Della-Bosca v Department of Family and Community Services

[2014] NSWSC 1568

Supreme Court

New South Wales

Medium Neutral Citation:

Della-Bosca v Department of Family and Community Services [2014] NSWSC 1568

Hearing dates:

17 October 2014

Decision date:

17 October 2014

Before:

Rothman J

Decision:

1. Until further order of the Court, the defendant be restrained from taking any child born to the plaintiffs on or after 17 October 2014 or taking any step to interfere with the care and control of any such child;

2. The plaintiffs have leave to file and serve a summons in the registry;

3. The filing fees for the said summons be waived;

4. The summons be served on the defendant by 4pm Monday 20 October 2014;

5. The matter be stood over before the duty judge at 10am on Friday 24 October 2014;

6. Pursuant to the terms of Uniform Civil Procedure Rules, and in particular Part 7.36 and 7.37, the Court refers the plaintiffs to the Registrar for the purpose of having the plaintiffs referred to a barrister/solicitor on the pro bono panel for legal assistance. Such legal assistance to include advice in relation to the proceedings, representation on directions hearings, interlocutory or final hearings, arbitration or mediation, the drafting or settling of summons or any amended summons and any other documents to be used in the proceedings and representation generally in the conduct of the proceedings;

7. Liberty to apply to all parties on short notice;

8. These orders to be entered forthwith.

Legislation Cited:

Uniform Civil Procedure Rules

Category:

Interlocutory applications

Parties:

R. Della-Bosca (First Plaintiff)
C. Tilley (Second Plaintiff)
Department of Family and Community Services (Defendant)

Representation:

Counsel:
Self-represented (First and Second Plaintiff)
No appearance (Defendant)
Solicitors:

File Number(s):

2014/305921

Publication restriction:

None

EX TEMPORE Judgment

1. HIS HONOUR: Before the Court is an application in which the plaintiffs rely upon a summons not yet filed or served, a notice of motion, application to remit or refund court fees, and two affidavits, also not yet filed, and a case summary document.

1. Essentially the proceedings concern attempts by the Department of Family and Community Services (the Department) to deal with the situation that will arise when the first known plaintiff gives birth to the child with which she is currently pregnant. The birth is due to occur on 3 or 4 November 2013, but from the bar table the first plaintiff tells me that it is likely, according to her treating doctors, that the baby may be delivered earlier than that date.

1. There are a number of difficulties with dealing on a permanent or semi-permanent basis with the matters that are before me, or dealing with it by way of an order that will have effect for as long a period as six months, which is the desire of the plaintiffs.

1. As I glean from that which has been put in the documents, there are what are said to be incorrect allegations made against the first plaintiff in relation to her mental state, and the second plaintiff in relation to past conduct, which has given rise to a view within the Department. The matters raised are complicated by a determination, which is not before this Court, relating to children of the first plaintiff but not the second plaintiff, that are the subject of Family Court orders. I am unaware of the basis for such orders, nor am I aware as to whether there has been any determination by any court of matters that are said to be allegations made by the Department, who is the putative defendant in the proceedings.

1. Obviously nothing can be done by the Department until such time that the child is born. Moreover, it would be most unusual for anything to be done by the Department during the time that the mother and child were under the care of the hospital, which, I hasten to add, I assume is the place at which the birth will occur.

1. A difficulty arises because what is sought are orders that enjoin the Department, in circumstances where the Department has not been heard, and the material upon which the Department relies, or seeks or purports to rely, is not before the Court.

1. It seems to me that it is appropriate for an order to be made. The order will be very temporary in terms of its operation. It will restrain the Department from any conduct interfering with the care and control of a child born hereafter to the plaintiffs until further order of the Court, and I will have the matter returned to the Court before the duty judge next Friday.

1. The Court makes the following orders:

(1)   Until further order of the Court, the defendant be restrained from taking any child born to the plaintiffs on or after 17 October 2014, or taking any step to interfere with the care and control of any such child;

(2)   The plaintiffs have leave to file and serve a summons in the registry;

(3)   The filing fees for said summons be waived;

(4)   The summons be served on the defendant by 4pm, Monday 20 October 2014;

(5)   The matter be stood over before the duty judge at 10am, Friday 24 October 2014;

(6)   Liberty to apply to all parties on short notice;

(7)   The Court makes a further order pursuant to the terms of Uniform Civil Procedure Rules, and in particular Part 7.36 and 7.37, the Court refers the plaintiffs to the Registrar for the purpose of having the plaintiffs referred to a barrister/solicitor on the pro bono panel for legal assistance. Such legal assistance to include advice in relation to the proceedings, representation on directions hearings, interlocutory or final hearings, arbitration or mediation, the drafting or settling of summons or any amended summons and any other documents to be used in the proceedings and representation generally in the conduct of the proceedings;

(8)   These orders to be entered forthwith.

Decision last updated: 12 November 2014