A recent case decided by the NSW Court of Appeal has revealed the seriousness with which compliance with Orders made pursuant to the Family Law Act 1975 will be treated and given a clear message to professionals whose right to practice depends on registration to refrain from interfering with such Orders.
I am indebted to Brad Wright, Counsel at the Queensland Bar for his original LinkedIn post which made the decision known to me.
In Pridgeon v Medical Council of New South Wales [2022] NSWCA 60 (click to be taken to the decision online), a doctor practising in Grafton was the subject of suspension between 2018 and the Court of Appeal’s decision on 14 April, 2022, because he had played an active role in harbouring children and their Mother, where the subject children were required by parenting Orders to be recovered by police and returned to live with their Father.
The doctor had harboured the children since their arrival in Grafton in 2014 and whilst aware of the existence, contents and obligations created by the parenting Orders of the Court, he nevertheless acted to frustrate the children’s return to their Father and support the position the Mother took – she being in contempt of the Orders.
The doctor was charged by the Australian Federal Police and Queensland Police, with a number of criminal offences, including two charges of conspiring to defeat justice contrary to Section 42 of the Crimes Act 1914 (Cth) and two charges of child stealing contrary to Section 363(1)(b) of the Criminal Code (Qld). These charges carried maximum penalties of imprisonment for 10 years and 7 years respectively.
Some or all of the Queensland charges were later withdrawn, leaving the Commonwealth charges.
The Medical Council of NSW acted using an emergency power, suspending the doctor’s right to practice.
When the Council’s decision was reviewed in the NSW Civil and Administrative Tribunal, the Principal Member was none other than the retired Family Court Justice, The Hon. Mark Le Poer Trench.
His Honour took the role of Acting District Court Judge of NSW and sat in NSWCAT after retiring from the Family Court of Australia in 2018.
The NSW Civil and Administrative Tribunal upheld the Council’s decision. It did not base its decision on the doctor being a risk to the health and safety of the public or his patients, but instead on the basis of fitness in the holistic sense, coupled with the instance of being charged with a serious crime and behaving in a way which undermined the public’s confidence in the Courts and the rule of law.
The Court of Appeal reproduced the Tribunal’s reasoning thus:
The following paragraphs of the Tribunal decision should be noted:
“[192] This case is most unusual for many reasons, not the least of which is that no complaint has been made about the Appellant’s practice as a medical practitioner. No patient has complained about his work as a doctor. On the contrary, it seems many patients of the Appellant have extolled his action in ‘saving children from abuse’. The Appellant has been very open with disclosing his actions in what he saw as rescuing two girls from the worst of abuse by their father. His case, as it has been presented to us, is that the children have been failed by police and child protection agencies in Queensland and the Family Court, the latter body making orders that the twin girls were to live with their father and spend restricted time with their mother.
[193] The action sought by the Medical Council under s 150 is not based on an allegation that the Appellant’s registration needs to be suspended to protect the health and safety of the public, its case is that the public interest demands such a suspension.
[194] Although it seems on the Appellant’s evidence that he trusted the twins’ mother when she initially informed him the twins had been sexually abused by their father, the Appellant saw for himself evidence which supported a conclusion that such an allegation was at least probable. We have no doubt that the Appellant genuinely believed the children would be harmed by their father if they were returned to his care.
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[199] Whether the Appellant has broken a law, as alleged by the relevant Crown bodies that now prosecute him, is yet to be determined. Even if he is acquitted or ultimately not prosecuted, because the Crown withdraws the charges, it would still need to be determined whether the Appellant is a fit and proper person to hold registration as a medical practitioner.
[200] There are clearly circumstances where a medical practitioner charged with a criminal offence would not have his/her registration suspended pending the determination of any such charges. This might occur where a neighbourhood dispute led to allegations and charges of breaching an Apprehended Violence Order. Such charges could carry a sentence of incarceration if proved. In circumstances where the facts alleged are seriously denied and the denials can be seen to have merit, the Medical Council may not suspend the registration of the practitioner pending the outcome of the criminal case. It may impose conditions or take no action at all.
[201] The action to be taken under s 150 clearly has to be measured by the potential seriousness of the situation presented to the Medical Council or Tribunal. In this case, the charges arise out of a circumstance which would be expected to disturb the ordinary citizens of Australia. The allegations against the Appellant are that he, with others, orchestrated the hiding of two children in order to evade the effect of orders of an Australian court. It sends a message that it is permissible to evade the orders of an Australian court, where that order is perceived to have been wrongly determined. It has the potential to empower others in society to do the same and to undermine the confidence which parents of young children are entitled to have that their children will not be removed from their lawful custody and kept from them for years. It also has the potential to undermine the rule of law and have flow on consequences for areas of law outside of family law. It is that potential which defines the risk to the public (i.e. public interest) identified in s 150 of the National Law.
[202] The further risk to the ‘public interest’ is the erosion of the public perception that only medical practitioners ‘who exhibit traits consistent with the honourable practice of an honourable profession’ will be permitted to be registered by the regulatory authority. The term ‘honourable practice’ must, in our view, include ‘to act lawfully at all times’.
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[204] The determination required by s 150 in this case focuses upon the time when the matter came before the Tribunal for hearing. It must do so as it requires that in a merits appeal all relevant facts to the date of the hearing in the Tribunal are considered. The nature of the hearing is a ‘hearing afresh’.
[205] We consider that it is in the public interest to take action under s 150 of the National Law in this case. We accept the mandatory requirement that we must take action where we are satisfied it is appropriate to do so because it is in the public interest.
[206] We also reflect upon the words ‘high standard’ as referred to above in the quoted portions of earlier decisions.
[207] The public interest, which we find requires us to take action, is to uphold the confidence of the public in members of the medical profession. That is, that the public requires that members of the medical profession act within the law at all times and act in a manner which upholds the rule of law in this land. Confidence in the medical profession, we consider, is generally likely to be eroded where the public learn a medical practitioner has been charged with committing a criminal act carrying the possibility of incarceration for a significant time.
[208] We also find that the seriousness of the circumstances presented to the Medical Council in the earlier determinations and to this Tribunal, is informed by the possible conviction of the Appellant for any of the charges he has now been committed to stand trial on. In this respect, we bear in mind the provisions of ss 55, 144 and 149C of the National Law.
[209] It follows that the seriousness of the situation currently faced by the Appellant requires a significant step to be taken by the Tribunal.
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[213] In order to make a final decision in this matter we have weighed the following considerations:
(1) The criminal charges do not arise out of the Appellant’s practice of medicine;
(2) The nature of the charges is very serious and they carry a potentially lengthy sentence of imprisonment;
(3) It has now been in excess of two and a half years since the Appellant was charged and released on bail;
(4) The bail conditions imposed on the Appellant are very restrictive both in the geographical area in which he is permitted to be at any particular time and the contact he is restrained from having with a significant number of people;
(5) The Appellant has not been engaged in any other employment since 29 October 2018 when his registration was suspended by the Medical Council;
(6) The law requires that the Appellant be regarded as innocent of the charges he faces until the trial has been heard and sentence otherwise given;
(7) There is evidence that a cohort of prior and possibly prospective patients would willingly engage the Appellant as their medical practitioner knowing of the charges laid against him and the circumstances out of which the charges arose;
(8) The Appellant proposes to defend the charges and has stated he has a number of grounds upon which he will proceed;
(9) The charges against the Appellant have changed since he was originally charged in October 2018;
(10) The action of the Appellant had the potential to challenge the rule of law. The Appellant knew at the time he assisted the twin girls and their mother to travel out of Queensland (or at least away from the person who had the benefit of a residence order for them) that they were seeking to evade the ruling of a superior court of record in Australia;
(11) The Appellant’s involvement in assisting to hide the twin girls and their mother from authorities legitimately searching for them is well known to the public at large because of the publicity which attended his arrest and subsequent court appearances.
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[218] We have already considered the motivation for the Appellant to have taken the action he did in relation to assisting the mother of the twin girls and the girls themselves. We are satisfied he was confronted with statements from the mother, the behaviour of the twin girls as observed by him, and other physical evidence, which confirmed for him the veracity of the allegations the mother had made about the father of the twins. We consider it was reasonable for the Appellant to believe the twin girls had been the subject of sexual abuse and that the abuse probably came from their father. None of that however, in our view, for the reasons set out above, can be accepted as justification for the Appellant engaging in the action he did, as he has disclosed and as set out in these reasons. That conclusion is so reached regardless of whether the Appellant is correct in his assertion that he has not committed the crimes he has been charged with. The action taken by the Appellant, in our view, has the potential to undermine the fabric of our society which is dependent upon the rule of law being effective and complied with by the citizens of this country. Challenges to decisions of our courts must be taken through the processes which are available. To take action which is motivated to defeat the ruling of a court is such a challenge to our orderly existence that this Tribunal must treat the action as extremely serious.
[219] Having concluded as we have above, we now determine the provisions of the National Law, which we have set out herein, must operate to send a message to the practitioners of Australia that such action, as taken by the Appellant, is to be regarded as very serious. We conclude such action does have the potential to bring the medical profession into disrepute, if it is not clear to the public at large that the bodies that control the profession do not sanction that action. We conclude that suspension of the Appellant’s registration as a medical practitioner is necessary in the public interest and should be imposed pursuant to s 150 of the National Law. Such suspension should continue until the Appellant has concluded his trial and then makes another application pursuant to s 150A of the National Law, which he may make as of right and as provided for in the National Law. It will then be for the Medical Council to determine if any further action is necessary.”
The Court of Appeal went on to allow the doctor’s appeal.
It held the use of the emergency power to suspend registration, should not have been exercised and should have given way to the doctor’s right to presumption of innocence pending the resolution of the criminal law matters. Further, the emergency power was to protect the health and safety of patients who might otherwise be in danger if the emergency power was not exercised.
Here, where the issue was character and fitness-based concerns and where there had been no patient or colleague-driven complaint, the Court of Appeal felt the use of the emergency power was inappropriate.
Once one reads the decision, the conduct of the doctor is laid bare through his own frank admissions – the doctor and participation in transcripted records of interview. It is a very telling level of involvement.
In the context of family law, he has, with full knowledge of a lawfully obtained operative Order which required the opposite, acted to aid and abet a person fleeing and frustrating the operation of the Order.
On a practical level, one surmises that the AFP officers who were hunting for the children, probably since at least 2014, suffered being thwarted by the doctor, whose resources and harbouring made their job all the harder and meant the Orders remained not complied with for an inordinate amount of time.
Whilst the doctor has won this round, and has become entitled to practice once again, his admissions against interest seem to make it inevitable there will be legal consequences for him which will ultimately darken the same doors once again.
It seems practically only a matter of time before either the Father of the children complains about his conduct in a way which fills the void the Court of Appeal said existed (absence of complaint) or a Justice of the Court refers the conduct to the professional body for its consideration.
The case certainly makes it plain that once the Court makes an Order, it may be to a professional’s peril to actively support someone who seeks to remain in contempt of it in a similar manner. At the time of the Court of Appeal’s decision, the doctor had been without registration for more than three (3) years (2018 to successful appeal on 14 April, 2022). That is a major impact in and of itself.
Section 42 of the Crimes Act 1914 (Cth) is able to be viewed by clicking here.