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Re Barbara

Re Barbara

Case [2006] NSWSC 536 25 May 2006

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CITATION: Re Barbara & Ors [2006] NSWSC 536

HEARING DATE(S): 25/05/06

JUDGMENT DATE :
25 May 2006

JURISDICTION: Equity Division

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 05/25/2006

DECISION: 1. I dismiss the notice of motion for a stay of the orders made today in the Children's Court; 2. I order that the amended summons be dismissed; 3. I give liberty to the parties to apply to me on seven days’ notice on the question of costs.

CATCHWORDS: FAMILY LAW & CHILD WELFARE – Director-General sought interim orders in Children’s Court allocating parental responsibility for three children to Minister – Children’s Court made interim orders substantially in accordance with orders sought by Director-General – Application by children’s parents for stay of orders of Children’s Court – Whether Supreme Court should exercise its parens patriae jurisdiction to grant stay of orders of Children’s Court – Parens patriae jurisdiction used in exceptional circumstances – Whether circumstances exceptional – Application dismissed.

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

CASES CITED: Re Barbara & Ors [2006] NSWSC 303
Re Victoria v Director General of the Department of Community Services and the Children’s Court [2002] NSWSC 647
Re Frances & Benny [2005] NSWSC 1207
Director-General of the Department of Community Services v Priestley [2004] NSWSC 639

PARTIES: Re Barbara & Ors

FILE NUMBER(S): SC 2368/06

COUNSEL: Plaintiff: M W Anderson
1st Defendant: I Bourke
2nd Defendant: S Gardiner
3rd Defendant: M Cleary
Two Children: P Braine
Mention for J McCaffrey - solicitor for one child

SOLICITORS: Plaintiff: I V Knight - Crown Solicitor
Defendants: Legal Aid Commission

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

WHITE J

Thursday, 25 May 2006

2368/06 Re Barbara & Ors

JUDGMENT

1 HIS HONOUR: These proceedings were before the Court on 13 April and 23 April 2006. They concern interim orders made today in the Children's Court for the allocation of parental responsibility for three children aged 8, 15 months and about 8 weeks.

2 Proceedings had earlier been brought by the Director-General of the Department of Community Services in 2005 in which orders were sought that parental responsibility for the two elder children should be allocated to the Minister for Community Services.

3 On 10 November 2005, orders were made in the Children's Court allocating parental responsibility for the children to the Minister for a period of 12 months, but providing for parental responsibility for the children's residence to be shared between the Minister and the children's paternal grandmother, and providing that all other aspects of parental responsibility were to be exercised jointly by the children's parents, the Minister, and their paternal grandmother.

4 Pursuant to s 73 of the Children and Young Persons (Care and Protection) Act 1998 (NSW), the Court accepted undertakings from the parents that, amongst other things, they would “engage with (sic) and complete a residential drug and alcohol rehabilitation program and would provide a chain of custody urine samples for…

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 536
Case: [2006] NSWSC 536
Decision Date: 25 May 2006

CaseChat Overview and Summary

The case of Re Barbara involved an application by the Director-General to the Children's Court for interim orders that would allocate parental responsibility for three children to the Minister for Communities and Justice. The parents of the children opposed these orders and sought a stay from the Supreme Court. The legal issues at the heart of the case were whether the Supreme Court had the jurisdiction to grant a stay of the Children's Court's orders and if the circumstances of the case were exceptional enough to warrant such intervention.

The Supreme Court examined the nature of the parens patriae jurisdiction and its application in this context. It noted that this jurisdiction is exercised in exceptional circumstances to protect the welfare of children. The Court found that while the parents had a right to challenge the Children's Court's orders, the Supreme Court should only intervene if the circumstances were truly exceptional. Given the evidence presented, the Court concluded that the situation did not meet the threshold for exceptional intervention. The reasoning was based on the welfare of the children and the appropriateness of the Children's Court's orders.

Consequently, the application by the parents for a stay of the Children's Court's orders was dismissed. The Supreme Court held that it would not exercise its parens patriae jurisdiction to interfere with the orders made by the Children's Court, which had been made in the best interests of the children. The decision underscored the importance of the Children's Court's primary role in matters concerning child welfare and the limited circumstances under which higher courts may intervene.

Orders