Re Greta (No. 2) - [2012] NSWSC 856

Supreme Court

New South Wales

Medium Neutral Citation: Re Greta (No. 2) [2012] NSWSC 856
Hearing dates: 17 July 2012
Decision date: 31 July 2012
Jurisdiction: Equity Division - Protective List
Before: White J
Decision:
Order that the balance of the claims for relief in the summons be dismissed.

Catchwords:
ADMINISTRATIVE LAW - decision - natural justice - procedural fairness - whether declaratory relief appropriate - whether principles applicable to decision of Director-General for removal of children pursuant to s 43 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) - whether hearing required prior to decision being made - urgency of situation as constraint on opportunity for a hearing - plaintiff provided with opportunity to remedy situation prior to children being removed - held no denial of procedural fairness

FAMILY LAW AND CHILD WELFARE - lawfulness of removal of children pursuant to s 43 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) - satisfaction that on reasonable grounds children were at immediate risk of serious harm - whether making of an apprehended violence order would have been sufficient to protect children - no protective ally identified to enforce apprehended violence order - non-compliance with previous orders a legitimate matter to take into account when assessing the imminence of the risk of harm - held not irrational for caseworker to consider children at immediate risk of serious harm
PRACTICE AND PROCEDURE - parens patriae jurisdiction - interference with Children's Court proceedings only in exceptional circumstances - whether extraordinary circumstances exist - regardless no evidence adduced to satisfy the Court that best interest of the children to be immediately restored to care of plaintiff - no evidence of plaintiffs current circumstances
Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW)
Cases Cited: Re Greta [2012] NSWSC 294
Neeta (Epping) Pty Limited v Phillips [1974] HCA 18; (1974) 131 CLR 286
Minister for Immigration and Ethnic Affairs v Ozmanian (1996) 71 FCR 1
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Re Georgia and Luke (No. 2) [2008] NSWSC 1387
Marine Hull and Liability Insurance Co. Ltd v Hurford (1985) 10 FCR 234
Category: Principal judgment
Parties: Mother (Plaintiff)
Director-General of Department of Human Services (1st Defendant)
Minister for Family and Community Services (2nd Defendant)
Children's Court at Campbelltown (3rd Defendant)
Father (4th Defendant)
Children (5th Defendants)
Representation: Counsel:
P Glissan (Plaintiff)
D Ward (1st and 2nd Defendants)
P Braine (5th Defendants)
Solicitors:
Crown Solicitor (1st & 2nd Defendants)
Rowley Associates (5th Defendants)

File Number(s): 2012/17168

Judgment

HIS HONOUR: These proceedings concern three children aged seven, six and two. For the purposes of these proceedings they have been given the names Greta, Isabella and Jack. The plaintiff is the children's mother. On 16 December 2010 final orders were made by the Children's Court in respect of the children. Sole parental responsibility was given to the Minister of Community Services for six months. After six months, joint parental responsibility…

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 856
Decision Date: 31 July 2012

CaseChat Overview and Summary

The case of Re Greta (No. 2) involves the parents of three children, the plaintiff and defendant, and the Director-General of the Department of Community Services. The dispute arose over the removal of the children from the parents' care under section 43 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). The parents sought a declaration that the decision to remove the children was unlawful and a declaration that the children should be returned to their care. The proceedings took place in the Supreme Court of New South Wales.

The primary legal issues that the court had to address were whether the decision to remove the children was procedurally fair and whether it was irrational given the circumstances. Specifically, the court needed to determine if the Director-General's decision adhered to the principles of natural justice and procedural fairness, and whether the removal was justified under the statutory provisions given the risk of serious harm to the children.

The court found that the Director-General had acted within the bounds of procedural fairness by providing the plaintiff with an opportunity to remedy the situation before the decision to remove the children was made. The urgency of the situation was acknowledged as a constraint on the opportunity for a hearing. The court also concluded that the Director-General was not irrational in determining that the children were at immediate risk of serious harm, given the non-compliance with previous orders and the absence of a protective ally to enforce an apprehended violence order. Therefore, the court dismissed the application for declaratory relief and found that there were no extraordinary circumstances to warrant interfering with the Children's Court proceedings.

Orders