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Re Madison

Re Madison

Case [2014] NSWSC 1874 24 December 2014

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Supreme Court

New South Wales

Medium Neutral Citation: Re Madison [2014] NSWSC 1874
Hearing dates: 18, 19 and 23 December 2014
Decision date: 24 December 2014
Jurisdiction: Equity Division - Protective List
Before: White J
Decision:
Refer to para [103] of judgment

Catchwords: CHILD WELFARE - orders made in the parens patriae jurisdiction for recovery of child to be placed with father and for father to have authority to detain her - proceedings pending in Children's Court - Minister unable to provide secure accommodation - application by Minister to discharge orders and by father to vary orders
Legislation Cited: Children and Young Persons (Care and Protection) Act 1998
Family Law Act 1975 (Cth)
Cases Cited: Re Thomas [2009] NSWSC 217
Re Elizabeth [2007] NSWSC 729
Re Frances and Benny [2005] NSWSC 1207
Marion's case (1992) 175 CLR 218
R v Gyngall [1893] 2 QB 232
DOCS v Y [1999] NSWSC 644
Re Josie [2004] NSWSC 642; (2004) 32 Fam LR 64
Category: Procedural and other rulings
Parties: The Father (Plaintiff)
Director General, Department of Family and Community Services (1st Defendant)
Secretary, Department of Family and Community Services (2nd Defendant)
Children's Court of NSW Bidura (3rd Defendant)
Madison (4th Defendant)
Representation: Counsel:
In person (Plaintiff)
C McGorey (1st and 2nd Defendants)
B Samuel (4th Defendant)
Solicitors:
Crown Solicitors Office (1st and 2nd Defendants)
Submitting Appearance (3rd Defendant)
Brian Samuel & Associates (4th Defendant)

File Number(s): 2014/311835

Judgment

HIS HONOUR: These proceedings concern a 16-year-old girl who has been given a pseudonym, Madison.

On 2 July 2014, the Director General of the Department of Family and Community Services assumed care of Madison. An application for a care order under the Children and Young Persons (Care and Protection) Act 1998 was filed in the Children's Court on 7 July 2014.

On 10 July 2014, Madison was placed under the parental responsibility of the Minister until 18 July. On 18 July, she was placed under the parental responsibility of the Minister until further order.

On 24 October 2014, on the application of Madison's father and in the exercise of the Crown's parens patriae jurisdiction and with the ultimate support of the Secretary of the Department of Family and Community Services, who is the Director General, and the Minister, I made an order directing the police to recover Madison and to deliver her to her father. I made an order authorising Madison's father to detain her at his residential premises using no more force than was reasonable and necessary to do so and I authorised him to use force being not more than was reasonable and necessary to restrain her in order to prevent her from injuring herself or others.

I made other orders, including orders that would permit the Department of Family and Community Services to remove Madison to a place of secure accommodation if one were available. I also ordered that until and including 7 November 2014, Madison's father have joint parental responsibility for her with the Minister, but that his parental…

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 Madison

Details

AGLC: Re Madison [2014] NSWSC 1874
Case: [2014] NSWSC 1874
Decision Date: 24 December 2014

CaseChat Overview and Summary

The matter before the court involved a dispute over the welfare of a child, Madison. The Minister for Family and Community Services sought to discharge existing orders that placed Madison with her father. The father, in turn, applied to vary the orders to allow him to retain custody. The case was heard in the Family Court of Australia. The central issue was whether the existing orders should be discharged or varied, given the circumstances of the case and the pending proceedings in the Children's Court. The court also needed to determine if there was a suitable alternative arrangement for Madison's care, considering the Minister's inability to provide secure accommodation.

The court considered the welfare and best interests of Madison as the paramount concern. It examined the current orders, the reasons for the Minister's application to discharge them, and the father's application to vary them. The court recognised the challenges in providing secure accommodation and weighed these against the potential risks of altering the child's living situation. It also took into account the ongoing proceedings in the Children's Court and the need for stability in Madison's life. Ultimately, the court concluded that the existing orders should be discharged but did not grant the father's application to vary them, as it was not in Madison's best interests to change her living arrangements at that time.

The court's decision was influenced by the importance of providing a stable and secure environment for Madison. While acknowledging the father's role, the court determined that discharging the existing orders was necessary due to the Minister's inability to offer secure accommodation. The court did not find it appropriate to grant the father's application for variation, given the circumstances and the pending matters in the Children's Court. The final orders included discharging the existing orders but did not allow for the father to have custody or the authority to detain Madison. The court's decision aimed to protect Madison's welfare and ensure her ongoing care and safety.

Orders