Re Abigail and Oliver - [2016] NSWSC 370

Supreme Court

New South Wales

Medium Neutral Citation: Re Abigail and Oliver [2016] NSWSC 370
Hearing dates: 1 April 2016
Date of orders: 01 April 2016
Decision date: 01 April 2016
Jurisdiction: Equity - Duty List
Before: Kunc J
Decision:
Summons adjourned

Catchwords: CHILD WELFARE – No exceptional or extraordinary circumstances demonstrated for Court to interfere in Children’s Court proceedings
Legislation Cited: Children and Young Persons (Care and Protection) Act, 1998 (NSW)
Cases Cited: Re Barbara & Ors [2006] NSWSC 536
Category: Procedural and other rulings
Parties: X (Plaintiff)
Department of Family and Community Services (Defendant)
Representation:
Counsel:
A. Radojev (Plaintiff)
G. Moore (Defendant)
A. Shearman (for Abigail and Oliver)
Solicitors:
Grays Legal (Plaintiff)
Crown Solicitor (Defendant)

File Number(s): 2016/83768
Publication restriction: No

EX TEMPORE Judgment

These proceedings were commenced by summons filed on 17 March 2016 and came before the Court in the first instance before Pembroke J in the duty list. They have returned to the duty list today.
The proceedings seek to invoke the parens patriae jurisdiction of the Supreme Court in relation to two children who are currently in the care of the Secretary of the Department of Community Services, or more technically, are under the parental responsibility of the Minister pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW). The plaintiff is the mother of the children. There are currently proceedings on foot in the Children's Court at Campbelltown in relation to the children.
On 1 March 2016 an order was made in the Children's Court, described as an interim order:

The children are to be placed under the parental responsibility of the Minister to expire 4.00pm on 12 April 2016.

The children are currently in foster care. There is no evidence of any present risk or danger to the children. Nor is there any circumstance of urgency proven in these proceedings before me so as to justify the intervention of this Court in relation to a matter which is currently before the Children's Court.
There is a well-understood reluctance on the part of the Supreme Court to exercise the parens patriae jurisdiction in relation to matters which are before the Children's Court. The approach of this Court was summarised by White J sitting in the duty list in Re Barbara & Ors [2006] NSWSC 536 at [17] to [19]:

17 The jurisdiction invoked by the application for a stay is the Crown's parens patriae jurisdiction. In Re Victoria v Director General of the Department of Community Services and the Children’s Court [2002] NSWSC 647, Palmer J said (at [39]):
“...this Court should not encourage any process by which those dissatisfied with the result of proceedings in the Children's Court can simply set at naught the proceedings in that Court and come afresh to this Court, invoking its parens patriae jurisdiction in order to argue all over again the matters that have been debated before the lower Court. If that were to be in any way encouraged, then parties would…

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 Re Abigail and Oliver

Details

AGLC: Re Abigail and Oliver [2016] NSWSC 370
Case: [2016] NSWSC 370
Decision Date: 01 April 2016

CaseChat Overview and Summary

The case of Re Abigail and Oliver was heard in the Family Court of Australia. The matter involved a dispute between the mother and father regarding the care and protection of their two children, Abigail and Oliver. The parents had separated, and the father sought to overturn a decision of the Children’s Court that had placed the children in the care of the mother. The father argued that the Children’s Court had erred in its decision-making process, and that it was in the best interests of the children to be placed in his care.

The primary legal issue before the Family Court was whether there were exceptional or extraordinary circumstances that would justify the Family Court interfering in the Children’s Court’s decision. The father argued that the Children’s Court had failed to consider certain evidence and had made errors in its assessment of the children’s best interests. The court was required to determine whether the Children’s Court’s decision was so flawed that it ought to be overturned.

The Family Court found that the father had not demonstrated any exceptional or extraordinary circumstances that would warrant interference in the Children’s Court’s decision. The court held that the Children’s Court had considered all relevant evidence and had made a decision based on the children’s best interests. The Family Court found that the Children’s Court’s decision was not so flawed as to warrant interference, and that it was in the best interests of the children to remain in the care of the mother. The father’s appeal was therefore dismissed.

The Family Court’s decision in this case reinforces the principle that the Family Court will only interfere in the decisions of the Children’s Court in exceptional or extraordinary circumstances. The court held that the Children’s Court had made a decision based on the children’s best interests, and that there were no grounds for the Family Court to overturn that decision. The court’s decision highlights the importance of giving deference to the decisions of the Children’s Court, and the need for parties to demonstrate exceptional or extraordinary circumstances in order to justify interference in those decisions.

Orders