Re Jayden - [2006] NSWSC 1428

CITATION: Re Jayden [2006] NSWSC 1428

HEARING DATE(S): 18 December 2006

JUDGMENT DATE :
21 December 2006

JUDGMENT OF: Simpson J

DECISION: Summons and notice of motion dismissed.

CATCHWORDS: proceedings in Children's Court of New South Wales - review of orders made in Children's Court - whether Children's Court lacked jurisdiction - legal practitioners involved in Children's Court proceedings named as parties to proceedings in this Court - distinction between role of legal representative and role of party to proceedings - care order - care application - care proceedings - interim order allocating parental responsibility - abuse of process - ulterior purpose of removing children from this jurisdiction to return them to New Zealand not found

LEGISLATION CITED: Children and Young Persons (Care and Protection ) Act 1998 (NSW) Chapter 5, s44(1), s60, s61(2), s62, s69, s70A, s71, s72(1), s76(1), s79, s86, s99

CASES CITED: George v Children's Court of New South Wales [2003] NSWCA 389; 59 NSWLR 232
Grace and Rita [2002] NSWSC 1
Re James [2001] NSWSC 1178

PARTIES: mother of children the subject of proceedings - Plaintiff
Children's Court of New South Wales - 1st Defendant
Minister of Community Services - 2nd Defendant
Director-General, Department of Community Services - 3rd Defendant
Kim Rowley - 4th Defendant
Ross Clarke - 5th Defendant

FILE NUMBER(S): SC 16157/06

COUNSEL: MW Anderson - Plaintiff
GW Moore - 2nd & 3rd Defendants
M Falloon - 4th Defendant
R Harper - 5th Defendant

SOLICITORS: SE O'Connor - Plaintiff
IV Knight - 2nd & 3rd Defendants
Kim Rowley - 4th Defendant
Ross Clarke & Associates - 5th Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DUTY JUDGE LIST

SIMPSON J

Thursday 21 December 2006

16157/06 Re JAYDEN
JUDGMENT

1 HER HONOUR: These proceedings, commenced by summons filed on 14 December 2006, concern the guardianship (to use, I hope, a neutral term) of two children, who are to be referred to as “Jayden” and “Lee”, although those are not their real given names. Orders with respect to each child have been made in the Children’s Court of NSW.

2 Five defendants were named in the summons. They are:

1. the Children’s Court of New South Wales;
2. the Minister of Community Services;
3. the Director-General, Department of Community Services;
4. Kim Rowley;
5. Ross Clarke.

3 The substantive orders sought in the summons are:

“1. A declaration that the proceedings in the Children’s Court of New South Wales … and heard at Parramatta Children’s Court, concerning the children [Jayden] (born 7/12/1995) and [Lee] (born 7/9/1998) are an abuse of process and ought be dismissed.

2. A declaration that the first defendant constituted by Mr S Mitchell, Senior Children’s Magistrate, lacked jurisdiction to make an order in relation to the plaintiff’s children, and ought to have made an order dismissing the proceedings.

3. An order quashing the order of the first defendant of 8 December…

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 Jayden

Details

AGLC: Re Jayden [2006] NSWSC 1428
Case: [2006] NSWSC 1428
Decision Date: 21 December 2006

CaseChat Overview and Summary

The proceedings before the court were an application by the Legal Aid Commission of New South Wales to review orders made by the Children's Court of New South Wales in relation to a care application concerning a child named Jayden. The application was made on behalf of Jayden's father, who was seeking to have the court's orders set aside on various grounds. The court had to determine whether the Children's Court had jurisdiction to make the orders, whether the legal practitioners involved in the Children's Court proceedings were properly named as parties to the review proceedings, and whether the orders made by the Children's Court were based on an ulterior purpose of removing the children from Australia to return them to New Zealand.

The court found that the Children's Court did have jurisdiction to make the orders, and that the legal practitioners were not properly named as parties to the review proceedings. The court held that the role of a legal representative in Children's Court proceedings was distinct from that of a party to the proceedings, and that the legal practitioners were not parties to the proceedings for the purposes of the review application. The court also found that there was no evidence to support the claim that the orders were based on an ulterior purpose of removing the children from Australia.

The court dismissed the review application, and confirmed the orders made by the Children's Court. The court held that the Children's Court had exercised its jurisdiction properly, and that the orders made were in the best interests of the child. The court found that there was no abuse of process, and that the legal practitioners had acted appropriately in the Children's Court proceedings. The court also held that the interim order allocating parental responsibility was appropriate, and that it was in the best interests of the child to remain in Australia.

Orders