Re Alan

Case [2008] NSWSC 379 23 April 2008

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Reported Decision:
71 NSWLR 573

New South Wales

Supreme Court

CITATION: Re; Alan [2008] NSWSC 379

HEARING DATE(S): 23 April 2008

JUDGMENT OF: Gzell J

EX TEMPORE JUDGMENT DATE: 23 April 2008

DECISION: Application dismissed. No order as to costs.

CATCHWORDS: FAMILY LAW AND CHILD WELFARE - Child welfare other than under Family Law Act 1975 and related Acts - Parens patriae jurisdiction - Parents dissatisfied with interm care order of Childrens Court - Order sought dismissing orders of the Childrens Court - Whether parens patriae jurisdiction should be enlivened only in exceptional circumstances - Whether exceptional circumstances established - Whether parents should pay costs of Department of Community Services and the independent children's representative

LEGISLATION CITED: Children and Young Persons (Care and Protection) Act 1998

CASES CITED: Re Victoria [2002] NSWSC 647
Director-General of the Department of Community Services v Priestly [2004] NSWSC 639
Re Liam [2005] NSWSC 75
Re Barbara & ors [2006] NSWSC 536
Re Elizabeth [2007] NSWSC 729

PARTIES: Re: Alan (Plaintiff)
Children's Court of New South Wales (First Defendant)
Director-General of the Department of Community Services (Second Defendant)
Katarzyna Rutkowska (Third Defendant)

FILE NUMBER(S): SC 2354/08

COUNSEL: Ms M Fraser (Plaintiffs)
Mr M Higgins (Second Defendant)

SOLICITORS: Dennis & Co Solicitors (Plaintiff)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

WEDNESDAY 23 APRIL 2008

2354/08 RE: ALAN

EX TEMPORE JUDGMENT

1 This application was heard in closed court pursuant to an order of Bergin J of 17 April 2008 to that effect, that the matter be given the above pseudonym and that the identity of the children involved not be disclosed.

2 The application is for the court in exercise of its parens patriae jurisdiction to order that an interim order made by the Children’s Court of New South Wales on or about 6 November 2007 and continued on two occasions granting parental responsibility of the children to the Minister for Community Services be discharged.

3 Alternatively, an order is sought that, until further order of this court or of the Children’s Court, the children be permitted to have contact with the plaintiffs, their parents, between specified hours each Saturday on an unsupervised basis.

4 In the further alternative, an order in the nature of mandamus is sought directing the Children's Court to hear the mother's application within 14 days.

5 The mother's application of 8 April 2008 was for an order that the application made by the Director-General of the Department of Community Services for the 6 November 2007 order be dismissed and for interim orders to be made.

6 The extent of the parens patriae jurisdiction of this court with respect to children in the position of the children in this case has been considered on a number of occasions.

7 In Re Victoria [2002] NSWSC 647, Palmer J said at paragraph [31] that it was true that the Children and Young Persons (Care and Protection) Act 1998 did not limit the parens patriae or the wardship…

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 Alan

Details

AGLC: Re Alan [2008] NSWSC 379
Case: [2008] NSWSC 379
Decision Date: 23 April 2008

CaseChat Overview and Summary

The case of Re Alan was heard before the Family Court of Australia, where parents sought to challenge a care order made by the Children's Court for their child, Alan. The parents were dissatisfied with the care arrangements that had been put in place, arguing that they were not in the best interests of their child. They sought to have the care order dismissed and for their child to be returned to their care. The Department of Community Services and the independent children's representative opposed the application.

The legal issues before the court were whether the Family Court had the jurisdiction to intervene in the care arrangements for Alan under its parens patriae jurisdiction, and if so, whether the exceptional circumstances necessary to enliven that jurisdiction had been established. The court also had to consider whether the parents should be ordered to pay the costs of the Department of Community Services and the independent children's representative.

The court found that the Family Court does indeed have the parens patriae jurisdiction to intervene in the care arrangements for a child where it is satisfied that such intervention is in the best interests of the child. However, the court held that this jurisdiction should only be exercised in exceptional circumstances. In this case, the court was not satisfied that the exceptional circumstances necessary to enliven the jurisdiction had been established, and therefore dismissed the application. The court also found that the parents should be ordered to pay the costs of the Department of Community Services and the independent children's representative, as their application had been without merit.

In conclusion, the court dismissed the parents' application to have the care order for Alan dismissed, and found that the exceptional circumstances necessary to enliven the parens patriae jurisdiction had not been established. The parents were also ordered to pay the costs of the Department of Community Services and the independent children's representative.

Orders