Director-General of the Department of Community Services v Priestley [2004] NSWSC 639

New South Wales Supreme Court

CITATION : Director-General of the Department of Community Services v Priestley [2004] NSWSC 639 HEARING DATE(S) : 09/07/04 JUDGMENT DATE : 9 July 2004 JURISDICTION: Equity Division JUDGMENT OF : Young CJ in Eq DECISION : Decline to permit summons to be filed returnable instanter.

CATCHWORDS : FAMILY LAW & CHILD WELFARE [108]- Interim custody- Determination recently made by Children's Court- Alleged errors of fact and undue weight- Insufficient to invoke urgent exercise of parens patriae jurisdiction. CASES CITED : Re Victoria [2002] NSWSC 647 PARTIES : Director-General of the Department of Community Services (P) Retene Lanceforde Priestley (D1) FILE NUMBER(S) : SC Not applicable COUNSEL : R Harper (P) 1st defendant in person SOLICITORS : As a result of this judgment the summons was never actually filed.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

YOUNG CJ in EQ

Friday 9 July 2004

DIRECTOR-GENERAL OF THE DEPARTMENT OF COMMUNITY SERVICES v PRIESTLEY JUDGMENT 1 HIS HONOUR: This is an application made by the Director-General of the Department of Community Services to list a dispute over the care of five young children before this court so that it can exercise its power in its parens patriae jurisdiction. The matter was before Magistrate Scott Mitchell yesterday and I am told that his Worship, after hearing the interested parties, made an order that subject to the supervision of the Director-General of the Department the children should be in the care of Mr Priestley. Mr Priestley is the person whom the Department intends to name as the first defendant in these proceedings. 2 The Department says, and in this it is joined by the mother of the children, that the learned Magistrate made two errors. First, he misinterpreted the material before him as to visits to the first defendant's home of various young ladies and reached a conclusion upon which there was no satisfactory or any material. Secondly, that he gave undue weight to the factor that the five children should be kept together and did not give sufficient weight to the material which was placed before him as a result of subpoenas to the Commissioner of Police with respect to the first defendant. 3 Today it is sought to file in court a summons and also a notice of motion that the matter be heard as a matter of urgency. I understand that the learned Magistrate's order was an interim order so that there is no appeal to the District Court but the matter can be re-listed before the Children's Court on seven days' notice and I believe in any event is returnable before that court on 23 July. 4 I asked counsel for the mother and also the solicitors for the children who appeared, one of them for two children, another for three children, and the defendant their attitude and they all supported the view that the court should not interfere. Mr Priestley particularly said that he was prejudiced in the matter coming on quickly and that he would wish to seek to obtain counsel. 5 The parens patriae wardship jurisdiction of the Supreme Court is a very important one in the administration of justice in New South Wales. However, as Palmer J said in Re Victoria [2002] NSWSC 647, it is only in the most extraordinary circumstances that this court should be asked, in the exercise of its parens patriae jurisdiction, to set aside or affect the decision of a magistrate in a Children's Court merely because a party is dissatisfied with that decision. It is also inappropriate in almost all cases for this court to be asked to deal with a matter in the parens patriae jurisdiction when the only errors alleged against the learned Magistrate, who is a specialised magistrate in a specialist jurisdiction, is that he or she in the exercise of a discretion failed to give due weight to a number of factual circumstances or disproportionate weight to others or where there is an error of fact that does not go to the fundamentals of the case. 6 I am handicapped in that I have not been given a copy of his Worship's reasons for judgment. I was told at 2.15 pm that there were some notes available of his Worship's reasons and I suggested that these be typed up and made available, as ordinarily this court expects to be told the reasons of the court below before being asked to intervene. After various messages that the notes would be available in another ten minutes, I reconvened the court at 3.30. The notes were still not available. At that stage I was offered the handwritten notes, but Mr Priestley objected to me seeing an incomplete version of what the Magistrate had decided, recorded by a solicitor for an adverse party. I accordingly proceeded without the notes. 7 It is, of course, incumbent on barristers and solicitors who are in court when an oral judgment is given to make as full note as possible of the judgment in case an appeal has to be lodged as a matter of urgency. It would seem this did not occur in the instant case. 8 I have looked at the material which Mr Harper, for the plaintiff, has indicated he would present if leave was given to hear the case urgently. It does not seem to me that what is alleged here warrants this court the next day re-examining the matter and making the same or some different conclusions. The matter is put as one of child protection and the court always gives allegations of that nature very serious consideration, but there must be, if this court is to re-examine a matter involving child protection, some very strong evidence that the decision of the Children's Court did not pay enough attention to a matter that is so fundamental that children really and truly are at risk rather than there being a suspicion they might be. 9 Accordingly, in my view, I should not give leave for the summons to be filed in court returnable forthwith. There is nothing that I can do to stop it being filed in the Registry and returnable in the usual course on five clear days notice. However, Mr Priestley has indicated that he understands the Department's preference to have the children reallocated. He is quite willing to talk the matter over to see what can be done in the interests of the children and it may well be that rather than pursuing this matter, the conversations can take place but that is not a matter for me. 10 Accordingly, I decline to give short service of the summons and, as I say, in accordance with the practice it will now be filed downstairs and in due course it may come back into the lists. 11 I should add that one very good reason for dealing with these cases in some detail at the time when short leave is asked is that if one does not and the matter gets into the system, then people can spend a lot of time and money putting on evidence in this court when the whole intention of the legislation is that these matters will be dealt with orally by specialised children's magistrates in the Children's Court rather than the expensive process of the Supreme Court. 12 Accordingly, even though it is required by the rules that the summons be filed, I personally would not have any objection if that never happened.