Re Alan

[2008] NSWSC 379

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 jurisdiction of the Supreme Court. Nevertheless, his Honour said:

“I would think it highly inappropriate for appeals from the decisions of Magistrates in the Children’s Court to be made as a matter of course to this Court under the guise of invoking the wardship jurisdiction. When a contest concerning a child has been fought in the Children’s Court and a party is dissatisfied with the decision, an appeal should be made to the District Court under s.91 of the 1998 Act, and any application for a stay of the Magistrate’s order should be made to that court pending determination of the appeal. It would only be in the most extraordinary circumstances that this Court should be asked, in the exercise of its parens patriae jurisdiction, to set aside or to affect the decision of a Magistrate in the Children's Court.”

8 The Children and Young Persons (Care and Protection) Act, s 91 does not extend to an appeal from an interim order. In this case an interim order was made. An interim order falls within the definition of a care order in s 60. Section 69 provides that the Children's Court may make interim care orders in relation to a child or young person after a care application is made and before the application is finally determined. Section 90(1) provides that an application for the rescission or variation of a care order may be made with the leave of the Children's Court. In my opinion that power extends to an interim care order because it is included within the definition of a care order in s 60 of the Children and Young Persons (Care and Protection) Act.

9 In Director-General of the Department of Community Services v Priestly [2004] NSWSC 639, Young CJ in Eq endorsed what had a been said by Palmer J in Re Victoria.

10 In Re Liam [2005] NSWSC 75, McDougall J said at [25]:

“It is apparent from the Act that the legislature intended that the Children’s Court should be the primary court for the hearing and determination of applications under the Act, and, more generally, for applications relating to the safety, welfare and well-being of children or young persons (insofar as the Act makes provision for such applications). It is equally clear that the legislature intended that the District Court should be the primary court of review of decisions made by the Children’s Court under the Act.”

11 In Re Barbara & ors [2006] NSWSC 536, White J followed what had been said by Palmer J in Re Victoria.

12 In Re Elizabeth [2007] NSWSC 729, Palmer J considered the question which arises in this case of the appropriate course to be taken by a person dissatisfied with an interim care order. At [18] his Honour said:

“In my opinion, the fact that there is no appeal from an Interim Care Order of the Children’s Court does not, in itself, justify resort to the parens patriæ jurisdiction of this Court by a person dissatisfied with the interim order. Section 90 CYP Act provides for rescission or variation of an interim order by the Children’s Court itself if there has been a significant change of circumstances. A party aggrieved by an Interim Care Order on grounds other than change of circumstances may agitate all of the issues fully on a final hearing of the care order application. Interim Care Orders are interlocutory in character and are intended only to protect the child pending a final hearing. It would be entirely destructive of the orderly, efficient and expeditious conduct of care proceedings in the Children’s Court if appeals from Interim Care Orders were to be made routinely to this Court in its parens patriæ jurisdiction.”

13 I adopt the views expressed by the Judges in those decisions and am of the view, consistent with what their Honours' have said, that it is only in exceptional circumstances that the parens patriae jurisdiction of this court should be invoked in a situation in which parents are dissatisfied with an interim care order.

14 Ms Fraser, who appears for the parents, has indicated the basis upon which in her submission exceptional circumstances are shown. The mother’s application was filed on 8 April 2008. On 15 April 2008, the senior magistrate did not enter upon a hearing of the matter nor set it down for hearing but stood the matter over to 29 May 2008. That was unfortunate as the Children and Young Persons (Care and Protection) Act, s 94(1) states that all matters before the Children's Court are to proceed as expeditiously as possible in order to minimise the effect of the proceedings on the child or young person and his or her family and to finalise decisions concerning the long-term placement of the child or young person. Section 94(4) provides that the Children's Court should avoid the granting of adjournments to the maximum extent possible and must not grant an adjournment unless it is the opinion it is in the best interests of the child or young person to do so or there is some cogent and substantial reason to do so.

15 Ms Fraser has pointed out that 2 November 2007 was the first contact the parents had with the Department of Community Services. That was when the children were removed. Since then the Department has gathered evidence and the parents are now in a position to answer the Department’s case. Circumstances have changed. The parents now have a Department of Housing home, close to all necessary amenities.

16 Ms Fraser asserts that the children have been damaged by the separation from their parents. They are suffering different degrees of distress. They have not been placed together but are in three separate placements.

17 Contact with the children has been fraught. Initially, two hours twice a week under supervision was granted, but restrictions were subsequently placed on that contact. In Ms Fraser's submission, the parents have reacted to this. Hostility has been apparent on the part of the father and the mother has exhibited a withdrawn state. Contact has been stopped for alleged misconduct and there is no contact at present. The Department caseworkers have taken the view that there will not be a return of the children to the plaintiffs.

18 I should say that the Department has not had the opportunity to cavil with that statement of the facts and I accept them merely for the purpose of determining whether or not exceptional circumstances exist.

19 There is a problem with the order that is sought in par 1 of the summons. That is, the order for discharge of the orders of the Children’s Court. That is not the way in which this court operates under the parens patriae jurisdiction. It is not open to this court to set aside an order of the Children's Court. What it can do is to remit a matter to the Children's Court to reconsider its decision or, in extreme cases, it might issue an injunction restraining the Children's Court from exercising the judgment of the order that it has made.

20 In my view, when the matter comes back before the Children's Court on 29 May 2008, the parents will, no doubt, point out to the Court that the Supreme Court disavowed jurisdiction to deal with the matter and that should lead to an expeditious final hearing of the matter.

21 I have said that this court disavows jurisdiction in the matter because I am of the view that the circumstances that I have set out in these reasons for judgment are not sufficient to constitute exceptional circumstances and thereby to invoke the court’s parens patriae jurisdiction.

22 I dismiss the summons.

23 The second and third defendants seek an order that the plaintiffs pay their costs. I decline to do so. The circumstances were that the Children's Court of New South Wales, the first defendant, was not in a position to entertain the application on the 15 April 2008. The second defendant, the Director-General of the Department of Community Services is a body that should act and is intended to act in the interests of the children. The third defendant is the independent children’s representative. She, too, is to act in the best interests of the children. In my view the application that was brought before this court was not brought frivolously or vexatiously. It was brought in the interests of the children in attempting to secure an expeditious hearing. The second order sought was not one to supplant the jurisdiction of the Children's Court but to seek to have that Court hear and determine the matter expeditiously.

24 In the circumstances of this case, it is my view that it is in the best interests of the children that each party pay their own costs. To burden the parents with orders for costs does not advance the position of the children.

25 I make no order as to costs.

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