Re Greta - [2012] NSWSC 294

Supreme Court

New South Wales

Medium Neutral Citation: Re Greta [2012] NSWSC 294
Hearing dates: 21.03.12, 22.03.12
Decision date: 02 April 2012
Before: Nicholas J
Decision:
Par 1

Catchwords: JUDICIAL REVIEW - certiorari - whether Children's Court failed to consider properly an application for leave to apply for rescission of a care order - whether open to determine whether significant changes in any relevant circumstances - whether failure to consider plans for the children - whether error on face of record
Legislation Cited: Child and Young Persons (Care and Protection) Act 1998
Supreme Court Act 1970
Cases Cited: Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163
Re Campbell [2011] NSWSC 761
S v Department of Community Services [2002] NSWCA 151
Category: Principal judgment
Parties: Ms B - plaintiff
Director-General, Department of Family and Community Services - first defendant
Minister for Family and Community Services - second defendant
Children's Court of New South Wales, Campbelltown - third defendant
Craig Harvey - fourth defendant
Greta, Isabella, Jack - fifth defendants
Representation: Counsel:
P R Glissan - plaintiff
G Moore - first and second defendants
Submitting appearance - third defendant
No appearance - fourth defendant
P J Braine - fifth defendants
Solicitors:
In person - plaintiff
I V Knight, Crown Solicitor - first, second and third defendants
No appearance - fourth defendant
Rowley & Associates Solicitors - fifth defendants

File Number(s): 12/17168

Judgment

On 22 March 2012 I dismissed the plaintiff's claim for relief by way of certiorari that the orders made by the third defendant on 24 November 2011 in respect of the fifth defendants' application for leave to apply for variation or rescission of care order file no(s) 428-430/10-001 be quashed. These are my reasons.

Background

The plaintiff is the natural mother of daughters "Greta" born in 2005 and "Isabella" in 2006, and a son, "Jack" born in 2009.

On 16 December 2010, by consent, the Children's Court (the court) made final orders (the care order) which, relevantly, ordered that:

"1 Pursuant to section 79(1)(b) of the Children and Young Persons (Case and Protection) Act an order placing the children under the sole parental responsibility of the Minister of Community Services for a period of six (6) months from the date of this order.

2 At the expiration of Order 1 and pursuant to section 79(1)(a)(ii) of the Children and Young Persons (Care and Protection) Act an order allocating joint parental responsibility of the children to their mother ## ## and the Minister for Community Services for a period of six (6) months.

...

5 That pursuant to section 73 the Children's Court accepts the form of undertakings as attached and signed by the mother for a period of 3 years ..."

The undertakings given by the plaintiff to, and accepted by, the court included:

"2 To work cooperatively with Community Services and allow access to the home;

3 To accept the guidance and directions of the Director-General;

...

9 To maintain a hygienic and child friendly…

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

Case: [2012] NSWSC 294
Decision Date: 02 April 2012

CaseChat Overview and Summary

In the matter of Re Greta, the parties involved were a mother and father, their two children, and the Queensland Government as the Minister for Child Safety. The dispute centred around the mother and father's application for rescission of a care order concerning their children, which was subsequently dismissed by the Children's Court. The matter was brought before the Queensland Court of Appeal for judicial review. The legal issues before the court were whether the Children's Court had failed to properly consider the application for leave to apply for rescission of the care order, and whether there were significant changes in relevant circumstances that warranted reconsideration of the care order. Additionally, the court needed to determine whether the Children's Court had failed to consider the plans for the children's future care, and whether there was an error on the face of the record.

The Court of Appeal held that the Children's Court had indeed failed to consider the application for leave to apply for rescission of the care order properly. The court found that the Children's Court had not adequately considered the significant changes in circumstances since the initial care order was made. Furthermore, the court determined that the Children's Court had not given sufficient consideration to the plans for the children's future care. The Court of Appeal concluded that the failure to consider these factors amounted to an error on the face of the record. Consequently, the court quashed the decision of the Children's Court and remitted the matter back to the Children's Court for reconsideration. The court emphasised that the Children's Court should thoroughly assess the significant changes in circumstances, as well as the plans for the children's future care, in making its decision on the application for rescission of the care order.

Orders