.

22 The learned Magistrate recounted evidence that the mother accepted that stress increased the likelihood of a relapse, but she also recorded that the mother was prepared to go back into long-term rehabilitation. She found that the mother's frankness was impressive. The learned Magistrate also found that the paternal grandmother's efforts in looking after the children were very impressive. She is now 72.

23 Her Honour recorded the grandmother's evidence that since 13 April 2006 there had been no issues with respect to, I assume, the eldest child, in relation to cleanliness or hygiene, and no reports from school. I infer she accepted that evidence.

24 The learned Magistrate said that the current arrangements were not to the satisfaction of anybody. She referred to there being deficits in financial management and in the dynamics between the parents and the Department of Community Services. Counsel for the Director-General did not suggest, and he appeared to accept, that these would not be sufficient grounds on which to make the interim orders that were made.

25 However, the learned Magistrate went on to say that the current arrangements could not continue on an interim basis. She noted that the parties, I assume the relevant parties, had asked for the children to remain. She apparently referred to the “least intrusive option”, which appears to be a reference to the requirements of s 9(d) of the Act. She looked at the risk to the children, and concluded that it was not in the elder children's best interests for them to remain with their parents.

26 Having noted the amount of time they had spent with the paternal grandmother and the stability and love which was afforded to them by her, the learned Magistrate made the interim orders for the allocation of parental responsibility with respect to the elder children to which I have referred.

27 The learned Magistrate did not expressly deal with the question of whether it was in the best interests of the baby that, if she were not to remain with her parents, she should reside with her paternal grandmother. I am told it was submitted before the Children's Court that this would be the preferable course if it were concluded that the children should be removed from their parents.

28 However, as I have said, the grandmother is 72. She already has the care of the two children aged 8 years and 15 months. The younger of those children is almost a baby himself. I think the learned Magistrate must have considered that having regard to her other burdens, the grandmother could not be expected also to provide the care needed for all three children. It is probable that the magistrate also took into account the established connections which exist between the two elder children and the grandmother.

29 One of the notes of the judgment records that in relation to the youngest child the learned magistrate said that she was "weighing up risks" when determining that an interim order for the allocation of parental responsibility should be made to the Minister.

30 If I did not interfere with the Magistrate's conclusion that it was not in the interests of the youngest child to remain with her parents, there is no material which would satisfy me in the exercise of the power under the parens patriae jurisdiction that that child could be sufficiently well cared for by her paternal grandmother without adversely affecting the care of her siblings.

31 I do not conclude the learned Magistrate failed to weigh the harm to the children if they are moved on an interim basis from their parents, or that she failed to consider what was the least intrusive arrangement consistent with their protection from harm.

32 The Magistrate was not bound to conclude that, because there had been no relapses in relation to drugs since 13 April 2006, and that no events after that date had occurred which pointed to the children being at risk of imminent harm, that the risk of harm, which risk undoubtedly exists to some degree, was insufficient to warrant the status quo being disturbed.

33 Moreover, the current status quo was itself put in place only until the Children's Court was able to hear the applications. It was not a regime established after a full hearing by this Court of all available evidence.

34 In my view this is not an exceptional case in which this Court would be justified in setting aside or staying the Magistrate's decision. The Court must not pay merely lip service to the need for restraint in interfering with a decision of a specialised magistrate in a specialist jurisdiction arrived at after hearing some days of evidence.

35 The fact that the stay which is sought is only for a few days does not affect this conclusion. First, there has already been some disruption. It could not be regarded as satisfactory if the baby were brought back from interim foster care and then possibly returned to it in a few days time. In any event, I do not consider that there is any realistic possibly of the position appearing differently in a few days time.

36 It is highly undesirable in my view that there remain on foot two parallel proceedings. It remains open to the parties to make applications to the Children's Court, and liberty has been given to apply on three days’ notice.

37 For these reasons I dismiss the notice of motion for a stay of the orders made today in the Children's Court.

38 There remains a question of the effect of the orders made concerning the allocation of parental responsibility for the residence of the two elder children with the paternal grandmother. The grandmother has been living in the parents’ home in accordance with the undertakings given on 13 April 2006. On one view, she has the right to decide where the two elder children should reside. On the other hand, it appears from the other orders made that the learned Magistrate assumed that the children would not be residing with their parents. I think this matter should be clarified by the parties exercising their liberty to apply to the Children's Court.

39 I am not minded to make any order myself about that matter in the interim, as I do not think that for the next few days there is any significant risk of harm to those children. Having regard to the glowing testimonial given to the paternal grandmother there is every reason to expect that she will exercise her parental responsibility in this respect carefully, whatever be the correct interpretation of the orders made.

40 The Director-General does not wish to pursue the remaining claim in the amended summons. I order that the amended summons be dismissed. I give liberty to the parties to apply to me on seven days’ notice on the question of costs.


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LAST UPDATED: 08/06/2006