Supreme Court New South Wales

• Medium Neutral Citation: Re Baby S [2014] NSWSC 871
• Hearing dates: 26 June 2014
• Decision date: 26 June 2014
• Jurisdiction: Equity Division - Duty List
• Before: White J

Decision

Refer to paras [36] and [37] of judgment

• Catchwords: ADMINISTRATIVE LAW - whether seriously arguable that certiorari lies to quash interim care order of Children's Court - whether reasons part of record; FAMILY LAW AND CHILD WELFARE - Parens patriae jurisdiction - whether exceptional circumstances warranting intervention - Children's Court order granting interim parental responsibility to the Minister stayed - earlier order reflected need for baby and mother to bond - no rational ground to rescind that order
• Legislation Cited: Children and Young Persons (Care and Protection) Act 1998
• Cases Cited: Re Frieda and Geoffrey [2009] NSWSC 133; (2009) 40 Fam LR 608; Re Victoria [2002] NSWSC 647; (2002) 29 Fam LR 157; Re Frances and Benny [2005] NSWSC 1207; Re Anna [2001] NSWSC 79
• Category: Principal judgment
• Parties: KS (Plaintiff); Minister for Family and Community Services (1st Defendant); Secretary, Family and Community Services (2nd Defendant); Independent Legal Representative for the child (5th Defendant)
• Representation: Counsel: M Neville (Plaintiff); G Moore (1st and 2nd Defendants); E Lawson (5th Defendant); Solicitors: Legal Aid Commission for NSW (Plaintiff); Crown Solicitors (1st and 2nd Defendants); ALS (5th Defendant)
• File Number(s): 2014/190734

Judgment

1 HIS HONOUR: These proceedings concern an infant who will be known as baby S for the purposes of these proceedings. Baby S was born on 31 May 2014.

2 On 6 June 2014 baby S was removed from the hospital by a caseworker with the Department of Family and Community Services because of concerns that he was at immediate risk of serious harm.

3 On 11 June 2014 the Secretary of the Department of Family and Community Services filed an application with the Children's Court seeking an interim order allocating interim parental responsibility for Baby S to the Minister until further order of the Children's Court, and a final order allocating parental responsibility to the Minister until Baby S attained the age of 18. That application came before the learned Magistrate in the Children's Court in Nowra on 12 June 2014. His Honour made an "order/direction/notation" that "Court not satisfied that it is not in the best interests of the child he remain in his mother's care - but there should be a supervision order an interim order accepting undertakings re: urines and accept supports from Waminda and co-operate with the Department - accept ongoing treatment by Dr McLeod". The Court accepted an undertaking from baby S's mother that she accept support and co-operate with Waminda, that she undertake urine analysis as requested by the Department, that she co-operate with the Department and comply with reasonable directions and that she accept support and co-operate with Dr McLeod.

4 The child's mother is on a methadone program. The reference to Waminda is to a Women's Health and Welfare Aboriginal Corporation on the South Coast.

5 It appears from the notes of a solicitor attending at the hearing at the Children's Court on 12 June 2014 that the Court was persuaded that there is a critical period for the bonding of the child and his mother after birth, and that if that period were interrupted it could not be regained. Both at the commencement and towards the conclusion of the note of his Honour's reasons reference is made to his Honour referring to this critical period of bonding. His Honour was satisfied that it was not necessary for the Court to make an interim parental responsibility order for the child to be placed under the care of the Minister because of evidence provided to him as to the support that the mother would have from the Waminda Health Care Service.

6 The baby was restored to his mother's care on the afternoon of Thursday, 12 June 2014. In the six days prior to that he had been in the care of foster carers. Because of the methadone treatment which his mother undergoes, the baby is at risk of suffering withdrawal symptoms, at least if his mother stopped breastfeeding the child. Whilst in the care of foster carers the baby had been prescribed doses of morphine which had been administered to him. On the handing over of the child to his mother and to a registered nurse and midwife with the Waminda Health Care Service, a caseworker with the Department of Family and Community Services provided a handwritten note of the morphine medication. It read that the baby was to be given 0.5 millilitres every six hours. The mother was later that evening given the bottle of morphine which had on it the pharmacist's advice. It provided for the administration of 0.5 milligrams of morphine. Morphine was administered to the baby as directed in the note provided. Unfortunately the dosage advised was wrong. The required dosage was .05 millilitres. There is no dispute, as I understand it and as the Magistrate found it in a subsequent hearing, that the administration of the wrong dosage was without any fault on the part of the mother. The same must be true in the case of Waminda.

7 The following day the mother noticed that the baby was very sleepy. She and the Waminda midwives took the baby to a Dr De Souza who observed that the baby seemed to be heavily sedated. He was taken to hospital where he remained over the weekend until discharged on Monday, 16 June 2014. He was put on a new script.

8 On 16 June 2014 the Department of Family and Community Services received the medical report from Dr De Souza advising that the baby had been given 10 times his prescribed dose of morphine as a result of which he had been admitted to hospital. There was discussion that afternoon between the caseworker of the Department and the CEO of Waminda about the circumstances. On 17 June the CEO of Waminda provided a written report by email of the circumstances.

9 On 18 June the manager case work of the Department of Family and Community Services filed an application with the Children's Court for rescission of the orders made on 12 June 2014 on the ground that the child had been placed at serious risk of harm and had required hospitalisation. An order was sought that parental responsibility for the child be allocated to the Minister.

10 That application was heard in the Children's Court on 19 June. The learned magistrate again delivered ex tempore reasons. He upheld the application made on behalf of the Minister or the Secretary of the Department. Relevantly, on 20 June 2014 the Children's Court made an order "pursuant to s 69, interim order made, allocating parental responsibility to Minister until further order". No formal record of the reasons for the order is available, but a transcription of the notes made by the legal representative appearing for the mother has been tendered. I will return to those reasons later.

11 Today the mother has filed a summons which has been heard urgently. By her summons she seeks, in substance, an order in the nature of certiorari quashing the order of the Children's Court of 19 June 2014 allocating parental responsibility for the baby to the Minister. She seeks an order that the matter be remitted to the Children's Court for determination according to law and an interim order pending determination of the summons that the baby be placed in the care of the plaintiff.

12 The mother's application is supported by the independent legal representative for the child, if undertakings are given by the mother, or orders are made along the lines of the orders made on 12 June 2014 that are intended to protect the child from risk of harm.

13 The matter is said to be urgent for the same reason as informed the Children's Court's judgment of 12 June 2014; namely, that now is a critical period for the bonding of the child with his mother and the mother with her child, and that if there is any material period of interruption that bond might never be established, or regained. I accepted the urgency of the application.

14 The application was made on two bases. First, counsel submitted that there was a serious question to be tried that the orders of 20 June 2014 should be quashed on the ground of error of law on the face of the record. There is no question in this case of denial of procedural fairness in the Children's Court. Nor, correctly, did counsel submit that there was any issue of jurisdictional error. Rather it was submitted that on its being found that there is a serious question to be tried for the quashing of the orders for error of law on the face of the record, the balance of convenience heavily favours the restoration of the child to his mother's care pending the determination of that issue.

15 The second and independent ground for the interim relief sought is pursuant to the Crown's parens patriae jurisdiction administered by this Court. That jurisdiction is expressly preserved by s 247 of the Children and Young Persons (Care and Protection) Act 1998.

16 I would not uphold the plaintiff's application on the first ground. The Children's Court's orders do not incorporate the reasons of the Court in the Court's orders. In Re Frieda and Geoffrey [2009] NSWSC 133; (2009) 40 Fam LR 608 I held that certiorari lies to quash an interim care order of the Children's Court. But I also held that the reasons for decision, if not expressly incorporated in the orders of the Court, do not form part of the record and therefore cannot be had regard to in determining whether there is an error of law on the face of the record. I will not repeat those reasons.

17 I was told that so far as counsel was aware that decision has not been dissented from in any later decision, and I am not aware of any such dissent. I think I should follow that decision. Nothing has been drawn to my attention that makes me presently doubt its correctness.

18 All of the alleged errors of law arise from the notes of the plaintiff's legal representative of the learned magistrate's reasons. There is at least a serious question as to whether the alleged errors were errors of fact rather than errors of law; but, in any event, because I do not think the reasons form part of the record, I do not think that there is a serious question to be tried in respect of the claim for final relief.

19 That is not the end of the matter. It is necessary to consider the parens patriae jurisdiction.

20 The Court has repeatedly warned of the need for exercise of caution in the exercise of the parens patriae jurisdiction where there are concurrent proceedings in the Children's Court. I again set out what was said by Palmer J in Re Victoria [2002] NSWSC 647; (2002) 29 Fam LR 157 at [37]-[40]:

"[37] I do not think that there should be encouraged a procedure whereby persons who have fully contested a matter in the Children's Court and wish to appeal can by-pass the appeal provisions of the 1998 Act and come straight to this Court seeking to invoke its inherent wardship jurisdiction. Quite apart from the fact that to do so would sanction a departure from the appeal procedure laid down by the legislature in the 1998 Act, such an application would involve a quite different question from that which is normally raised on an appeal. In an application to this Court in its wardship jurisdiction, the question is not whether the decision of the Children's Court, or of the District Court on appeal from the Children's Court, was right or wrong or whether the wide powers conferred on a Court under the 1997 or 1998 Acts were rightly or wrongly exercised or could have been better exercised. The question before this Court will be: what is in the best interests of the child as matters stand at the date of this Court's judgment. It may be that the circumstances revealed in, or flowing from, the decisions of the lower Courts have a great part to play in the consideration of that question, but they will not necessarily be conclusive. Indeed, in certain circumstances what transpired in the lower Courts might be utterly irrelevant to the question before this Court in the exercise of its inherent jurisdiction.

[38] That this is so is demonstrated by the fact that an order of this Court in its parens patriae jurisdiction does not set aside an earlier order made by a statutory Court such as the Children's Court; the statutory Court's order still stands although in a sense it may be said to be superseded where it is inconsistent with this Court's order, so that an injunction in the nature of prohibition would lie to restrain the statutory Court from enforcing its earlier inconsistent order: see In re Harris 37 SR(NSW) 17, at 28-29 per Jordan CJ and Long Innes J, and at 31-32 per Maughan AJ.

[39] As I have said earlier, 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.

[40] What I have said indicates, in my view, the approach which, as a general rule, this Court ought to adopt when its wardship jurisdiction is sought to be invoked in what is in substance an appeal from a decision of the Children's Court. This approach is supported, in my opinion, by decisions of this Court such as Re Weir (1953) 70 WN(NSW) 78; Ping v Van Der Kroft [1982] 2 NSWLR 731; T v H (1985) 3 NSWLR 270, at 274; and Re Anna, Bruno, Courtney and Deepak (supra) at para20 to para22. Of course, as these authorities indicate, there may be exceptional circumstances in a particular case which justify the Court in departing from that general approach."

21 There must be exceptional circumstances to justify the Court's departing from the general approach not to interfere with the decisions of the specialist court. Moreover, as Palmer J observed, an order of this Court in the parens patriae jurisdiction does not set aside an earlier order made by the Children's Court. Where the earlier order of the Children's Court is inconsistent with an order made by this Court in the parens patriae jurisdiction, the earlier order would be stayed or injunctions would go to restrain the party from seeking to enforce the earlier order. Nonetheless, the existence of separate but conflicting orders is undesirable.

22 In Re Frances and Benny [2005] NSWSC 1207 Young CJ in Eq said (at [17] and [18]) in reference to the parens patriae jurisdiction:

"[17] ... In exercising that jurisdiction the court's concern is predominantly for the welfare of the person involved. It is not a jurisdiction that is bogged down at all with any technicalities. It is a quite separate jurisdiction to the supervisory jurisdiction that is committed to this court by way of prerogative orders under which this court supervises inferior courts and tribunals to make sure that they do justice and right to all people before them.

[18] I agree with respect to what was said by Palmer J in Re Victoria (2002) 29 Fam LR 157 that the parens patriae jurisdiction is only to be exercised in exceptional cases. However, one of those exceptional cases is where it is urgently required that some protective order be made and the court can see that other curial processes may not be able to provide instant relief."

23 In Re Frieda and Geoffrey I followed these cases in deciding that in that case exceptional circumstances warranted making an order staying an earlier interim care order of the Children's Court on the ground that to do so was necessary to protect the children in question. I followed the approach indicated by Hodgson CJ in Eq (as his Honour then was) in Re Anna [2001] NSWSC 79 at [20]-[22]. Where the Court is asked to interfere with the Children's Court order, particularly a discretionary order, the Court would need to be satisfied that the decision is plainly wrong; or that there has been some error in the process leading to the decision, such as failure to give a proper hearing, error of law or failure to give reasons. His Honour also observed that this is not necessarily a strict limit because of the need to give paramountcy to the interests of the children. It is nonetheless relevant to the approach to be taken.

24 Having accepted on 12 June 2014 that the welfare of the child required that he remain in the care of his mother lest the bond between mother and child be broken, or not be able to be established, the question is why was the learned magistrate of a different view on 19 June. In that regard, according to the notes of his Honour's reasons, his Honour said:

"On reading the material that has been filed I don't think that any blame can be laid at the feet of the mother. What has occurred has been described in various ways including a pharmaceutical error, an error in dispensing the pharmaceuticals. What I can say also clearly that in dealing with this matter last week the Court recognised that it was in a sense going out on a limb by refusing the Department's application although the Court had a high expectation that matters that it relied upon included in that application would be followed very critically.

The case was unusual in that the Court had been presented with a great deal of evidence including the presence of the Waminda support workers in Court with the mother and the Court was given details of the level of support and case management that was going to be offered to the mother in the event that the child was restored to the mother. Unusually, Dr McCloud was also present at Court and had been treating the mother on the methadone program for a significant period of time and his opinion was that there should be no concerns.

The Court was placed in a position that it had confidence in what was being proposed against a backdrop that the Department would have supervision of the child and the mother would make certain Undertakings. There is no suggestion that the mother has breached any of her Undertakings and I want to reiterate that the Court doesn't see that there is any basis to lay any blame at the mother's feet and there is nothing in my view that can be called into question to her parenting capacity. What has happened however is that the Court has now lost confidence in the support that the mother is able to achieve through Waminda and other support services. I repeat it was a critical part of the Court's decision that this unusual level of support was available. Unfortunately there is a 'he says she says' conflict as between what the Department says happened and what Waminda workers say happened on the changeover. Given the time there is no way this Court can resolve that conflict and it would appear to the Court at least that the professionals involved in this case are becoming combative and again this does not instil confidence in the process.

So the Court is approaching this on the basis that there has in fact been a significant change in a relevant circumstance, namely the level of confidence that the Court did not have that the mother was going to be receiving professional supports that would help the child. These proceedings are not about the mother and whilst it recognises that Waminda is very supportive of the mother, these proceedings are about the safety, welfare and wellbeing of the child, and whatever happened, the child was placed at great risk in receiving a large overdose of morphine which could have had catastrophic consequences and I think everyone here needs to be grateful that that has not occurred. The potential for this child to have received a fatal dose of medication cannot be ignored."

25 These reasons are, with respect, somewhat opaque. It appears from the material that was before the Court on 19 June that the Minister raised essentially two matters of concern. The first was the fact that the child had been given excessive medication and the circumstances relating to that. The second was that according to the Department there had not been proper reporting of the events to the Department.

26 In my view, it was not enough to say that the child was placed at risk because of the excessive dosage given. In fact, the medical evidence before the learned Magistrate was that the child was not at material risk in relation to the dosages then given, although he may have been if that position had continued. The question that needed to be asked was why did that event happen and whether the circumstances showed that revocation of the earlier orders was necessary in the interests of the child to protect the child from the risk of harm.

27 The circumstances in which the overdose occurred show no fault on the part of either the mother or Waminda. They followed the dosage on the instruction given to them on the sheet by the caseworker from the Department. It was not open to the registered nurse to depart from the prescription apparently given. But the nurse did the next day, when alerted by the mother to the fact that the child was very drowsy, seek to calculate for herself, with the assistance of another midwife, what the required volume measure might be from a dosage of 0.5 milligrams noted by the pharmacist. There could be no criticism of her, and I do not think the learned Magistrate intended to make any criticism of her, for the dose which had been given to the mother and to her as the appropriate dose having been administered.

28 The evidence from the caseworker for the Department before the learned magistrate was to the effect that the Department was concerned that because the breastfeeding of the baby would resume it could be necessary to adjust the dosages of morphine downwards. The evidence is that breastfeeding of the child by the mother, who is on the methadone program, is desirable because it provides a mechanism for gradual withdrawal for the child. The Department's position appears to have been that they wanted the child taken to the hospital or to the doctor that evening so that any adjustments to the medication could be given.

29 The morphine was not handed over at the time of handover of the child by the Department to the mother and to Waminda. The nurse from Waminda rang Dr de Souza to obtain an interim script. He made it clear that he would not provide a repeat script for the morphine. Waminda then called the hospital. The nurse was advised that the child would have to go to the emergency department for general admission, based upon social grounds, and that medication was not available and that there could be a long wait. After that, the morphine was located. The dosage advised to Waminda and to the mother was given. It could hardly be a criticism of the mother or of Waminda that they did not then take the baby to the hospital.

30 The response of the mother the following day could not be faulted. She observed the baby being drowsy and contacted Waminda. The child was then taken to the doctor and admitted to hospital.

31 I am at a loss to understand how it could be said that these events showed that the Court could no longer have confidence in the professional support for the mother. It does not appear that any particular findings of fact were made which could justify such a conclusion.

32 The alternative position that may have influenced the learned magistrate was the Department's complaint that Waminda had not provided a significant risk of harm report as required by s 27 of the Children and Young Persons (Care and Protection) Act and that the mother had not advised the Department of these events.

33 The CEO of Waminda had provided evidence that was before the Children's Court which provided a clear explanation as to why in her professional judgment a report under s 27 of the Act was not required. The fact is that at least from the child's admission to hospital the child was not at risk of significant harm. The potential crisis had been appropriately handled and full information about it was given to the Department on the Monday, 16 June.

34 The paramount consideration is what is in the best interests of the child. I accept, as the learned Magistrate accepted on 12 June, that the best interests of the child lie with the child remaining in the mother's care, subject to the safeguards of the kind incorporated with the orders of that date.

35 The events which led to the revocation of those orders should not, rationally, on the material that was before the Magistrate or was before me, have led to a change to that assessment. Accordingly, I think in the exercise of the parens patriae jurisdiction that order 1 made on 20 June 2014 should be stayed until further order, or until final orders are made in the Children's Court in relation to the child, or until any different interim order might be made in the Children's Court if there is a material change of circumstances or if there is material fresh evidence that in the view of the Children's Court warrants the intervention.

36 Upon the plaintiff giving undertakings to the Court which I will shortly enumerate, I will make the following orders:

1. Order that order 1 made on 20 June 2014 by the Children's Court of New South Wales in relation to the child be stayed until further order or until final orders are made in relation to the child by the Children's Court.

2. Order that order 1 may be superseded by a different interim order made by the Children's Court if either material fresh evidence or a material change of circumstances justifies such a different order, in the view of the Children's Court.

37 The undertakings on the basis of which I am prepared to make those orders are as follows; that is to say, undertakings by the plaintiff to the Court:

(a) that she will work cooperatively with the officers of the Department of the Family and Community Services;

(b) that she will follow the reasonable directions of the officers of that Department;

(c) that she will allow officers of that Department to inspect the premises where the baby S resides or may be present from time to time and will allow the officers to meet the child;

(d) that she will remain engaged with the Waminda South Coast Women's Health and Welfare Aboriginal Corporation ("Waminda");

(e) that she will follow the directions of staff of Waminda;

(f) that she will participate in random urine analysis;

(g) that she will remain engaged with Dr McLeod and follow his medical advice;

(h) that she will immediately notify the Department of Family and Community Services at Nowra if baby S is hospitalised or needs urgent medical treatment; and

(i) that she will immediately notify the Department of Family and Community Services at Nowra if the child's father makes contact with her after his release from prison and advise the Department of the nature and details of that contact.

3. I order that the summons be otherwise dismissed.

4. Those orders are to be entered on Friday, 27 June 2014.

Decision last updated: 04 July 2014