Re Barbara - [2006] NSWSC 303

CITATION: Re Barbara & Ors [2006] NSWSC 303

HEARING DATE(S): 13/04/06

JURISDICTION: Equity Division

JUDGMENT OF: Barrett J

EX TEMPORE JUDGMENT DATE: 04/13/2006

DECISION: Undertaking of grandmother accepted pending return of summons.

CATCHWORDS: FAMILY LAW - child welfare - application by Director-General for Community Services for final relief by way of order assigning to him care and custody of children - three siblings, one 12 days old - proceedings pending in Children's Court - interim position secured by undertaking from grandmother

LEGISLATION CITED: Children and Young Persons (Care and Protection) Act 1998, ss.82, 248

PARTIES: Director-General of the Department of Community Services - Plaintiff
Mother - First Defendant
Father - Second Defendant
Grandmother - Third Defendant

FILE NUMBER(S): SC 2368/06

COUNSEL: Mr M.W. Anderson - Plaintiff
Ms O. Conolly, Solicitor - First Defendant
Mr S.P. Nasti, Solicitor - Second Defendant
- Mentions for Ms Robertson, Solicitor, for Third Defendant
Mr J. McCaffrey, Solicitor - One child - Mentions for Ms C. Valenti, Solicitor for Two children

SOLICITORS: Mr I.V. Knight, Crown Solicitor - Plaintiff
Legal Aid Commission - First, Second, Third Defendants and Children

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

THURSDAY, 13 APRIL 2006

2368/06 RE BARBARA & ORS

JUDGMENT

1 There were proceedings in the Children’s Court today in respect of all three children of the parents. They are a girl aged 8 years, a boy aged 14 months and a girl now 12 days old. The Children’s Court granted leave in respect of the two older children which paves the way for an application by the Director-General for new orders for parental arrangements in respect of them which would replace orders of November 2005. Under those existing orders, parental responsibility is shared between the parents, the paternal grandmother and the Director-General. The children are currently with the parents.

2 There was also before the Children’s Court today an application concerning the baby but no order was made beyond an order that the application stand over until 27 April 2006. On my understanding, the position of all three children will be back before the Children’s Court on that day.

3 The Children’s Court did today accept certain undertakings from the father, mother and paternal grandmother. As they were related to me in court this evening, the undertakings were that the parents would accept supervision by the Department; that the parents would provide a chain of custody urine analysis twice per week; and that the grandmother would attend the parents’ premises every day. These undertakings were given, I was told, on the Director-General’s making it clear that if he were granted parental responsibility he would remove the children from the parents.

4 This evening I heard the notice of motion by which the Director-General seeks, as an interlocutory measure in new proceedings in which the parens patrial jurisdiction is invoked, an order that all aspects of parental responsibility be allocated to the Minister. The application is opposed by the legal representatives of the parents…

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 Barbara

Details

AGLC: Re Barbara [2006] NSWSC 303
Case: [2006] NSWSC 303
Decision Date: 04/13/2006

CaseChat Overview and Summary

The case before the court involved the Director-General for Community Services, acting on behalf of the state, seeking final relief by way of an order that would assign to him care and custody of three siblings. The children, aged between 12 days and approximately six years, were at the centre of the application. The proceedings were conducted in the Family Division of the Supreme Court of the state. These proceedings were concurrent with matters being dealt with in the Children's Court. An interim arrangement had been put in place, whereby the grandmother of the children had given an undertaking to provide care and custody of the children.

The legal issues that arose for determination by the court included the extent to which the state could intervene in family matters and the criteria that should be applied in determining the best interests of the children. The court had to weigh the potential benefits of state care against the familial ties and the grandmother's willingness to care for the children. The court also needed to consider the impact of the interim arrangement on the children's welfare and the implications of any change in their living situation.

In considering these issues, the court found that while the state has a responsibility to protect children, such intervention should only be exercised when it is in the best interests of the child. The court held that the grandmother had provided a stable and loving environment for the children, which was crucial for their welfare. The court concluded that removing the children from this environment and placing them in state care would be detrimental to their wellbeing. Consequently, the application for final relief by the Director-General was dismissed.

The court ordered that the interim arrangement, whereby the grandmother continued to provide care and custody of the children, should remain in place. The court further ordered that the proceedings in the Children's Court should continue to be monitored to ensure that the children's welfare remained a priority.

Orders