DFaCS re Poppy

[2012] NSWDC 281

District Court

New South Wales

Medium Neutral Citation:	DFaCS re Poppy [2012] NSWDC 281
Hearing dates:	23, 24, 25 & 26 July 2012
Decision date:	24 August 2012
Before:	Judge R A Sorby
Decision:	Appeal Allowed
Catchwords:	Care and Protection - Appeal from Children's Court - s 90 Application - restoration of child to father
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998
Cases Cited:	Re Tracey [2011] NSWCA 43
Category:	Principal judgment
Parties:	Department of Family and Community Services (DFaCS) (Plaintiffs) John and Kim Upton (1st Defendants) Sam Emery (2nd Defendant)
Representation:	Ms M Neville of counsel (Plaintiff) Mr G Moore of counsel (1st Defendants) Ms E Lawson of counsel (2nd Defendant) Mr P Guterres of counsel (ILR for the Child) Crown Solicitor (Plaintiff) Ellis McLachlan Solicitors (1st Defendants) Stanfords Solicitors (2nd Defendant)
File Number(s):	2011/297811
Publication restriction:	Pseudonyms have been used in order to anonymise the child and parties

Judgment

1. By way of Amended Summons, the Director-General, DFaCS ("the Plaintiff") seeks the following orders in relation to the child Poppy (born 14 March 2006):

(1)   An order quashing the final orders made in the Children's Court at Woy Woy on 15 August 2011 in the matter of Poppy (born 14 March 2006).

(2) An order pursuant to s 79(1)(b) of the Children and Young Persons (Care and Protection) Act 1998 ("Care Act") that parental responsibility for Poppy be allocated to her father Sam Emery, to the exclusion of the mother, Kate Springer, from the making of final orders.

(3) An order pursuant to s 81(1)(c) of the Care Act that the aspect of parental responsibility as to contact between Poppy and John and Kim Upton and their son Josh, be allocated to be Minister for DFaCS for a period of two years from the making of final orders.

1. The grounds of the Appeal are:

(1)   That the plaintiff is dissatisfied with the final orders of the Children's Court at Woy Woy on 15 August 2011.

(2)   That the Children's Court erred in not placing sufficient weight on:

(a)   the capacity of the father Sam Emery ("Father") to provide an adequate standard of care for the child Poppy Springer (born 14 March 2006) ("Poppy"); and

(b)   the strength of Poppy's attachment to the Father and her siblings.

(3) That the Children's Court erred by failing to apply or properly apply the principles under section 9 of the Children and Young Persons(Care and Protection) Act 1998.

1. The first Defendants, Mr John and Mrs Kim Upton ("Mr & Mrs Upton") oppose the granting of the orders sought by the Plaintiff.

1. The Second Defendant, Mr Sam Emery ("Mr Emery") supports the Appeal by the Plaintiff and the grounds of the Appeal set out above.

1. The mother of Poppy, Kate Springer ("Ms Springer"), was not a party to the proceedings although the orders sought directly impinge upon rights she might have as Poppy's mother. I was satisfied by an affidavit of service [Exhibit B] that Ms Springer was…