Re Barbara & Ors [2006] NSWSC 413

New South Wales Supreme Court

CITATION : Re Barbara & Ors [2006] NSWSC 413

HEARING DATE(S) : 28/04/06 JUDGMENT OF : Gzell J

EX TEMPORE JUDGMENT DATE : 04/28/2006

DECISION : Amended undertakings by grandmother accepted pending the outcome of the Children's Court proceedings.

CATCHWORDS : FAMILY LAW AND CHILD WELFARE - Child welfare other than under Family Law Act 1975 and related Acts - Parens patriae jurisdiction - Application by Director-General of the Department of Community Services that the Minister of Community Services be allocated parental responsibility for three young children pending final determination of proceedings before the Children's Court - Whether grandmother had breached undertakings given to the court to act as a full time live in carer of the children

Director-General of the Department of Community Services - Plaintiff PARTIES : Mother - First Defendant Father - Second Defendant Grandmother - Third Defendant

FILE NUMBER(S) : SC 2368/06

Mr M W Anderson - Plaintiff Ms O Conolly, Solicitor - First Defendant COUNSEL : Mentioned for by Ms Robertson, Solicitor - Second Defendant Ms Robertson, Solicitor - Third Defendant Mr McLauchlan, Solicitor - For First Child Mr Braine - For Second and Third Child

I V Knight Crown Solicitor SOLICITORS : Legal Aid Commission James McCaffrey & Associates Robertson Solicitors

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

GZELL J

FRIDAY 28 APRIL 2006

2368/06 RE BARBARA & ORS EX TEMPORE JUDGMENT 1 There is before the Court an application that the Minister be allocated parental responsibility for the children. 2 The matter was before Barrett J on 13 April 2006 when his Honour accepted undertakings given by the grandmother and stood the matter over to today. It had been expected that proceedings in the Children's Court would be concluded yesterday but that has not eventuated, and proceedings with respect to the three children have been stood over to 23 and 24 May 2006. 3 The undertakings given by the grandmother were in these terms: "That she will live in full time with the parents and the three children at their home at [address suppressed] up to and including 28 April 2006 and will: (a) adopt the role of full time carer looking after the children to the best of her ability; (b) support and encourage the parents in their parenting responsibilities; and (c) contact DOCS immediately she has any apprehension that the parents are not properly caring for the children." 4 The Director-General submits that there have been breaches of these undertakings in that the grandmother has allowed the children to be under the control of the parents in her absence. One of the children is being breastfed and there is a need for the parents to have urine tests taken which creates a difficulty if the undertakings are construed to mean that the grandmother must always be in contact with the children and that the parents may not, on any occasion, have exclusive possession of the children. 5 That seems to me to be an unnecessarily rigid interpretation of the undertakings. Clearly there will be times at which the grandmother, even living in the house, must leave the children under the control of the parents. This must obviously happen if she wishes to go to the bathroom. 6 In my view, the undertakings as framed allow for the parents, under the supervision of the grandmother, to have the children in their possession without her presence. 7 However, it is a matter of concern to the Minister, and I have asked whether the grandmother is prepared to extend her undertakings in two respects. Through her representative she has now given to the Court continuing undertakings in the previous terms until 25 May 2006 with the following additions. 8 Paragraph (c) of the undertakings, to contact DOCS immediately she has any apprehension that the parents are not properly caring for the children, will be extended by adding the words: "or that the parents are drug affected." 9 A further undertaking is given by the grandmother, as paragraph (d), in these terms: "She will in all practical circumstances accompany the parents when they leave the house with the children." 10 In my view, the extensions to the undertakings are sufficient to enable me to stand this matter over before the Duty Judge at 10am on 25 May 2006 and I do so.