Re Emma

Case [2023] NSWSC 1088 8 September 2023

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Supreme Court

New South Wales

Medium Neutral Citation: Re Emma [2023] NSWSC 1088
Hearing dates: 18 August 2023
Date of orders: 18 August 2023
Decision date: 08 September 2023
Jurisdiction: Equity - Duty List
Before: Robb J
Decision:
See [84]

Catchwords:
CHILD WELFARE — jurisdiction — Supreme Court of New South Wales — parens patriae – whether parens patriae jurisdiction is sufficiently extensive to enable this Court to make orders directed at NSW Police Force for the retrieval of a young person, or whether proceedings are required to be commenced in a local court pursuant to the Family Law Act 1975 (Cth) and transferred to this Court — held that the parens patriae jurisdiction is sufficiently broad to enable this Court to make orders for the retrieval of a young person the subject of parens patriae orders without the initiation and transfer of local court proceedings

Legislation Cited:
Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 245B, 245E
Court Suppression and Non-publication Orders Act 2010 (NSW)
Family Law Act 1975 (Cth), ss 46(3A)(c), 67Q, 67T, 67U
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 4(1)
Police Act 1990 (NSW), ss 6(2)(a), 6(3)(b)

Cases Cited:
AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Application of a Local Health District; Re a Patient Fay [2016] NSWSC 624
Director-General, Department of Community Services; Re Jules [2008] NSWSC 1193; (2008) 40 Fam LR 122
Re Kara [2020] NSWSC 1083
Re Neil (No 5) (2022) 110 NSWLR 197; [2022] NSWSC 1704
Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218; [1992] HCA 15
Vaughan v Vaughan (Supreme Court (NSW), Powell J, 27 February 1979, unrep)

Category: Principal judgment
Parties: Secretary, Department of Communities and Justice (First Plaintiff)
Minister for Families and Communities (Second Plaintiff)
Representation:
Counsel:
A Tembe (Plaintiffs)
Solicitors:
Crown Solicitor’s Office (Plaintiffs)
D Neligan (Solicitor, Independent Legal Representative)

File Number(s): 2023/263648
Publication restriction: The orders made prohibit the publication or disclosure of information that would identify, or tend to identify, the young person in these proceedings known as “Emma” until 19 July 2032, save for certain excluded purposes.

JUDGMENT

On 18 August 2023, I gave leave to the Secretary, Department of Communities and Justice, and the Minister for Families and Communities, as plaintiffs, to commence these proceedings in the Duty List of the Equity Division of this Court.
The application concerned a 16-year-old girl who has been given the pseudonym “Emma” for the purposes of these proceedings.
The application was held in closed Court and orders were made under the Court Suppression and Non-publication Orders Act 2010 (NSW) prohibiting the publication or disclosure of information that would identify or tend to identify Emma until 19 July 2032, save for certain excluded purposes.
On the application of the plaintiffs, I made what are commonly called secure accommodation orders in respect of Emma, as follows:

10. That, pending further order, leave be granted to the Secretary, Department of Communities and…

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 Emma

Details

AGLC: Re Emma [2023] NSWSC 1088
Case: [2023] NSWSC 1088
Decision Date: 08 September 2023

CaseChat Overview and Summary

In the matter of Emma, the Supreme Court of New South Wales was tasked with determining the appropriate jurisdiction to make orders for the retrieval of a young person under its parens patriae jurisdiction. The dispute centred around whether the court had the authority to issue such orders directly to the New South Wales Police Force or if it was necessary to initiate proceedings in a local court under the Family Law Act 1975 (Cth) and subsequently transfer them to the Supreme Court.

The primary legal issue was whether the Supreme Court's parens patriae jurisdiction was sufficiently extensive to allow it to make orders for the retrieval of the young person without the need for local court proceedings. This required the court to consider the scope and limits of its inherent jurisdiction in matters concerning the welfare of children.

The court determined that the parens patriae jurisdiction was indeed sufficiently broad to enable it to issue orders for the retrieval of a young person, even if this involved directing the New South Wales Police Force to act. The court held that this could be done without the need to initiate proceedings in a local court and transfer them to the Supreme Court. This decision was based on the principle that the court's inherent jurisdiction in matters of child welfare is expansive enough to cover such situations.

Orders