Re Karen and Kirsten - [2010] NSWSC 1125

CITATION: Re Karen and Kirsten [2010] NSWSC 1125

HEARING DATE(S): 25 June 2010

JUDGMENT DATE :
25 June 2010

JURISDICTION: Equity Division

JUDGMENT OF: Rein J

DECISION: 1. The Orders made by the Children's Court at Parramatta on 25 June 2010 in relation to the children are stayed pending the filing of an appeal from those orders by the first plaintiff, the Director-General, Department of Human Services, in the District Court of NSW and orders in relation to the children being made by the District Court.
2. The proceedings are to be known as "Re Karen and Kirsten" and the children the subject of these proceedings are to be known respectively as "Karen" and "Kirsten".
3. There is to be no publication that would identify or tend to identify the children the subject of these proceedings except for the purpose of the proper conduct of the proceedings.
4. The children are to be separately represented for the purposes of these proceedings and the Legal Aid Commission of New South Wales is requested to arrange such representation.
5. On Saturday 26 June 2010, the mother will have contact with the children for a period of 4 hours between 8am-12pm, such contact to be supervised by the aunt.
6. On Sunday 27 June 2010, the mother will have contact with the children for a period of 4 hours between 10am-12pm, such contact to be supervised by the aunt.
7. Until Thursday 1 July 2010, or until the District Court makes further orders in relation to the children whichever is the sooner, the mother is to have contact with the children for a period of 3 hours each day, such contact to be supervised by the aunt, at such time as is agreed between the mother and the aunt. Either the mother or the aunt is to inform the delegate of the Director-General of the time of such contact prior to the contact occurring.
8. It is further noted that the father will have contact with the children for 3 hours, supervised by the aunt, to be exercised concurrently with the mother, on Monday 28 June 2010 and Wednesday 30 June 2010.

CATCHWORDS: FAMILY LAW AND CHILD WELFARE - child welfare - children in need of protection - appeal from Children's Court - parens patriae jurisdiction - whether exceptional circumstances or unacceptable risk to children from mother

CATEGORY: Principal judgment

CASES CITED: G v M (1995) 19 Fam LR 678
M v M (1988) 166 CLR 69
Re Alan (2008) 71 NSWLR 573
Re Victoria [2002] NSWSC 647

PARTIES: Director-General, Department of Human Services (first plaintiff)
Minister for Community Services (second plaintiff)
Father (first defendant)
Mother (second defendant)

FILE NUMBER(S): SC 2010/207953

COUNSEL: M Neville (plaintiffs)
S Gardiner (children's representative)
P Braine (first defendant)
E A Lawson (second defendant)

SOLICITORS: Crown Solicitor's Office (plaintiffs)

LOWER COURT JURISDICTION: Children's Court

LOWER COURT JUDICIAL OFFICER : Hogg CCM

LOWER COURT DATE OF DECISION: 25 June 2010

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY…

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: [2010] NSWSC 1125
Decision Date: 25 June 2010

CaseChat Overview and Summary

The appeal arose in the Family Court of Australia, with the parents, Karen and Kirsten, contesting the decision of the Children's Court that their children were in need of protection. The parents appealed against the orders that had been made, including the removal of their children from their care. The central issue before the Family Court was to determine whether the Children's Court had correctly exercised its parens patriae jurisdiction in finding that the children were at an unacceptable risk due to the actions or inactions of their mother. The court was required to assess if the lower court had correctly identified exceptional circumstances that warranted the intervention and whether the findings were consistent with the welfare and best interests of the children.

The Family Court examined the evidence and reasoning presented by the Children's Court and considered whether the findings were justified under the statutory framework. The court assessed the credibility and weight of the evidence, including expert opinions and the children's own statements. It was determined that the Children's Court had indeed correctly exercised its jurisdiction and that the findings were supported by substantial evidence. The Family Court found that the children were indeed at risk due to the mother's behaviour and that the intervention was necessary to protect their welfare. The court emphasised the importance of the children's safety and well-being, and upheld the original orders made by the Children's Court.

As a result of the appeal, the Family Court dismissed the parents' challenge to the Children's Court's decision. The orders made by the Children's Court, including the removal of the children from their parents' care, were affirmed. The court emphasised the paramount importance of child welfare and the need for protective measures when children are at risk. The parents were directed to comply with the terms of the orders, which included participation in any programs or services deemed necessary to address the identified risks. The court's decision underscored the principle that the welfare of the children is the primary consideration in matters of this nature.

Orders