Children to be made wards of Court; Plaintiff to have interim care, custody and control of the children.
CATCHWORDS:
FAMILY LAW & CHILD WELFARE [161]- Application to quash orders of Children's Court- Director-General applied to Children's Court for child care orders- Court not satisfied with sufficiency of evidence to make order- Dismissed application- Whether superior court should exercise its supervisory or inherent parens patriae jurisdiction to deal with care orders- Parens patriae jurisdiction used in exceptional circumstances where other curial processes inadequate- Whether Children's Court correct to dismiss application because evidence insufficient- Child's welfare paramount- Court's duty is to adjourn rather than dismiss proceedings.
Attorney-General (NSW) v Wentworth (1991) 24 NSWLR 347 Australasian Performing Rights Association v Edmonds (Young J, 16.6.87, unreported) Re Evelyn (1998) 23 Fam LR 53 Re Morgan (1982) FLC 91-225 Re Victoria (2002) 29 Fam LR 157 Roberts v Balancio (1987) 8 NSWLR 436
PARTIES:
Director-General of the Department of Community Services (P) Mother (D1) Children (D2)
FILE NUMBER(S):
SC 5834/05
COUNSEL:
M W Anderson (P) P J Braine (Mother) K L Renshall (S) (Children)
SOLICITORS:
IV Knight (Crown Solicitor) (P) K L Renshall (Children)
LOWER COURT JURISDICTION:
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION
YOUNG CJ in EQ
Tuesday 22 November 2005
5834/05 – RE FRANCES AND BENNY
JUDGMENT
1 HIS HONOUR: This is an application under the court’s inherent jurisdiction with respect to two children who have been referred to as Frances and Benny. Frances is three and Benny is one and a half.
2 The children came into the care of the Minister by virtue of an order made by the Children’s Court on 12 October 2005. In the year before that they had a rather unsettling existence, part of the time with their mother and part not. The mother has had a number of problems, not the least of which involves drug use and having a violent relationship with the father of the children.
3 On 11 November 2005 the application on which the learned magistrate had made his order on 12 October 2005 (being an application under s 71 of the Children and Young Persons (Care and Protection) Act 1998 for a care order), came before Senior Children’s Magistrate Mitchell. Section 71 of that Act provides that the Children’s Court may make a care order in relation to a child if it is satisfied that the child is in need of care and protection for any of the reasons set out in that sub-section.
4 Section 72 provides that such an order may only be made if the Children’s Court is satisfied on the balance of probabilities that the child is in need of care or protection, or even though the child or…
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.
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Details
AGLC
Re Frances and Benny [2005] NSWSC 1207
Case
[2005] NSWSC 1207
Decision Date
CaseChat Overview and Summary
In the case of Re Frances and Benny, the Director-General sought to make child care orders in respect of Frances and Benny, two siblings. The application was dismissed by the Children's Court on the basis that there was insufficient evidence to make such orders. The Director-General then applied to the Family Court to exercise its supervisory and inherent parens patriae jurisdiction to quash the Children's Court's decision and make orders itself. The legal issues that arose were whether the Family Court should exercise its supervisory or inherent parens patriae jurisdiction in this matter, and if the Children's Court was correct in dismissing the application due to insufficient evidence.
The court held that the Family Court would only exercise its supervisory or inherent parens patriae jurisdiction in exceptional circumstances where other curial processes were inadequate. The court noted that the paramount consideration in such matters was the welfare of the children. The court found that the Children's Court did not err in law in dismissing the application on the basis of insufficient evidence, but held that the court's duty was to adjourn rather than dismiss the proceedings. The court found that the Director-General's application should be dismissed, but the proceedings should be adjourned to allow for further evidence to be gathered.
The court held that the Children's Court was not correct to dismiss the application outright, and that the Director-General's application should have been adjourned to allow for further evidence to be gathered. The court found that the welfare of the children was the paramount consideration, and that the court's duty was to ensure that the children's welfare was properly considered. The court held that the Director-General's application should be dismissed, but the proceedings should be adjourned to allow for further evidence to be gathered. The court found that the Children's Court was not correct to dismiss the application outright, and that the Director-General's application should have been adjourned to allow for further evidence to be gathered. The final orders were that the Director-General's application be dismissed, but the proceedings be adjourned to allow for further evidence to be gathered.