Re Jules

Case [2008] NSWSC 1193 2 September 2008

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CITATION: Director-General, Department of Community Services; Re Jules [2008] NSWSC 1193

HEARING DATE(S): 2 & 15 September 2008

JURISDICTION: Equity Division
Duty List

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 2 September 2008

DECISION: The Court has the statutory equivalent of its former inherent parens patriae jurisdiction in respect of all children, by operation of Family Law Act and Cross-Vesting Act. A medical treatment order is in substance a request and consent, in place of a parent’s, for treatment of a child. Although some steps can be taken in the parens patriae jurisdiction without making the child a ward of the Court, such a medical treatment order is founded on an assumption from the parent of part of at least some aspect of parental responsibility. Interim wardship order and parental responsibility orders discharged. Summons dismissed.

CATCHWORDS: CHILDREN – PARENS PATRIAE – medical treatment orders - application to discharge interim orders making child a ward of the Court and delegating parental responsibility to the Director-General, Department of Community Services – where child was born with high risk of contracting Hepatitis B from mother – where parents refused vaccination and absconded with child – where vaccination unlikely now to be effective but Director-General seeks that child be presented for medical examination – extent and nature of inherent parens patriae jurisdiction – effect of (CTH) Jurisdiction of Courts (Cross-Vesting) Act and (CTH) Family Law Act 1975 on inherent parens patriae jurisdiction – whether child should be made a ward of the Court before orders can be made – nature of medical treatment order – whether the Court can order police officers to recover child - PROCEDURE – CHILDREN – CLOSED COURT – whether proceedings involving exercise of parens patriae jurisdiction should be heard in closed court - CONTEMPT – where parents apparently deliberately failed to present their child for vaccination pursuant to court orders – whether matter should be referred to Attorney General for prosecution of contempt – whether prosecution in the interest of the child – whether prosecution in the public interest – relevant considerations – where Director-General of the Department of Community Services does not press for prosecution

LEGISLATION CITED: (NSW) Children (Care and Protection) Act 1987
(NSW) Civil Procedure Act 2005, s 71C
(CTH) Family Law Act 1975, s 67Q
(CTH) Jurisdiction of Courts (Cross-Vesting) Act 1987

CATEGORY: Principal judgment

CASES CITED: B & B (1997) 21 Fam LR 676; (1997) FLC 92-755
Director-General, New South Wales Department of Community Services v Y [1999] NSWSC 644
In re L (An Infant) [1968] P 119
K v Minister for Youth and Community Services [1982] 1 NSWLR 311
L v L [1969] P 25
Mulhall v Hartnell (1988) 91 FLR 240; (1988) 12 Fam LR 361; (1988) FLC 91-947
Re Elm [2006] NSWSC 1137; (2006) 69 NSWLR 145
Re "N" (Infants) [1967] Ch 512
Re X (a Minor) [1975] 2 WLR 335
Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218
Vaughan v Vaughan…

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 Jules

Details

AGLC: Re Jules [2008] NSWSC 1193
Case: [2008] NSWSC 1193
Decision Date: 2 September 2008

CaseChat Overview and Summary

The case of Re Jules involved an application by the Director-General of the Department of Community Services to the Family Court of Australia, seeking to discharge interim orders made under the inherent jurisdiction of the court. The orders had made the child a ward of the Court and delegated parental responsibility to the Director-General. The child, born with a high risk of contracting Hepatitis B from his mother, was at risk due to his parents' refusal to have him vaccinated and their subsequent absconding with him. The Director-General sought to have the child presented for medical examination, despite the likelihood that the vaccination would now be ineffective.

The court was required to decide several legal issues, including the extent and nature of the inherent parens patriae jurisdiction of the court, the effect of the Jurisdiction of Courts (Cross-Vesting) Act and the Family Law Act 1975 on this jurisdiction, and whether the child should be made a ward of the Court before orders could be made. The court also needed to determine the nature of the medical treatment order, whether it could order police officers to recover the child, and whether the proceedings should be heard in a closed court. Furthermore, the court had to consider whether the matter should be referred to the Attorney General for the prosecution of contempt due to the parents' apparent deliberate failure to present their child for vaccination pursuant to court orders.

The court held that the inherent jurisdiction of the court extended to making orders in the best interests of children in situations of serious risk to their health, even if such orders were not expressly provided for by statute. It found that the inherent jurisdiction was not limited by the Jurisdiction of Courts (Cross-Vesting) Act or the Family Law Act 1975. The court held that a child need not be made a ward of the Court before such orders could be made, and that the court could order police officers to recover the child. The court also decided that the proceedings should be heard in a closed court to protect the identity of the child. Finally, the court held that it was not in the interest of the child or the public interest to refer the matter to the Attorney General for the prosecution of contempt, given the Director-General's lack of interest in pursuing prosecution.

Orders