Re Benji and Perry - [2018] NSWSC 1594

Supreme Court

New South Wales

Medium Neutral Citation: Re Benji and Perry [2018] NSWSC 1594
Hearing dates: 18/10/2018
Date of orders: 18 October 2018
Decision date: 18 October 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 – necessary for a court exercising supervisory or prerogative jurisdiction to confine itself to its powers and not engage in merits review – where judgment of the Children’s Court appears logical and analytical on its face – no reviewable error disclosed – application dismissed – more detailed reasons to follow.
Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW)
Cases Cited: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Briginshaw v Briginshaw (1938) 60 CLR 336
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Director-General of the Department of Community Services v Priestley [2004] NSWSC 639
Category: Procedural and other rulings
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 (ex tempore – revised 19 october 2018)

HIS HONOUR: I have come to the conclusion that the application in this matter should be dismissed. Both because of the hour and because of the volume of material, including decided cases, that has been put before me on short notice, I propose to give brief reasons now and to deliver more detailed reasons when time permits.
The application before the Court is in effect, although not in law, one to prevent the implementation of orders made on 16 October 2018 by the Children's Court of New South Wales. The application involves what is often called the parens patriae jurisdiction.
The subject of the application are two boys, aged 13 and ten. They will be known by the pseudonyms of "Perry" and "Benji" respectively. Perry has been in the care of the second defendants, who will be known by the pseudonyms "Mr and Mrs Thompson", for many years and indeed, three years ago, this Court made orders for them to adopt him.
Benji is the biological child of a mother who will be known by the pseudonym "Ms Lane". He has been in the care of Mr and Mrs Thompson for almost all his life. He and Perry regard each other as brothers.
There is a third child involved, although the orders of the Children's Court do not affect her. She will be known by the pseudonym "Alexa". She is…

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 1594
Case: [2018] NSWSC 1594
Decision Date: 18 October 2018

CaseChat Overview and Summary

In the matter of Re Benji and Perry, the application was brought before the court to prevent the implementation of orders made by the Children’s Court, which directed that the children in question be returned to their carers. The Department intervened, arguing that returning the children to their carers would present an unacceptable risk of harm to the children. The court was tasked with determining whether the application to prevent the execution of the Children’s Court orders was appropriate, considering the Department's concerns and the Children's Court's reasoning.

The legal issues that the court had to address included whether it was appropriate for a court exercising supervisory or prerogative jurisdiction to engage in a merits review of the Children’s Court’s decision, and whether the Department had demonstrated that the Children's Court's orders contained a reviewable error. The court also needed to consider the principles of parens patriae jurisdiction and whether the Children's Court had adequately exercised its powers in reaching its decision.

Upon examining the Children’s Court’s decision, the court found that it appeared logical and analytical, and there was no indication of a reviewable error. The court emphasised the importance of confining itself to its jurisdictional powers and not substituting its judgment for that of the Children's Court. Consequently, the application to prevent the implementation of the Children’s Court orders was dismissed. The court's detailed reasons for its decision would be provided in a subsequent document.

Orders