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

1. 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.

2. 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.

3. 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.

4. 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.

5. 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 inevitably face the risk of being involved in a multiplicity of uncontrolled proceedings fought in the Children's Court and in the Supreme Court, with the distinct possibility of conflicting concurrent orders obtained in the Supreme Court and in the lower Court.”

18 In Re Frances & Benny [2005] NSWSC 1207, Young CJ in Eq said (at [18]) that he agreed with the observation of Palmer J in Re Victoria that the parens patriae jurisdiction is only to be exercised in exceptional cases. His Honour observed that one of the exceptional cases in which the Court acts is where it is urgently required to provide some protective order and there are no other curial processes available to provide instant relief.

19 In Director-General of the Department of Community Services v Priestley [2004] NSWSC 639, Young CJ in Eq said (at [5]):

The parens patriae wardship jurisdiction of the Supreme Court is a very important one in the administration of justice in New South Wales. However, as Palmer J said in Re Victoria it is only in the most extraordinary circumstances that this Court should be asked, in the exercise of its parens patriae jurisdiction, to set aside or affect the decision of a magistrate in a Children's Court merely because a party is dissatisfied with that decision. It is also inappropriate in almost all cases for this court to be asked to deal with the matter in the parens patriae jurisdiction when the only errors alleged against the learned magistrate, who is a specialised magistrate in a specialist jurisdiction, is that he or she in the exercise of a discretion failed to give due weight to a number of factual circumstances or disproportional weight to others or where there is an error of fact that does not go to the fundamentals of the case.

6. These proceedings are brought because the mother is of the view that there has been a relevant change of circumstances, which it is not necessary for me to detail in these reasons, that she wishes to submit justify a return of the children to her. Her submissions may or may not be correct. I have not been required to consider it at all. However, the change in circumstances, both in its nature and timing, does not warrant the description of exceptional or extraordinary circumstances, as those terms have been used in the cases cited above, to warrant the interference of the Court.

7. I have also been informed by counsel for the plaintiff that there was some doubt as to whether or not the hearing presently fixed in the Children's Court at Campbelltown for 12 April 2016 would be a hearing or a mention. The interim order quoted in paragraph [3] above makes it clear that the order will expire at 4.00pm on 12 April 2016. It follows, as a matter of course, that in the absence of some resolution between the parties as to what is to happen after 12 April, there will have to be a hearing on 12 April in the Children's Court to determine what is to happen in relation to the care and custody of these children. Counsel for the Secretary has confirmed to me his understanding to the same effect, namely that there will be a hearing in the Children's Court on 12 April 2016.

8. In those circumstances this Court declines to hear the application today. Nevertheless, these proceedings having been commenced, the parties are content to adopt the Court's suggestion that these proceedings be stood over to shortly after the hearing in the Children's Court on 12 April. It may be that, as a result of that hearing, these proceedings will be rendered otiose. On the other hand, there may be still be some utility in these proceedings. That can be considered on the next occasion.

9. For these reasons, the Court orders that these proceedings be stood over to before the Duty Judge on 14 April 2016 at 10.00am. In addition the parties have agreed some other procedural orders which I shall make.

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Decision last updated: 05 April 2016