Legal Research
Cases
Re Benji and Perry

Re Benji and Perry

Case [2018] NSWSC 1750 14 November 2018

parens patriae jurisdiction

Risk of Harm

Probability of Harm

Family Law

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: Re Benji and Perry [2018] NSWSC 1750
Hearing dates: 18 October 2018
Date of orders: 18 October 2018
Decision date: 14 November 2018
Jurisdiction: Equity
Before: McDougall J
Decision:
Summons dismissed. No order as to costs.

Catchwords: CHILDREN – parens patriae jurisdiction – application in effect to prevent implementation of orders made by the Children’s Court – where Children’s Court ordered that children the subject of the application be returned to their carers – where Department contends that this would pose an unacceptable risk of harm – whether there is an unacceptable risk of harm – necessary to balance possibility of harm if children are returned with probability of harm if they are not – application dismissed.
Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW)
Evidence Act 1995 (NSW)
Family Law Act 1975 (Cth)
Supreme Court Act 1970 (NSW)
Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336
Coulton v Holcombe (1986) 162 CLR 1
Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34
Johnson v Page [2007] FamCA 1235
M v M (1988) 166 CLR 69
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Re Benji and Perry [2018] NSWSC 1594
Re Frances and Benny [2005] NSWSC 1207
Re Liam (2005) 33 Fam LR 86
Re M (No 4) [2013] NSWCA 97
Re Tanya [2016] NSWSC 794
Rolleston v Insurance Australia [2017] NSWCA 168
Wesiak v D&R Constructions (Aust) Pty Ltd [2016] NSWCA 353
Category: Principal judgment
Parties: Secretary of the NSW Department of Family and Community Services (Plaintiff)
The Children’s Court of New South Wales (First Defendant)
Mr and Mrs Thompson (Second Defendants)
Representation:
Counsel:
M Anderson (Plaintiff)
Solicitors:
NSW Crown Solicitors (Plaintiff)
J David (Second Defendants)
A Mowbray (Mother)
B Smith (Direct Legal Representative for Perry)
S Luke (Independent Legal Representative for Benji)

File Number(s): 2018/316182

Judgment

HIS HONOUR: The plaintiff (the Secretary) sought orders from this Court in respect of two children who will be known by the pseudonyms Benji and Perry. The practical effect of the orders sought would have been be to prevent the implementation of orders made on 16 October 2018 by the Children’s Court of New South Wales. The Secretary invoked this Court’s inherent jurisdiction commonly referred to as the parens patriae jurisdiction.
The effect of the orders made by the Children’s Court was that Perry’s adoptive parents, the second defendants (who will be known by the pseudonym Mr and Mrs Thompson), would have parental responsibility for and the care of Perry, and the care of Benji. The Secretary said that those orders ought not be implemented, because the implementation would expose those children to an unacceptable risk of sexual abuse.
The matter first came before me in the Duty List on 16 October 2018. On that day, I ordered that parental responsibility for Benji and Perry remain with the Minister until 18 October 2018, when the Secretary’s application could be heard…

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 Benji and Perry

Details

AGLC: Re Benji and Perry [2018] NSWSC 1750
Case: [2018] NSWSC 1750
Decision Date: 14 November 2018

CaseChat Overview and Summary

The case of Re Benji and Perry involved an application made to prevent the implementation of orders made by the Children’s Court. The Children’s Court had ordered that the children in question be returned to their carers. The Department of Family and Community Services argued that returning the children to their carers would pose an unacceptable risk of harm. The court was tasked with determining whether there was indeed an unacceptable risk of harm and, if so, what the appropriate course of action should be.

The primary legal issue before the court was whether there was sufficient evidence to support the contention that returning the children to their carers would result in an unacceptable risk of harm. The court had to weigh the possibility of harm if the children were returned against the probability of harm if they were not. This required a careful assessment of the evidence presented by the Department and the arguments made by the carers.

The court concluded that the Department had not provided sufficient evidence to establish that there was an unacceptable risk of harm if the children were returned to their carers. The court emphasised the need to balance the potential risks to the children in both scenarios. Given the lack of compelling evidence, the application was dismissed. Consequently, the orders made by the Children’s Court to return the children to their carers would proceed as directed.

Orders