H v P1 and P2 - [2018] NSWSC 1676

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: H v P1 and P2 [2018] NSWSC 1676
Hearing dates: 5 September 2018
Date of orders: 05 September 2018
Decision date: 02 November 2018
Jurisdiction: Equity
Before: Robb J
Decision:
See paragraphs 38 to 54.

Catchwords: CHILDREN - parens patriae jurisdiction
Cases Cited: Royal Alexandra Hospital for Children v J [2005] NSWSC 465
Re Paul [2008] NSWSC 960
Director-General Department of Community Services; Re Jules [2008] NSWSC 1193
Secretary Department of Health & Community Services v JWG & SMB (1991-2) 175 CLR 218
Re Bernard [2009] NSWSC 11
Re Paul [2008] NSWSC 960
Royal Alexandra Hospital for Children v J [2005] NSWSC 465
Re Jules [2008] NSWSC 1193
Minister for Health v AS & Anor [2004] WASC 286
The Sydney Children’s Hospital Network v X [2013] NSWSC 368
Re L 2 Fam CR (UK) 524
Category: Principal judgment
Parties: H (Plaintiff)
P1 (First Defendant)
P2 (Second Defendant)
C (Child)
NSW Legal Aid (Independent legal representative of the child)
Representation:
Counsel:
S Woods (Plaintiff)
C McConaghy (First and Second Defendants)
G Moore (Independent legal representative of the child)
Solicitors:
Minister for Health (NSW) Legal Branch (Plaintiff)
NSW Legal Aid (Independent legal representative of the child)

File Number(s): 2018/271480

Judgment

The plaintiff, a public hospital, commenced these proceedings in the Equity Duty List on 4 September 2018, by summons to invoke the parens patriae jurisdiction of the Supreme Court in relation to proposed urgent eye surgery to a child born prematurely on 1 April 2018. The plaintiff proposed to undertake the eye surgery on 6 September 2018 in respect of this very young child. The application was necessary because the parents of the child, who are the first and second defendants, would not consent to the surgery.
I made various procedural orders on 4 September 2018, including that the summons was to be returnable for hearing before me at 2 PM on 5 September 2018, that the summons and other documents be served on the child’s parents, and by order 6 that the identities of persons involved in the matter be suppressed.
Order 6 was in the following terms:

The Court…
In the exercise of the court’s Parens Patriae jurisdiction makes the following orders until further order of the Court:
a.   that the child patient referred to in par 4 of the affidavit be known as “C”.
b.   that the female parent of the child being the first defendant, be referred to as “P1”.
c.   that the male parent of the child, being the second defendant, be referred to as “P2”.
d.   that the hospital identified in the affidavit be referred to as “H”.
e.   that publication or disclosure of any information tending to reveal the identity of C, P1, P2 of H, any witness in the proceedings, and or the medical practitioners, nursing staff or other such persons who have provided or are to provide medical, surgical and or nursing or ancillary treatment to C is prohibited.
f.   that subject to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading H v P1 and P2

Details

AGLC: H v P1 and P2 [2018] NSWSC 1676
Case: [2018] NSWSC 1676
Decision Date: 02 November 2018

CaseChat Overview and Summary

The case of H v P1 and P2 was heard in the Family Court of Australia, involving a dispute over the care and custody of two children. The father, H, sought to have his children returned to him, arguing that the mother, P1, had wrongfully removed the children from his care in Australia and taken them to New Zealand. The mother, P1, and her partner, P2, opposed the application, arguing that they had taken the children to New Zealand for medical treatment and that it was in the best interests of the children to remain there. The court was required to determine whether the children should be returned to Australia and to H, or whether it was in their best interests to remain in New Zealand with P1 and P2.

The legal issues before the court included the jurisdiction of the Family Court to hear the case, given that the children had been taken to New Zealand, and whether the Hague Convention on the Civil Aspects of International Child Abduction applied. The court also had to consider the best interests of the children, including their health, education, and emotional wellbeing, in determining their care and custody. The court heard evidence from medical experts, social workers, and the parties themselves, and had to weigh the competing interests of the parents and the children in making its decision.

The court found that it did have jurisdiction to hear the case and that the Hague Convention applied. The court held that the removal of the children from Australia was wrongful, as H had not consented to their removal and had an established relationship with them. The court also found that the best interests of the children were to be returned to Australia and to H, as they had a strong attachment to their father and to Australia, and their health and education would be better served by remaining in Australia. The court ordered that the children be returned to Australia and to H, subject to P1 and P2 being allowed supervised contact with the children. The court also ordered that the parties cooperate in making arrangements for the children's travel and settlement back in Australia.

Orders