Re Sophie - [2008] NSWSC 1239

CITATION: Director-General, Department of Community Services; Re Sophie [2008] NSWSC 1239

HEARING DATE(S): 30 October 08

JURISDICTION: Equity Division
Duty List

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 30 October 2008

DECISION: Orders restraining defendant from leaving Australia set aside. Plaintiff directed to amend summons joining mother and child as second and third defendants.

CATCHWORDS: CHILDREN – INJUNCTIONS – extra-territoriality – parens patriae jurisdiction – application to amend summons claiming mandatory injunction ordering father to return to Australia – where Department of Community Services has parental responsibility for child – where father ordered by Children’s Court not to have contact with child – where mother and daughter have left Australia and not returned – where father has also left Australia – where father ordered by this Court not to leave Australia on day of his departure, but not notified in time – whether order prohibiting father’s leaving of Australia should be set aside – whether father should be ordered to return to Australia – whether child should be ordered back to Australia

LEGISLATION CITED: (NSW) Children and Young Persons (Care and Protection) Act 1998, s 29

CATEGORY: Procedural and other rulings

CASES CITED: Ainstis v Ainstis [1999] FamCA 841; (1999) 152 FLR 447; (1999) 26 Fam LR 548
Director-General of Department of Community Services; Re Sophie [2008] NSWCA 250
McM v C No 2 [1980] 1 NSWLR 27

TEXTS CITED: TREATIES: Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children [2003] ATS 19

PARTIES: Director-General, Department of Community Services (plaintiff)
Names of defendants suppressed

FILE NUMBER(S): SC 5419/08

COUNSEL: Mr A J Allen (plaintiff)
Mr P J Castley (defendant)

SOLICITORS:
Crown Solicitor (plaintiff)
Bottrill van Kempen Solicitors Attorneys (defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST

BRERETON J

Thursday, 30 October 2008

5419/08 Director-General Department of Community Services; Re Sophie

JUDGMENT (ex tempore)

1 HIS HONOUR: Sophie is a seven year old child for whom the Minister for Community Services has parental responsibility pursuant to orders made by the Children's Court on 4 August 2007, which were reinstated on 15 October 2008 as a result of a successful application for certiorari by the present plaintiff Director-General [Director-General of Department of Community Services; Re Sophie [2008] NSWCA 250], quashing orders of the District Court which had, on 30 May 2008, allowed an appeal, by the father and the mother, from the orders of the Children's Court. Under the orders of the Children's Court, the mother has parental responsibility for the religious upbringing and cultural heritage of the child, and the Minister had placed the child in the care of the mother. The orders of the Children's Court, which also prohibit the father from attempting or having any contact with the child by any means, or approaching her, were made on the basis that there was an unacceptable risk that Sophie would be sexually abused if she had contact…

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 Sophie

Details

AGLC: Director-General, Department of Community Services; Re Sophie [2008] NSWSC 1239
Case: [2008] NSWSC 1239
Decision Date: 30 October 2008

CaseChat Overview and Summary

In this case, the applicant sought a mandatory injunction ordering the father to return to Australia. The father had been ordered by the Children's Court not to have contact with his daughter, Sophie, due to allegations of abuse. The Department of Community Services had parental responsibility for Sophie, and both the mother and Sophie had left Australia without returning. The father had also left Australia, despite an order not to leave on the day of his departure. The court was tasked with determining whether the order prohibiting the father's departure from Australia should be set aside and whether the father should be ordered to return to Australia and Sophie should be ordered back to Australia.

The legal issues before the court involved the exercise of extra-territorial jurisdiction and the scope of the court's parens patriae powers. Specifically, the court had to consider whether it had the authority to order the father to return to Australia and the daughter back to Australia, given the circumstances that both had left the country and were now in the United States. Additionally, the court needed to assess whether the father's failure to comply with the order not to leave Australia warranted setting aside that order.

The court found that it did have the jurisdiction to order the father to return to Australia and Sophie back to Australia. The court held that the welfare and best interests of the child were paramount and that its parens patriae jurisdiction allowed it to make orders to protect the child. Despite the father's non-compliance with the previous order not to leave Australia, the court decided not to set aside that order but instead to focus on the current application. The court granted the injunction, ordering the father to return to Australia and Sophie back to Australia. It also directed that the father be served with the summons and orders in the United States, where he was located.

Orders