Re Jennifer & Siblings - [2008] NSWSC 1317

CITATION: Re Jennifer & Siblings [2008] NSWSC 1317

HEARING DATE(S): 5 December 2008

JUDGMENT DATE :
5 December 2008

JURISDICTION: Equity

JUDGMENT OF: Hamilton J

DECISION: Proceedings dismissed.

CATCHWORDS: FAMILY LAW AND CHILD WELFARE [517] - Child welfare under state legislation - Whether Supreme Court ought exercise parens patriae jurisdiction where unappealable interim order has been made by Children’s Court.

CATEGORY: Principal judgment

CASES CITED: Re Oscar [2002] NSWSC 453
Re Victoria [2002] NSWSC 647

PARTIES: Jurek-Wladisjslaw: Kostrzewski (P)
Jaclyn Glover (D1)
Lauren Frazer (D2)
Dr Dimitra Tzioumi (D3)
Commissioner of Police NSW Police Force (D4)
Director General Department of Community Services (D5)

FILE NUMBER(S): SC 5860/08

COUNSEL: In Person (P)
No appearances (D1-3)
A L Duvall, Solicitor (D4)
A J Allen (D5)

SOLICITORS: In Person (P)
No appearances (D1-3)
A L Duvall, Solicitor (D4)
I V Knight, Crown Solicitor (D5)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

FRIDAY, 5 DECEMBER 2008

5860/08 RE JENNIFER & SIBLINGS

JUDGMENT

1 HIS HONOUR: This is a matter concerning a total of eight children of whom the plaintiff is the father. Interim orders have been made concerning all these eight children by the Children’s Court and proceedings in the Children’s Court are continuing for the purpose of that Court making final orders in the proceedings relating to the children.

2 The proceedings in this Court are brought by a summons issued at the suit of the father. The summons was originally directed to a Departmental manager of case workers, a case worker and a medical practitioner who had had some involvement with the children and also, as a fourth defendant, to the Commissioner of Police, whose officers had some involvement in the execution of search warrants relating to two of the children. I should add at this point that six of the children are currently resident with foster parents in whose care they have been placed. Two of them are currently in locations known among the parties to these proceedings only to the plaintiff.

3 I have today ordered that the Director General of the Department of Community Services (“the Director General”) be joined as a fifth defendant to the proceedings, as it is the Director General who bears responsibility for the proceedings in relation to the children rather than any of his individual officers.

4 The Commissioner of Police has been joined as a defendant because police officers were involved in the execution of search warrants issued to attempt to find the missing children, although it should be said at once that the warrants were issued at the instance of the Director General rather than at the instance of police officers.

5 The principal burden of the orders sought in the summons is for the return of the children to the father. In this regard they are, in effect, an appeal from the interim orders made by the Children’s Court. There is no statutory appeal from interim orders of the Children’s Court relating to…

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 Jennifer & Siblings

Details

AGLC: Re Jennifer and Siblings [2008] NSWSC 1317
Case: [2008] NSWSC 1317
Decision Date: 5 December 2008

CaseChat Overview and Summary

The case before the Supreme Court involved Jennifer and her siblings, who were the subject of a dispute regarding their welfare and placement. The Children's Court had previously made an interim order placing the children in the care of the Department of Family and Community Services, which was not subject to appeal. The parents of the children sought a review of this decision by the Supreme Court, invoking the court's parens patriae jurisdiction. The primary issue before the court was whether it should exercise its parens patriae jurisdiction to review the interim order made by the Children's Court, despite the order being unappealable.

In determining whether to exercise its parens patriae jurisdiction, the court considered the principles of finality and the importance of the Children's Court's role as the primary decision-maker in matters concerning children. The court recognised that the interim order was a significant decision that affected the lives of the children, and that the Children's Court had made its decision based on the specific facts and circumstances of the case. The court also considered the potential impact of exercising its jurisdiction on the stability and welfare of the children. Ultimately, the court concluded that the unappealable nature of the interim order, coupled with the importance of respecting the Children's Court's role, meant that the Supreme Court should not exercise its parens patriae jurisdiction in this matter.

The Supreme Court dismissed the application for review, affirming the Children's Court's interim order that the children remain in the care of the Department of Family and Community Services. The court emphasised the importance of maintaining the finality of decisions made by the Children's Court, particularly in cases involving the welfare of children, and highlighted the need to respect the role of the Children's Court as the primary decision-maker in such matters. This decision underscores the principle that, in the absence of exceptional circumstances, the Supreme Court will not intervene in the decisions of the Children's Court regarding the welfare of children.

Orders