Re: Gabrielle and Frank - [2011] NSWSC 944

Supreme Court

New South Wales

Medium Neutral Citation: Re: Gabrielle and Frank [2011] NSWSC 944
Hearing dates: 10/08/2011
Decision date: 10 August 2011
Jurisdiction: Equity Division - Protective List
Before: McDougall J
Decision:
Application for interim care order dismissed.

Catchwords: EQUITY - parens patriae jurisdiction - matters favouring exercise of jurisdiction - whether inability to appeal the refusal of interim orders at first instance pursuant to s91 of Children and Young Persons (Care and Protection) Act 1998 (NSW) warrants exercise of jurisdiction - whether justification exists on facts for overriding first instance decision - summons dismissed.
Legislation Cited: Children and Young Persons (Care and Protection) Act 1998
Cases Cited: Re Elizabeth [2007] NSWSC 729
Re Liam [2005] NSWSC 75
Re Anna, Bruno, Courtney and Deepak [2001] NSWSC 79
Category: Principal judgment
Parties: Director-General, Department of Family and Community Services (Plaintiff)
Minister for Family and Community Services (Second Plaintiff)
The children's mother (First Defendant)
Her current partner (Second Defendant)
Representation: Counsel:
M Higgins (First and Second Plaintiffs)
M Barnett (First Defendant)
P Guterres (Independent Legal Representative)
Solicitors:
Crown Solicitor's Office (NSW) (Plaintiffs)

File Number(s): 2011/256659

Judgment

HIS HONOUR: The Director General of the Department of Family and Community Services moves urgently for orders including that a decision of the Children's Court of New South Wales made on 8 August 2011 be quashed and that the proceedings be remitted to the Children's Court for the matter to be redetermined according to law; and that, in the meantime, the children in question be placed under the interim parental responsibility of the Minister for Family and Community Services.

The children in question are known as Gabrielle and Frank. Gabrielle is currently aged six years and five months. Frank is currently aged five years and five months. The interest of the Department was enlivened on 15 July 2011. That appears to have been as a result of a communication from the father of the children's mother, who is the first defendant in these proceedings. The material before the learned Children's Court magistrate and before this court included an affidavit of the father (for clarity that is the father of the children's mother and thus the grandfather of the children; for convenience, I shall refer to him as "the grandfather"). The affidavit proved a number of things: in particular, what was said to be a series of text messages received by the grandfather from his daughter between 8.01 am on 15 July 2011 and 2.35 pm on 22 July 2011. Those of particular relevance to the Department, leading to the initiation of enquiries, were the ones of 15 July.

The grandfather said further, that he did not think that his daughter, the first defendant, was capable of providing appropriate care for the children; in particular because of her drug use.

Thereafter, on 19 July 2011, the department obtained a warrant removing the children from the care of the mother. Case workers interviewed the children at their school. On 22 July 2011, care applications were filed in…

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: Gabrielle and Frank

Details

AGLC: Re: Gabrielle and Frank [2011] NSWSC 944
Case: [2011] NSWSC 944
Decision Date: 10/08/2011

CaseChat Overview and Summary

Gabrielle and Frank were the parents of a child named Amy. The subject of this case was the refusal by the Children's Court to grant Gabrielle an interim care order for Amy. Gabrielle appealed to the Supreme Court under its parens patriae jurisdiction. The Court was required to determine whether the inability to appeal the refusal of interim orders at first instance pursuant to section 91 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) warranted exercising the jurisdiction. The Court was also required to determine if there was a justification on the facts for overriding the first instance decision. The Court found that the inability to appeal the refusal of interim orders at first instance was not a sufficient ground to exercise the parens patriae jurisdiction. The Court found that the first instance decision was based on sufficient evidence and was not manifestly unjust. The Court found that there was no justification on the facts for overriding the first instance decision. Therefore, the summons was dismissed.

Orders