Re Phillipa - [2008] NSWSC 1158

CITATION: Re Phillipa [2008] NSWSC 1158

HEARING DATE(S): 24/10/08

JUDGMENT DATE :
24 October 2008

JURISDICTION: Equity

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 24 October 2008

DECISION: Proceedings dismissed.

CATCHWORDS: PRACTICE AND PROCEDURE – summary dismissal – orders sought revoking orders of the Children’s Court – interim orders sought invoking the parens patriae jurisdiction – no exceptional circumstances warranting circumvention of the Children’s Court – allegations of perjury and conspiracy in lower courts not supported by evidence – no reasonable cause of action disclosed that would allow the Court to revoke orders of the Children’s Court – orders sought pursuant to the parens patriae jurisdiction were an abuse of process

LEGISLATION CITED: Children and Young Persons (Care and Protection) Act 1998 (NSW)

CASES CITED: Re Victoria [2002] NSWSC 647
Re Frances and Benny [2005] NSWSC 1207
Director-General of the Department of Community Services v Priestley [2004] NSWSC 639
Re Barbara [2006] NSWSC 536
Re Alan [2008] NSWSC 379
Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

PARTIES: Re Phillipa

FILE NUMBER(S): SC 3939/08

COUNSEL: Plaintiff: In person
Defendant: I Bourke
Child: K Reynolds

SOLICITORS: Plaintiff: na
Defendant: Crown Solicitor

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Friday, 24 October 2008

3939/08 Re Phillipa

CLOSED COURT

JUDGMENT

1 HIS HONOUR: The first defendant, being the Director-General of the Department of Community Services, applies under r 13.4 of the Uniform Civil Procedure Rules (“UCPR”) for the summary dismissal of these proceedings on the ground of that they are frivolous or vexatious and fail to disclose any reasonable cause of action.

2 The proceedings were commenced by summons filed on 28 July 2008. The plaintiff seeks orders to revoke or quash an order made by the Children's Court on 9 February 2005 allocating parental responsibility of her daughter to the Minister. She claims an order that all aspects of parental responsibility should be allocated to her, and that her daughter should be restored to her full-time care. She also seeks an order for the payment of costs from December 2003.

3 She seeks orders, by way of interim relief, that she have unlimited and unsupervised access to the child. I might here interpolate that, pursuant to an order made by Brereton J on 26 August 2008, the child is to be known in these proceedings as “Phillipa” and I will so refer to her in the rest of these reasons.

4 The plaintiff also seeks, by way of interim relief, orders directed to the foster carer of Phillipa relating to Phillipa's religious upbringing, dental and medical treatment and musical education. She also seeks orders to restrain Phillipa's foster carer and others from "manipulating" Phillipa or “inflicting fear” on her.

5 The summons wrongly named Phillipa as a co-plaintiff and named the case workers engaged by the Department of Community Services and a foster carer as defendants. However, on 26 August 2008, Brereton J made…

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 Phillipa

Details

AGLC: Re Phillipa [2008] NSWSC 1158
Case: [2008] NSWSC 1158
Decision Date: 24 October 2008

CaseChat Overview and Summary

The case of Re Phillipa involved Phillipa, a party, who sought summary dismissal of orders made by the Children's Court. Phillipa applied to the court to revoke the Children's Court orders and sought interim orders invoking the parens patriae jurisdiction. The primary legal issue was whether the court could bypass the Children's Court to revoke its orders, given that Phillipa alleged perjury and conspiracy in the lower courts. The court needed to determine if there were exceptional circumstances justifying such action and whether there was a reasonable cause of action to allow the revocation of the Children's Court orders.

The court found that no exceptional circumstances existed that warranted bypassing the Children's Court. The allegations of perjury and conspiracy were not supported by any evidence, and there was no reasonable cause of action that would allow the court to revoke the Children's Court orders. The court held that the orders sought pursuant to the parens patriae jurisdiction constituted an abuse of process. The court ruled that the application was not founded on any reasonable cause of action and was an improper use of the court's process.

In conclusion, the court dismissed Phillipa's application to revoke the Children's Court orders and denied the interim orders invoking the parens patriae jurisdiction. The court found that the application was an abuse of process, as there were no exceptional circumstances or reasonable cause of action to support the revocation of the Children's Court orders. The court's decision upheld the authority and jurisdiction of the Children's Court in such matters.

Orders