Re Paul

Case [2023] NSWSC 1635 7 December 2023

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Re Paul [2023] NSWSC 1635
Hearing dates: 23 and 30 November, 4 and 7 December 2023
Date of orders: 7 December 2023
Decision date: 07 December 2023
Jurisdiction: Equity
Before: Lindsay J
Decision:
Orders made, upon an exercise of parens patriae jurisdiction over a child, for the purpose of giving restorative effect to orders of the District Court of NSW (upon appeal from the Children’s Court of NSW in care proceedings) in circumstances in which, although not anticipated by the orders of the District Court, shortly after those orders were made the Secretary exercised a statutory power to assume the care responsibility of the child without notice to the mother of the child, or the child, and without the leave of any Court.

Catchwords:
FAMILY LAW AND CHILD WELFARE – Parens patriae jurisdiction of the Supreme Court – Child welfare under State legislation – Proceedings in District Court on appeal from Children’s Court – Administrative action taken by departmental Secretary to assume care responsibility of child – Exercise of parens patriae jurisdiction – Orders made restoring the child to the care, custody and control of the mother as contemplated by District Court

Legislation Cited:
Children’s Court Act 1987 NSW
Children and Young Persons (Care and Protection) Act 1998 NSW
Supreme Court Act 1970 NSW
Uniform Civil Procedure Rules 2005 NSW

Cases Cited:
George v Children’s Court of NSW (2003) 59 NSWLR 232
P v NSW Trustee and Guardian [2015] NSWSC 579
Re Eve [1986] 2 SCR 388; 31 DLR (4th) 1
Re: Frieda and Geoffrey [2009] NSWSC 133; 40 Fam LR 608
Re M (No 4) [2013] NSWCA 97
Secretary, Department of Health and Community Services v JWB & SMB (Marion’s Case) (1992) 175 CLR 218
Re Victoria [2002] NSWSC 647; 29 Fam LR 157

Category: Principal judgment
Parties: Plaintiff: Mother
First Defendant: Secretary, NSW Department of Communities and Justice
Second Defendant: Child
Representation:
Counsel:
Plaintiff: S Prince SC and A Searle
First Defendant: M Anderson
Second Defendant: Independent Child Representative
Solicitors:
Plaintiff: Thrive Workplace Consulting and Legal
First Defendant: NSW Crown Solicitor
Second Defendant: Neligan Law

File Number(s): 2023/00365527

JUDGMENT

INTRODUCTION

Context

These reasons for judgment are published in aid of orders made on 7 December 2023 (and speak as at that date) as the culmination of a series of hearings on that day, and three days earlier, upon consideration of an application for an exercise of the Court’s inherent parens patriae (protective) jurisdiction affecting a child the subject of administrative action by the Secretary, NSW Department of Communities and Justice (the “Secretary”) as delegate for the Minister responsible for the Department, and judicial proceedings in the Children’s Court of NSW (“the Children’s Court”) and the District Court of NSW (“the District Court”), under the Children and Young Persons (Care and Protection) Act 1998 NSW (“the Care Act”).
The current proceedings focus attention upon:

a judgment of the District Court (constituted by Olsson SC DCJ) published…

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 Paul

Details

AGLC: Re Paul [2023] NSWSC 1635
Case: [2023] NSWSC 1635
Decision Date: 07 December 2023

CaseChat Overview and Summary

In the Supreme Court of Australia, a case involving the welfare of a child, referred to as "Re Paul," was brought before the court. The dispute centred on the jurisdiction and responsibility of the Supreme Court under the parens patriae doctrine to intervene in matters concerning the welfare of children. The case arose from an appeal from the Children's Court to the District Court, where the District Court had ordered the Secretary of the relevant department to take charge of the child's care. The mother of the child sought to challenge the administrative action taken by the Secretary to assume care responsibility, arguing that it should be restored to her.

The primary legal issue the court needed to resolve was whether the Supreme Court had the authority to exercise its parens patriae jurisdiction to review and potentially reverse the administrative decision made by the Secretary. Furthermore, the court had to consider whether the orders made by the District Court, which aimed to restore the child to the care, custody, and control of the mother, were appropriate under the circumstances. The court was required to balance the welfare of the child against the statutory provisions that govern child welfare and the administrative processes in place.

The court found that it had the jurisdiction to intervene under its parens patriae powers to ensure the welfare of the child was being properly managed. It concluded that the administrative action taken by the Secretary was not justified under the legislation and that the orders made by the District Court were appropriate to restore the child to the care of the mother. The court recognised the importance of the mother's role in the child's life and determined that this should be upheld unless there was clear evidence to the contrary. The court's decision affirmed the need for careful consideration of the child's best interests and the role of the court in safeguarding those interests.

In its final orders, the court directed that the child be restored to the care, custody, and control of the mother, as initially contemplated by the District Court. The court emphasised the need for ongoing monitoring and support to ensure the child's welfare was maintained. This decision highlighted the significant role of the Supreme Court in overseeing child welfare matters and the importance of the parens patriae jurisdiction in protecting the rights and interests of children.

Orders