Re Linda

Case [2011] NSWSC 1596 20 December 2011

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Re Linda [2011] NSWSC 1596
Hearing dates: 16, 17,18 May 2011 10, 11 August 2011
Decision date: 20 December 2011
Before: McCallum J
Decision:
Parenting orders made substantially as sought by the Mother

Catchwords: FAMILY LAW AND CHILD WELFARE - claim by mother invoking parens patriae and supervisory jurisdiction of Supreme Court after Director-General of Community Services assumed care responsibility of child - proceedings commenced on same day as care proceedings in the Children's Court - error in Children's Court proceedings conceded - exceptional circumstances established such as to warrant Supreme Court not following usual approach of declining to exercise jurisdiction pending determination of care proceedings - likelihood of multiple further proceedings if mother's claim not heard in the Supreme Court - request for Supreme Court to cross-vest jurisdiction under Family Law Act 1975 - jurisdiction cross-vested - parenting orders made
Legislation Cited: Children and Young Persons (Care and Protection) Act 1998
Family Law Act 1975 (Cth)
Family Law Amendment (Shared Parental Responsibility) Act 2006
Family Law Regulations 1984
Mental Health Act 2007
Cases Cited: Cowley & Mendoza [2010] FamCA 597; (2010) 43 FamLR 435
Director-General, Department of Community Services; re Jules [2008] NSWSC 1193; (2008) 40 FamLR 122
Goode v Goode [2006] FamCA 1346; (2006) 206 FLR 212; (2006) FLC 93-286
McCall & Clark [2009] FamCAFC 92; (2009) 41 Fam LR 483
Re: Georgia and Luke [2008] NSWSC 1277
Wilson v Department of Human Services - re Anna [2010] NSWSC 1489
Re Victoria [2002] NSWSC 647; (2002) 29 Fam LR 157
Rice & Asplund 6 FAMLR 570
Starr & Duggan [2009] FamCAFC 115
Category: Principal judgment
Parties: Mother of Linda (plaintiff/applicant)
Director-General, Dept of Family & Community Services (first defendant/ intervenor)
Father of Linda (second defendant/ respondent)
Independent Children's lawyer (child)
Representation: M Graham (plaintiff/applicant)
G Moore (first defendant/ intervenor)
D Burns and later A Mooney (second defendant/respondent)
M Neville (child)
Hunter Family Law Centre (plaintiff/applicant)
Crown Solicitor's Office (first defendant/ intervenor)
Rod Powe Lawyers (second defendant/respondent)
Legal Aid (child)

File Number(s): 2010/415007
Publication restriction: None

Judgment

These proceedings concern the care of a child referred to for the purpose of the proceedings as Linda (in accordance with a pseudonym order made by Hidden J on 3 February 2011).

The proceedings were commenced by Linda's mother after the Director-General of the Department of Community Services assumed the care responsibility of Linda in exercise of the power under section 44 of the Children and Young Persons (Care and Protection) Act 1998. The principal relief initially sought was to have Linda returned to the mother forthwith. In order to explain the relief ultimately sought in the proceedings, it is necessary to explain the context in which the Director-General's decision was made and the events that followed it.

Care of Linda prior to the Director-General's decision

The plaintiff has an older son from a previous relationship, to whom I will refer as Ashley (not his real…

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 Linda

Details

AGLC: Re Linda [2011] NSWSC 1596
Case: [2011] NSWSC 1596
Decision Date: 20 December 2011

CaseChat Overview and Summary

The case of Re Linda involved a dispute where the mother sought to invoke the parens patriae and supervisory jurisdiction of the Supreme Court of Australia. The Director-General of Community Services had assumed responsibility for the care of her child, and proceedings were initiated in the Supreme Court on the same day as care proceedings in the Children's Court. The mother's claim was made under the Family Law Act 1975, requesting that the Supreme Court cross-vest its jurisdiction to hear the matter.

The primary legal issue was whether the Supreme Court should exercise its jurisdiction over the matter, particularly given the concurrent proceedings in the Children's Court and the conceded error in those proceedings. The court had to determine if the exceptional circumstances warranted the Supreme Court not following the usual approach of declining to exercise its jurisdiction pending the outcome of the Children's Court proceedings. Additionally, the court needed to consider whether there was a likelihood of multiple further proceedings if the mother's claim was not heard in the Supreme Court.

In addressing these issues, the court found that the exceptional circumstances did indeed warrant the Supreme Court exercising its jurisdiction. The risk of multiple further proceedings if the claim was not heard in the Supreme Court was significant. Consequently, the court cross-vested its jurisdiction under the Family Law Act 1975, and parenting orders were made in favour of the mother. This decision was made to ensure the welfare of the child and to prevent unnecessary duplication of proceedings.

Orders