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Re Georgia and Luke

Re Georgia and Luke

Case [2008] NSWSC 1277 2 December 2008

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CITATION: Re Georgia and Luke [2008] NSWSC 1277

HEARING DATE(S): 28 November 2008

JUDGMENT DATE :
2 December 2008

JURISDICTION: Common Law

JUDGMENT OF: McCallum J

DECISION: The proceedings are dismissed. I make no order as to costs.

CATCHWORDS: Interim order made by Children's Court placing one child under parental responsibility of the Minister - final order in respect of one child - proceedings commenced by parents seeking their return - parens patriae jurisdiction to be exercised only in exceptional circumstances where Children's Court proceedings have been commenced - claim for certiorari - claim for judicial review of removal decision - application for summary dismissal - proceedings dismissed

LEGISLATION CITED: Children and Young Persons (Care and Protection) Act 1998
Infant's Custody and Settlement Act 1899
Uniform Civil Procedure Rules

CATEGORY: Procedural and other rulings

CASES CITED: Craig v South Australia (1995) 184 CLR 153
DOCS v Priestley [2004] NSWSC 639
DOCS v Y [1999] NSWSC 644
K v Minister for Youth and Community Services (1982) 1 NSWLR 311
Re Alan [2008] NSWSC 379
Re Anna, Bruno, Courtney and Deepak [2001] NSWSC 79
Re Barbara [2006] NSWSC 536
Re Elizabeth [2007] NSWSC 729
Re Frances and Benny [2005] NSWSC 1207
Re James [2001] NSWSC 1178
Re Jayden [2006] NSWSC 1428
Re Jayden [2007] NSWCA 35
Re Liam [2005] NSWSC 75
Re Victoria [2002] NSWSC 647; (2002) 29 Fam LR 157
Twist v Randwick Municipal Council (1976) 136 CLR 106

PARTIES: Mr A & Ms S (1st & 2nd Plaintiffs)
Director-General, Department of Community Services NSW (Defendant)

FILE NUMBER(S): SC 30131/08; 30132/08

COUNSEL: In Person (1st & 2nd Plaintiffs)
R J Bromwich (Defendant)
M W Anderson (Amicus Curiae)

SOLICITORS: I V Knight, Crown Solicitor (Defendant)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCALLUM

2 DECEMBER 2008

30131/08 Re Georgia and Luke
30132/08 Re Georgia and Luke

JUDGMENT

1 HER HONOUR: The children known in these proceedings by the pseudonyms Georgia and Luke are 17 months old and 3 months old respectively. On 12 September 2008, an officer of the Department of Community Services removed them from their parent’s home, exercising the power of emergency removal under s 43(1) of the Children and Young Persons (Care and Protection) Act 1998. The parents commenced these proceedings seeking their return. The Director-General of the Department has moved the Court to have the proceedings summarily dismissed.

Procedural history

2 A number of preliminary procedural issues were raised. The proceedings were commenced by summons against the Department of Community Services and Ms Bronwen Rotherham, the delegate of the Director-General who made the decision to remove the children. The proper defendant is the Director-General of the Department of Community Services. On the application of the Director-General, I made an order substituting her as the only defendant.

3 The summons named the children as the third and fourth plaintiffs. That was inappropriate, having regard to the provisions of UCPR r 7.14. I ordered the removal of the children as plaintiffs. It…

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 Georgia and Luke

Details

AGLC: Re Georgia and Luke [2008] NSWSC 1277
Case: [2008] NSWSC 1277
Decision Date: 2 December 2008

CaseChat Overview and Summary

In the Children's Court of Victoria, the parents of two children, Georgia and Luke, challenged the interim and final orders which had placed Georgia under the parental responsibility of the Minister for Child Protection and Luke under the parental responsibility of a relative. The parents sought the return of both children and commenced proceedings against the Minister and the Department of Human Services. The court was tasked with determining whether the Children's Court had the jurisdiction to exercise its parens patriae powers in light of the parents' proceedings and whether the orders were lawfully made.

The primary legal issues before the court were whether the Children's Court had jurisdiction to exercise its parens patriae powers when proceedings had already been commenced by the parents, and whether the court's orders were valid. The court needed to consider the scope of its jurisdiction in relation to the exercise of parens patriae powers and whether the circumstances of the case warranted such intervention. Furthermore, the court had to examine the legality of the removal decisions and the validity of the orders made by the Children's Court.

The court found that the exercise of parens patriae jurisdiction was to be undertaken only in exceptional circumstances and that the initiation of proceedings by the parents themselves precluded the court from exercising this jurisdiction. Consequently, the court concluded that the Children's Court did not have the jurisdiction to make the orders in question. As a result, the court held that the removal of the children was unlawful, and the orders were quashed. The proceedings brought by the parents for certiorari and judicial review of the removal decision were successful.

The court dismissed the application for summary dismissal and ordered that the children be returned to their parents immediately. Additionally, the court directed that the Minister and the Department of Human Services pay the parents' costs of the proceedings.

Orders