Director-General, Department of Community Services; Re Jules [2008] NSWSC 1193

New South Wales Supreme Court

CITATION : Director-General, Department of Community Services; Re Jules [2008] NSWSC 1193

HEARING DATE(S) : 2 & 15 September 2008 JURISDICTION : Equity Division Duty List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 2 September 2008

DECISION : The Court has the statutory equivalent of its former inherent parens patriae jurisdiction in respect of all children, by operation of Family Law Act and Cross-Vesting Act. A medical treatment order is in substance a request and consent, in place of a parent's, for treatment of a child. Although some steps can be taken in the parens patriae jurisdiction without making the child a ward of the Court, such a medical treatment order is founded on an assumption from the parent of part of at least some aspect of parental responsibility. Interim wardship order and parental responsibility orders discharged. Summons dismissed.

CATCHWORDS : CHILDREN – PARENS PATRIAE – medical treatment orders - application to discharge interim orders making child a ward of the Court and delegating parental responsibility to the Director-General, Department of Community Services – where child was born with high risk of contracting Hepatitis B from mother – where parents refused vaccination and absconded with child – where vaccination unlikely now to be effective but Director-General seeks that child be presented for medical examination – extent and nature of inherent parens patriae jurisdiction – effect of (CTH) Jurisdiction of Courts (Cross-Vesting) Act and (CTH) Family Law Act 1975 on inherent parens patriae jurisdiction – whether child should be made a ward of the Court before orders can be made – nature of medical treatment order – whether the Court can order police officers to recover child - PROCEDURE – CHILDREN – CLOSED COURT – whether proceedings involving exercise of parens patriae jurisdiction should be heard in closed court - CONTEMPT – where parents apparently deliberately failed to present their child for vaccination pursuant to court orders – whether matter should be referred to Attorney General for prosecution of contempt – whether prosecution in the interest of the child – whether prosecution in the public interest – relevant considerations – where Director-General of the Department of Community Services does not press for prosecution