M v Department of Family and Community Services [2013] NSWSC 118 (23 February 2013)

Last Updated: 26 April 2013

Supreme Court New South Wales

Case Title:	M v Department of Family and Community Services
Medium Neutral Citation:	[2013] NSWSC 118
Hearing Date(s):	23 February 2013
Decision Date:	23 February 2013
Jurisdiction:	Equity Division
Before:	Slattery J
Decision:	Application dismissed
Catchwords:	FAMILY LAW AND CHILD WELFARE - current proceedings under the Act on appeal to the District Court - application for urgent interlocutory relief in parens patriae jurisdiction - whether relief should be granted in circumstances
Legislation Cited:	Children and Young Person's (Care and Protection) Act 1998
Cases Cited:	re Victoria [2002] NSWSC 647
Category:	Interlocutory applications
Parties:	Applicant: Great Australian Operations Pty Ltd (Receivers and Managers Appointed) Respondent: Washington H. Soul Pattinson and Company Limited
Representation
- Counsel:	Counsel: na
- Solicitors:	Solicitors: na
File Number(s):	2012/196633
Publication Restriction:	None

JUDGMENT

1. The plaintiff made an application in these proceedings to the Equity Division duty judge on the afternoon of Saturday 23 February 2013. The application was first brought to the attention of Judge's staff at about 4.30pm on that day. This application followed a judgment that White J gave in the proceedings on 5 December 2012. His Honour had previously made an order for the anonymisation of the proceedings, which are generally known as M v Department of Family and Community Services. I adopt in these reasons the same pseudonyms as White J used in his 5 December 2012 judgment.

2. The plaintiff in the proceedings, BM, is the applicant on the motion. She is the biological mother of two children RM and HM. She asks that the Court intervene today and remove the two children from their biological father, MB, who has the two children with him for overnight access this evening 23 February 2013. The Court declined MB's application for the reasons which follow. The Court communicated these reasons to MB in summary form on the evening of 23 February 2013. The Court indicated that the reasons would be published in anonymised form on Monday 25 February 2013. This judgment is those published reasons.

3. BM's short application was one part of a complex family history. The Director-General of the Department of Community Services "the Director General" removed RM and HM from BM's custody or assumed them into care on 30 November 2012. The Director-General filed a formal care application in December 2011 in respect of RM and HM, and in respect of BM's three other children under the Children and Young Person's (Care and Protection) Act 1998 ("the Care Act") s 71(c),(d) and (e). During 2012 BM brought a number of applications under the Care Act s 90, seeking interim restoration of the children or interim orders in relation to them. The mother, BM lives in Wagga Wagga, New South Wales. The father, MB, lives in Adelaide, South Australia. The mother's various applications were heard in the Children's Court at Wagga Wagga on 5, 6 and 7 November 2012 before Children's Magistrate Sbrizzi.

4. His Honour Sbrizzi CM gave judgment in the proceedings on 9 November 2012. His Honour's judgments dealt with all five children. Relevantly, in relation to RM and HM, his Honour found under Care Act s 83 that as at that time, November 2012, there was no realistic possibility of restoration of the children to the care of their mother, BM. In contrast, his Honour found for eight well-identified reasons that there was as at 20 November 2012, a realistic possibility of restoration of RM and HM to the care of their biological father, MB. The significance of these findings is that whilst the two children are currently with foster carers at Cootamundra, the Director General is now authorized to commence preparation of a permancy plan for their later care, which plan will be compatible with their restoration to their father, but not to their mother. The learned magistrate's reasons for his findings in relation to MB followed upon serious allegations made about MB and his care of the children; allegations which the learned magistrate rejected after assessing the credit of both BM and MB and after examining the objective evidentiary materials. The learned magistrate's overall assessment of MB on 9 November 2012 of the evidence (at transcript p17, lines 22-25) "so on the totality of the evidence I do regard MB to be a caring, committed parent and as such I am fairly confident that he is likely to be protective of HM and RM once they are restored to his care".

5. Before his Honour Magistrate Sbrizzi's reasons were published, BM made a recent application to this Court in the Equity Division, which, as is mentioned above, White J heard on 5 December 2012. As White J's judgment makes clear, (paragraph [6]) he did not have before him the findings pronounced by his Honour Magistrate Sbrizzi on 9 November 2012. BM's application to White J was made in the Court's parens patriae jurisdiction, as was the current application. The parens patriae jurisdiction of this Court is preserved notwithstanding the conferral of jurisdiction on the Children's Court under the Care Act. But there are many judicial warnings against the use of the parens patriae jurisdiction as a substitute for the ordinary and proper process of appeal from the Children's Courts to the District Court in accordance with Care Act s 91: Re Victoria [2002] NSWSC 647 at [30], per Palmer J. The effect of authorities such Re Victoria is that it is only in extraordinary circumstances that this Court would exercise its parens patriae jurisdiction to set aside or make an order to affect a Magistrate's order in the Children's Court.

6. On 5 December 2012 White J stayed the making of any final order by the Children's Court the effect of which final order might be to give custody of RM and HM to MB. His Honour otherwise stayed those proceedings. But White J did not have before him a record of what had occurred before his Honour Children's Magistrate Sbrizzi. It was not made clear to White J that no custody orders in favour of MB were being made on or shortly following 9 November 2012. The full transcript of what happened on 9 November 2012 now clarifies that the learned Magistrate adjourned the matter and directed the Director General to file an amended care plan for RM and HM to MB, and provide for contact between the mother, BM, and the children. Although the procedural record before the Children's Court is not clear it seems that final orders were made about 5 December, which then led to the application before White J. In the meantime RM and HM were to remain and have remained with their foster carers in Cootamundra. A care plan has now been prepared which contemplates the restoration of RM and HM to the care of MB.

7. BM did exercise her rights of appeal under Care Act s 91. Indeed the appeal proceedings (under Care Act s 91) to be heard before the District Court sitting at Wagga Wagga commence on Monday, 25 February 2013. The Director General and MB are also parties to the appeal in the District Court. From the limited information available on this application, I infer the Director General has taken advantage of the need for MB to come from Adelaide to Wagga Wagga for this District Court hearing on Monday to utilise the preceding weekend for a period of overnight access with HM and RM. It is the possibility of this access which has alarmed BM, and leads to her application to this Court.

8. I should say that the giving of overnight unsupervised access to MB does not appear to be inconsistent with White J's orders, which prevent the children going into MB's fulltime custody. A short period of unsupervised, even overnight access does not seem inconsistent with such an order, where it is one step in a care plan leading to MB only later assuming full-time care of the children.

9. BM applied to the Court late on the afternoon of 23 February 2013. Her application by motion was for "(1) urgent injunction to stop MB from having unsupervised contact with RH and HM" and "(2) orders to the effect that all contact between BM and RM and HM be supervised" until the outcome of the District Court appeal. As indicated the application came to the attention of judicial staff at approximately 4.30pm. Justice White's associate spoke with BM who was at all times in Wagga Wagga and communicating by telephone. These communications continued between about 5.00pm and 6.00pm. Then, at 6.00pm I spoke with BM to ascertain the nature of her application. At that stage I did not have any documents from her. She communicated the nature of the application and her fears that unsupervised access was commencing at about that time and she sought the Court's intervention to stop it. The Court requested her to attempt to contact MB by telephone before proceeding with her application, particularly as the matter was listed for hearing on Monday and MB was a party entitled to be heard before such an order was made.

10. In anticipation of the possibility of a three-way hearing involving BM, the Court and MB, it was arranged for the next telephone communication with BM to take place from the Law Courts Building. She sent to Court by email a number of documents including, her motion, her affidavit of 23 February 2013 and the transcript of the hearing before the learned Magistrate on 9 November 2012, the judgment of White J of 5 December 2012 and the current care plan. The Court read these documents and then heard her application by telephone. BM indicated that she contacted MB and told him of the nature of her application but that he had indicated it would be difficult for anyone to contact him. So she proceeded with her application.

11. BM's argument on her application may be shortly stated. This account is based upon a combination of her affidavit evidence and statements she made in the course of the application. BM says that during her own supervised contact with the children, RM and HM, on the late morning of 23 February 2013 the two children had expressed fears to her about having unsupervised contact with MB that evening and were seeking reassurance from BM. BM says, and I am prepared to assume this as correct for the purposes of BM's application, that this was the first time she became aware that the Director-General was permitting any unsupervised access of RM and HM with MB.

12. BM continued. She says that her son, RM, "wanted reassurance from me, and instead contact was ceased. This traumatised [RM and HM] as contact ended at 2.20pm - my children were expecting the normal two hours with me". BM further described the apparent distress of the children at the morning's access with her. BM's case then moved to why MB was unfit to have unsupervised access with the two children. The allegations constituted claims on BM's part of inappropriate sexual dealings with the children on prior occasions. Her main fear, based on these alleged events, was for her children's safety with MB. From the way those fears were expressed I have no doubt that they are genuinely held fears on BM's part. But whether or not they are fears based upon reasonable grounds is quite another question.

13. On this material then, and in order to give effect to her fear that her children might be sexually abused, BM asked for the Court to make the orders identified above. But for the reasons that follow, which were pointed out to BM in the course of argument, the Court declines to make the orders sought.

14. First, a comparison of the allegations and fear expressed in BM's affidavit of 23 February 2013 with the nature of the allegations made and dealt with by the learned Magistrate in his reasons of 9 November 2012, makes clear that the learned Magistrate had considered all the material now alleged against MB. After assessing BM's and MB's respective credit and all the objective circumstances, the learned Magistrate decided on 9 November 2012 to order as he did, and to make the findings that he did about MB. It is consistent with those orders that some degree of unsupervised contact might take place as part of the preparation or early implementation of an amended care plan. The material adduced before me on this application appears to be little different from that which was before the learned Magistrate and which has been determined adversely to BM. Thus, the evidence of immediate danger to the children is not compelling.

15. Moreover, the effect of enforcing Court orders for the removal of HM and RM from the immediate care of MB in the early evening of 23 February 2013 would be very likely to traumatise two children aged 4 and 5 years: they would be taken from their beds at about 9.00pm; they could not be driven to their mother, BM, consistently with existing court orders; they would be driven by police who they would not know for approximately one and a half hours to Cootamundra, back to their foster carers; and, if their foster carers could not readily be contacted, they would need to be held by the police overnight. There would be a very high risk of psychological harm to the children from the making of such orders. This is a powerful reason for not making them.

16. Finally, BM will have an opportunity on Monday, 25 February 2013 to raise all her concerns about MB with the District Court in Wagga Wagga on the Care Act s 91 appeal hearing. She will have an immediate opportunity then to ventilate any concerns which she had additional to those raised at the hearing on 5, 6 and 7 November 2012.

17. For all these reasons the Court declined to intervene and grant the Plaintiff the relief she sought. Orders providing for the filing of the process were made. The final orders of the Court were:

1. Leave granted to file in copy form the motion and affidavit on 23 February 2013

2. The original motion and affidavit shall be filed by 4.00pm on Wednesday, 27 February and served on all parties by Friday 1 March 2013.

3. The motion will be returnable before the Registrar at 9.00am on Friday, 8 March 2013.