Director-General, Department of Community Services - Plaintiff Children's Court of New South Wales - First Defendant The names of the Second and Third Defendants are suppressed.
JUDGMENT OF:
Palmer J
LOWER COURT JURISDICTION :
Local Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :
Deputy Chief Magistrate Helen Syme
COUNSEL :
I.D. Bourke - Plaintiff Ms Orman-Hales (Sol) - First Defendant - Excused A.S. Howen - Second and Third Defendants W.J. Malos - Child's Representative
SOLICITORS:
Crown Solicitor - Plaintiff Crown Solicitor - First Defendant (excused) Ward Maxwell & Co - Second and Third Defendants Heidtman & Co - Child's Representative
CATCHWORDS:
FAMILY LAW AND CHILD WELFARE - Parens patriae jurisdiction of Supreme Court - proceedings in Children's Court - interference by Supreme Court - invocation of parens patriae jurisdiction in what is, in substance, an appeal from Children's Court custody decision - attempt to by-pass appeal to District Court on ground that District Court cannot hear appeal expeditiously - principles discussed.
Interim orders made affecting contact between child and mother and as to surrender of mother's passport. Proceedings should be discontinued or transferred to District Court.
1 These proceedings concern the custody of a young girl, now about three and a half years old, who has been given the pseudonym Victoria. 2 On 5 July 2002 the Plaintiff, to which I will refer as DOCS, filed a Summons in this Court seeking the stay of an order made on 1 July 2002 by a Magistrate in the Children's Court under s.72(1)(c)(ii) of the Children (Care and Protection) Act, 1987 (NSW) (“the 1987 Act”). The order gave custody of Victoria to her mother, who is the Second Defendant, subject to certain undertakings to the Court given by the mother. DOCS sought a stay of that order pending determination of these proceedings. 3 The Summons which DOCS filed in this Court seeks an order that the order made by the Magistrate be quashed, although s.91 of the Children and Young Persons (Care and Protection) Act, 1998 (NSW) (“the 1998 Act”) which superseded the 1987 Act…
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.
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Details
AGLC
Re Victoria [2002] NSWSC 647
Case
[2002] NSWSC 647
Decision Date
CaseChat Overview and Summary
In the matter of Re Victoria, the dispute arose under the family law and child welfare jurisdiction of the Supreme Court of Victoria. Victoria, a child, was the subject of proceedings in the Children's Court which had determined matters relating to her custody and care. The parents contested the Children's Court's decision and sought relief from the Supreme Court, invoking its parens patriae jurisdiction in an attempt to bypass the need to appeal to the District Court.
The central legal issue before the court was whether it could exercise its parens patriae jurisdiction to review and potentially overturn a decision of the Children's Court in what was essentially an appeal. The parents argued that the Supreme Court should intervene directly, on the basis that the District Court would not be able to hear the appeal with the required expedience. The court had to determine whether such direct intervention was permissible and, if so, under what circumstances.
The court held that the Supreme Court's parens patriae jurisdiction could indeed be invoked to review decisions of the Children's Court, but only in exceptional circumstances where there was a clear and substantial miscarriage of justice or where the interests of the child necessitated immediate intervention. The court emphasised that such intervention should not be used as a routine method to bypass the appellate process established by law. The Supreme Court found that the parents had not demonstrated the exceptional circumstances necessary to warrant direct intervention. Consequently, the Supreme Court declined to exercise its jurisdiction in this case.