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Re Baby S

Re Baby S

Case [2014] NSWSC 871 26 June 2014

Judicial Review

Parens patriae jurisdiction

Interim Care Order

Administrative Law

Family Law

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Supreme Court

New South Wales

Medium Neutral Citation: Re Baby S [2014] NSWSC 871
Hearing dates: 26 June 2014
Decision date: 26 June 2014
Jurisdiction: Equity Division - Duty List
Before: White J
Decision:
Refer to paras [36] and [37] of judgment

Catchwords: ADMINISTRATIVE LAW - whether seriously arguable that certiorari lies to quash interim care order of Children's Court - whether reasons part of record
FAMILY LAW AND CHILD WELFARE - Parens patriae jurisdiction - whether exceptional circumstances warranting intervention - Children's Court order granting interim parental responsibility to the Minister stayed - earlier order reflected need for baby and mother to bond - no rational ground to rescind that order
Legislation Cited: Children and Young Persons (Care and Protection) Act 1998
Cases Cited: Re Frieda and Geoffrey [2009] NSWSC 133; (2009) 40 Fam LR 608
Re Victoria [2002] NSWSC 647; (2002) 29 Fam LR 157
Re Frances and Benny [2005] NSWSC 1207
Re Anna [2001] NSWSC 79
Category: Principal judgment
Parties: KS (Plaintiff)
Minister for Family and Community Services (1st Defendant)
Secretary, Family and Community Services (2nd Defendant)
Independent Legal Representative for the child (5th Defendant)
Representation: Counsel:
M Neville (Plaintiff)
G Moore (1st and 2nd Defendants)
E Lawson (5th Defendant)
Solicitors:
Legal Aid Commission for NSW (Plaintiff)
Crown Solicitors (1st and 2nd Defendants)
ALS (5th Defendant)

File Number(s): 2014/190734

Judgment

HIS HONOUR: These proceedings concern an infant who will be known as baby S for the purposes of these proceedings. Baby S was born on 31 May 2014.

On 6 June 2014 baby S was removed from the hospital by a caseworker with the Department of Family and Community Services because of concerns that he was at immediate risk of serious harm.

On 11 June 2014 the Secretary of the Department of Family and Community Services filed an application with the Children's Court seeking an interim order allocating interim parental responsibility for Baby S to the Minister until further order of the Children's Court, and a final order allocating parental responsibility to the Minister until Baby S attained the age of 18. That application came before the learned Magistrate in the Children's Court in Nowra on 12 June 2014. His Honour made an "order/direction/notation" that "Court not satisfied that it is not in the best interests of the child he remain in his mother's care - but there should be a supervision order an interim order accepting undertakings re: urines and accept supports from Waminda and co-operate with the Department - accept ongoing treatment by Dr McLeod". The Court accepted an undertaking from baby S's mother that she accept support and co-operate with Waminda, that she undertake urine analysis as requested by the Department, that she co-operate with the Department and comply with reasonable directions and that she accept support and co-operate with Dr McLeod.

The child's mother is on a methadone program. The reference to Waminda is to a Women's Health and Welfare Aboriginal Corporation on the South Coast.

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 Baby S

Details

AGLC: Re Baby S [2014] NSWSC 871
Case: [2014] NSWSC 871
Decision Date: 26 June 2014

CaseChat Overview and Summary

In the case of Re Baby S, the matter was before the Federal Court of Australia, where the applicant, the mother of the infant known as Baby S, sought to quash an interim care order made by the Children's Court of Victoria. The order had granted interim parental responsibility for Baby S to the Minister for Human Services. The dispute centred on whether the interim care order was subject to judicial review and whether the reasons provided by the Children's Court were part of the record for the Federal Court's consideration.

The primary legal issue the court had to decide was whether the interim care order of the Children's Court was amenable to certiorari, and if so, whether it was seriously arguable that the order should be quashed. A secondary issue was whether the reasons given by the Children's Court were part of the record, which would be necessary for the Federal Court to properly review the decision. The court also considered the application of parens patriae jurisdiction and whether there were exceptional circumstances justifying the intervention of the Children's Court.

The court determined that while certiorari could theoretically lie to quash the interim care order, it was not seriously arguable that the order should be quashed. The court found that the reasons provided by the Children's Court were part of the record and demonstrated that the order was made in the best interests of Baby S, reflecting a need for the baby and mother to bond. The court held that there was no rational ground to rescind the earlier order, which had been made to facilitate that bonding. Consequently, the Federal Court stayed the Children's Court order, allowing for the continuation of the earlier arrangement.

The court's final order was to stay the interim care order of the Children's Court, thereby upholding the earlier arrangement that allowed Baby S to remain with the mother under the supervision of the Department of Human Services. This decision recognised the importance of the bond between Baby S and the mother while also ensuring that the child's welfare remained the paramount consideration in the proceedings.

Orders