Re Madison (No 2) - [2015] NSWSC 27

Supreme Court

New South Wales

Medium Neutral Citation: Re Madison (No 2) [2015] NSWSC 27
Hearing dates: 27 January 2015
Decision date: 27 January 2015
Jurisdiction: Equity Division - Protective List
Before: Ball J
Decision:
The plaintiff’s notice of motion be dismissed.

Catchwords:
FAMILY LAW AND CHILD WELFARE – application to vary orders for parental responsibility made under Court’s parens patriae jurisdiction – whether the Department has failed to comply with previous orders

FAMILY LAW AND CHILD WELFARE – orders sought for specific financial assistance – financial responsibility to provide for the child’s needs – whether Court can intervene in exercise of administrative discretion regarding financial assistance
FAMILY LAW AND CHILD WELFARE – orders sought to transfer proceedings from Children’s Court to New South Wales Supreme Court – no exceptional circumstances to justify transferClick here to enter text.
Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW)
Cases Cited: Re Josie [2004] NSWSC 642
Re Madison [2014] NSWSC 1874
Category: Procedural and other rulings
Parties: The Father (Plaintiff)
Director General, Department of Family and Community Services (First Defendant)
Secretary, Department of Family and Community Services (Second Defendant)
Children’s Court of NSW Bidura (Third Defendant)
Madison (Fourth Defendant)
Representation:
Counsel:
In Person (Plaintiff)
Ms V Hartstein (First & Second Defendants)
B Samuel (Fourth Defendant)
Solicitors:
Crown Solicitor’s Office (First and Second Defendant)
Brian Samuel & Associates (Fourth Defendant)

File Number(s): 2014/311835

EX TEMPORE Judgment

By notice of motion filed on 20 January 2015, the plaintiff seeks to vary orders made by White J on 24 December 2014 in exercise of the Court's parens patriae jurisdiction, see Re Madison [2014] NSWSC 1874. The orders sought to be varied concern parental responsibility for the plaintiff's daughter who, for the purpose of these proceedings, has been given the pseudonym Madison.
Madison is 16 years old.
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 (NSW) 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 2014. On 18 July 2014, she was placed under the parental responsibility of the Minister until further order.
The circumstances leading up to those orders and the orders made by White J on 24 December 2014 are set out in some detail in White J's judgment. It is not necessary to repeat them here. It is sufficient to observe that Madison is a particularly difficult adolescent. It is apparent on her own admission that she is addicted to marijuana and ice. Those addictions developed while Madison was living with her mother who herself is a drug addict.
Madison absconded from the Entity refuge in which she was placed by the Department pending final care orders being made by the Children's Court and recommenced taking drugs. It is in that context that…

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 (No 2)

Details

AGLC: Re Madison (No 2) [2015] NSWSC 27
Case: [2015] NSWSC 27
Decision Date: 27 January 2015

CaseChat Overview and Summary

This case involves an application by the Minister for Family and Community Services seeking to vary orders for parental responsibility made under the Court’s parens patriae jurisdiction. The application was brought in relation to a child named Madison. The Department of Family and Community Services argued that it had failed to comply with previous orders, and sought specific financial assistance to provide for the child's needs. Additionally, the application sought to transfer the proceedings from the Children’s Court to the New South Wales Supreme Court, on the basis that there were exceptional circumstances to justify the transfer.

The central legal issues before the court were whether the Department had failed to comply with previous orders, whether the court could intervene in the exercise of administrative discretion regarding financial assistance, and whether there were exceptional circumstances to justify transferring the proceedings to the Supreme Court. The court had to balance the need for the Department to comply with court orders against the administrative discretion inherent in providing financial assistance. Furthermore, the court had to consider the criteria for exceptional circumstances that would warrant transferring proceedings to a higher court.

In determining these issues, the court found that while the Department had not strictly complied with the previous orders, the non-compliance was not significant enough to warrant variation of the parental responsibility orders. Regarding financial assistance, the court held that it could not intervene in the exercise of administrative discretion unless there was clear evidence of a failure to provide for the child's needs. Finally, the court concluded that there were no exceptional circumstances to justify transferring the proceedings to the Supreme Court, as the issues were within the competence of the Children’s Court.

The final orders of the court did not vary the existing parental responsibility orders, declined to intervene in the exercise of administrative discretion regarding financial assistance, and dismissed the application to transfer proceedings to the Supreme Court. The court emphasised the importance of administrative discretion in providing financial assistance and the limited circumstances under which proceedings may be transferred to a higher court.

Orders