District Court
New South Wales
Medium Neutral Citation: LZ and QJ v FACS [2017] NSWDC 414 Hearing dates: 17-24 July 2017; 02 August 2017 and 28 September 2017 Date of orders: 29 September 2017 Decision date: 29 September 2017 Jurisdiction: Civil Before: Knox SC, ADCJ Decision: I dismiss the summons and appeal in relation to the child A
The orders of the Children's Court at Bidura made on 7 December 2016 in relation to Y are conformed
That except as provided in Order 4, all aspects of parental responsibility for Y, be allocated to the Secretary
Catchwords: APPEAL FROM CHILDREN'S COURT - Parents' found guilty of assault occasioning actual bodily harm - AVO Order to protect children - Children's attachment to the carers' - sibling bond - whether to separate siblings - cultural considerations - criticism of carers' by parents' counsel - concern parents will leave Australia - whether the Secretary will renew children's passports - assessment of parents Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Cases Cited: DFaCS re Day [2012] NSW ChC 14
"V V" v District Court of New South Wales [2013] NSWCA 469
Director-General, Department of Community Services v D & Ors [2007] NSWSC 762
Re Kerry (No 2) [2012] NSWCA 127
Re Tracey [2011] NSWCA 43
Donnell v Davey [2010] Fam CAFA 15Texts Cited: UN Convention of the Rights of the Child 1989 Category: Principal judgment Parties: L Z (First Plaintiff)
Q J (Second Plaintiff)
The Secretary, Department of Family and Community Services (First Defendant)
Y J (Second Defendant)Representation: Counsel:
Solicitor:
L Goodchild (First and Second Plaintiffs)
M Anderson (First Defendant)
G Moore (Second Defendant)
S Gardiner (Third Defendant)
File Number(s): 2016/384724 Publication restriction: None
Issue
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The issue in this case concerns the parenting and care arrangements to be made for:
W J (A) (aged 12 ½)
Y J (Y) (aged 6 ½)
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The children are currently under the care of the Secretary, who proposes that the children should remain living with their current carers in a southern Sydney coastal suburb.
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The parents seek that the child, Y, be restored to their care on the basis that:
she will reside with the parents at an inner city suburb
she will continue at her present school at a southern Sydney coastal suburb; and
she will see A at the carers’ house or some other agreed venue on a weekly basis.
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In the alternative, they seek weekly contact with Y extending to overnight contact on a regular fortnightly basis. The parents do not press for the restoration of A nor do they seek contact orders given the strength and consistency of her wishes.
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There are no separate or different interests between the two plaintiff parents.
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The respective lawyers for each of the two children propose that each child remain with the carers with whom they are currently residing. A (aged 12½) is able to give direct instructions to her lawyer whose views, in any event, are identical to those expressed by…
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- Case
- [2017] NSWDC 414
- Decision Date
CaseChat Overview and Summary
The court considered the children's best interests, the parents' unfitness to care for them, and the children's attachment to their carers. The judge emphasised the importance of the children's stability and continuity of care, noting that the carers had provided a safe and nurturing environment. The court found that the parents' conduct posed a significant risk to the children's safety and wellbeing. The judge rejected the parents' argument that the siblings should not be separated, highlighting the strength of the sibling bond and the potential harm of separation.
The court also considered the parents' cultural background and their potential departure from Australia. The judge noted that the parents had not provided any evidence to support their claim that the carers were unsuitable or that they would be better able to care for the children in the future. The court concluded that the children's best interests would be served by remaining with the carers and that the Secretary should be granted all aspects of parental responsibility, except as provided in Order 4. The court dismissed the summons and appeal in relation to one child, while confirming the Children's Court orders in relation to the other child.
Orders
Orders of the court
I dismiss the summons and appeal in relation to the child A
The orders of the Children's Court at Bidura made on 7 December 2016 in relation to Y are conformed
That except as provided in Order 4, all aspects of parental responsibility for Y, be allocated to the Secretary
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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