KM v Director-General, Family and Community Services
[2014] NSWSC 176
•03 March 2014
Supreme Court
New South Wales
Medium Neutral Citation: KM v Director-General, Family and Community Services [2014] NSWSC 176 Hearing dates: 3 March 2014 Decision date: 03 March 2014 Jurisdiction: Equity Division Before: Lindsay J Decision: Summons dismissed
Catchwords: FAMILY LAW AND CHILD WELFARE - Children - Guardianship - Application for judicial review of Children's Court decision - Application for exercise of parens patriae jurisdiction - Application made notwithstanding right of appeal to District Court - Summons dismissed Legislation Cited: Children and Young Persons (Care and Protection) Act 1998, s 71 Cases Cited: Re Elizabeth [2007] NSWSC 729
Re Victoria [2002] NSWSC 647Texts Cited: - Category: Principal judgment Parties: Plaintiff: Mother
First Defendant: Director General, Family and Community Services
Second Defendant: Father
Third Defendant: Independent Child RepresentativeRepresentation: Counsel:
AG Potkonyak (Plaintiff)
V Hartstein (First Defendant)
R McLachlan (Third Defendant)
Solicitors:
Crown Solicitor's Office (First Defendant)
Ellis McLachlan (Third Defendant)
File Number(s): 2014/0003451
Judgment - EX TEMPORE
Two boys, respectively aged eight and five years, are the subject of care proceedings in the Children's Court of New South Wales sitting at Gunnedah.
On 8 November 2012 that court held itself satisfied, pursuant to s 71 of the Children and Young Persons (Care and Protection) Act 1998 (New South Wales) ("the Care Act"), that the children were in need of care.
That determination was the subject of an application for re-opening subsequently made to the court.
On 17 January 2014 the court declined to uphold the challenge to the earlier determination and, having dealt with various other matters, determined that it would proceed on 5 March 2014 to consider the making of final orders.
The mother of the children, as plaintiff in these proceedings, asks this Court to intervene, now, either by a grant of judicial review relief or by an exercise of parens patriae jurisdiction.
She asks this Court to intervene notwithstanding a right of appeal she will have (under the Care Act, s 91) to the District Court if hereafter (on 5 March 2014 or otherwise) orders are made that she still wishes to challenge.
The plaintiff's solicitor, before me, takes exception to the use by the Children's Court on 8 November 2012 of an expression suggesting that the court's determination was made "with the consent, but without admissions" of the mother.
This expression, in context, must be qualified by the evidence that was evidently before the Court at the time of its determination dealing with substantive issues.
On the material presented in support of the plaintiff's summons it is plain that the Children's Court had before it material capable of supporting the determination it made on 8 November 2012, with or without any element of "consent" on the part of the mother.
There is no apparent basis for a grant of judicial review relief or, for that matter, an exercise of parens patriae jurisdiction.
In any event, the principles applied by this Court in dealing with pending Children's Court proceedings emphasises the importance of ensuring that over-hasty interventions are not made by the Court in the ordinary processes of the Children's Court and, on appeal, the District Court. See Re Victoria [2002] NSWSC 647; Re Elizabeth [2007] NSWSC 729.
There is nothing in the materials relied upon in support of the summons which suggests that the current Children's Court proceedings are of such a nature as to require intervention.
Matters of complaint advanced in support of the summons appear to focus, primarily, on questions of fact that must ordinarily be entrusted to the Children's Court and, on appeal, the District Court.
The appeal to the District Court for which s 91 of the Care Act provides envisages that, on the institution of an appeal, the Director General bears the forensic burden of proving a case, originally advanced in the Children's Court, afresh. There is no compelling reason, in these proceedings, for departing from that procedural regime.
The father of the boys, the subject of the proceedings has not appeared in the proceedings. The burden of opposing the mother's claims for relief has fallen to the Director General, with the express support of the boys' independent child representative.
I have been invited to proceed on the basis of an adjournment of the summons, with or without a stay of the Children's Court proceedings, until a date after 5 March 2014. In my judgement, this course should not be followed. There is a clear procedure mapped out in the Children's Court.
There is a general appeal to the District Court available in the case of any dissatisfaction with orders the Children's Court may make and, absent exceptional circumstances, the appropriate course is to leave the parties to the Children's Court and the District Court.
Accordingly, I order that the summons be dismissed.
I note that there is no application for costs. The only order that is made is that the summons be dismissed.
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Decision last updated: 05 March 2014
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