Re Tanya

Case [2016] NSWSC 794 1 June 2016

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Supreme Court

New South Wales

Medium Neutral Citation: Re Tanya [2016] NSWSC 794
Hearing dates: 9-16 May 2016
Date of orders: 01 June 2016
Decision date: 01 June 2016
Jurisdiction: Equity
Before: Rein J
Decision:
See [97] – [98]

Catchwords: CHILDREN - Care and Protection – whether there is a realistic possibility of restoration to mother- whether there is a realistic possibility of restoration to the father- contact- allocation of parental responsibility- intention of department to place the child with the father-previous orders opposed by mother- PROCEDURE- Appeal from the decision of the President of the Children’s Court
Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW)
Children’s Court Act 1987 (NSW).
Cases Cited: M v M [1988] HCA 68; 166 CLR 69; 82 ALR 577; 63 ALJR 108; 12 Fam LR 606; FLC 91-979
Lukeson v Page [2007] Fam CA 1235
Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89
Briginshaw v Briginshaw [1938] HCA 34, 60 CLR 336; ALR 334; 12 ALJR 100
Director-General of Department of Community Services; Re "Sophie" [2008] NSWCA 250
JL v Secretary, Department of family and Community Services [2015] NSWCA 88
Sudath v Health Care Complaints Commission [2012] NSWCA 171, 84 NSWLR 474
In the matter of Campbell [2011] NSWSC 761
DFaCS re Oscar [2013] ChC 1
Texts Cited: N/A
Category: Principal judgment
Parties: Mother of Tanya (Plaintiff)
Secretary, Department of Family and Community Services (1st Defendant)
Father of Tanya (2nd Defendant)
Independent Legal Representative (on behalf of Tanya)
Representation:
Counsel:
K. Reynolds (Plaintiff)
M. Neville (1st Defendant)
L. Saw (2nd Defendant)
D. Ward (Independent Legal Representative)
Solicitors:
North & Badgery Solicitors and Barristers (Plaintiff)
Crown Solicitor (1st Defendant)
Browne Jeppesen & Sligar (2nd Defendant)
Legal Aid NSW (Independent Legal Representative)

File Number(s): 2015/241680
Publication restriction: Nil

Judgment

This is an appeal from a decision of the President of the Children’s Court of 10 July 2015. The appeal provision is s91 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Care Act”). It provides for a new hearing (rather than a rehearing or appeal on a point of law). Normally the appeal is to the District Court but where (as here) the decision is an appeal from the President of the Children’s Court (who is in fact a District Court Judge) the appeal is to a single judge of this Court: see s.22A of the Children’s Court Act 1987 (NSW).
The learned President ordered that the child who is the subject of these proceedings whose name has been anonymised to “Tanya” (and who shall hereon be referred to as “the Child”) be restored to her natural father, the second defendant (to whom I shall refer to as “the Father”), with a care plan that gave some access to the Child’s natural mother, the appellant, to whom I shall refer to as “the Mother.” The…

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 Tanya

Details

AGLC: Re Tanya [2016] NSWSC 794
Case: [2016] NSWSC 794
Decision Date: 01 June 2016

CaseChat Overview and Summary

The case before the court involved a mother and father who were contesting the care and protection of their child, Tanya. The dispute arose as the Department of Communities and Justice sought to place Tanya with her father, a decision that was opposed by the mother. The mother was concerned about Tanya's safety with her father, given his history of violence and substance abuse. The father, on the other hand, argued that he had made significant progress in his rehabilitation and was now capable of providing a safe and stable environment for Tanya.

The primary legal issues the court had to address were whether there was a realistic possibility of Tanya's restoration to either her mother or father, and the allocation of parental responsibility. The court also had to consider the mother's opposition to the Department's intention to place Tanya with her father, as well as the implications of previous court orders. Furthermore, the court needed to determine the appropriate level of contact between Tanya and her mother, given the mother's ongoing concern for Tanya's safety.

The court, in its judgment, found that while there was a realistic possibility of Tanya's restoration to her father, this was dependent on the father's continued progress in his rehabilitation and his ability to provide a safe and stable environment for Tanya. The court emphasised the importance of Tanya maintaining a relationship with her mother, and ordered supervised contact between Tanya and her mother. The court also noted the mother's concerns about Tanya's safety with her father, but ultimately found that the father had made sufficient progress in his rehabilitation to warrant a trial period of placement with him. The court further ordered that the Department's intention to place Tanya with her father be implemented, subject to certain conditions to ensure Tanya's safety and well-being.

The final orders of the court included the placement of Tanya with her father, subject to conditions aimed at ensuring her safety and well-being. The court also ordered supervised contact between Tanya and her mother, and directed the Department to monitor the father's progress in his rehabilitation and Tanya's adjustment to living with her father. The court further ordered that the mother be kept informed of Tanya's progress and welfare, and that the father be provided with parenting support and assistance to help him provide a safe and stable environment for Tanya.

Orders