Re Jennifer & Siblings [2008] NSWSC 1317

New South Wales Supreme Court

CITATION : Re Jennifer & Siblings [2008] NSWSC 1317

HEARING DATE(S) : 5 December 2008

JUDGMENT DATE : 5 December 2008

JURISDICTION : Equity

JUDGMENT OF : Hamilton J

DECISION : Proceedings dismissed.

CATCHWORDS : FAMILY LAW AND CHILD WELFARE [517] - Child welfare under state legislation - Whether Supreme Court ought exercise parens patriae jurisdiction where unappealable interim order has been made by Children's Court.

CATEGORY : Principal judgment

CASES CITED : Re Oscar [2002] NSWSC 453 Re Victoria [2002] NSWSC 647

Jurek-Wladisjslaw: Kostrzewski (P) Jaclyn Glover (D1) PARTIES : Lauren Frazer (D2) Dr Dimitra Tzioumi (D3) Commissioner of Police NSW Police Force (D4) Director General Department of Community Services (D5)

FILE NUMBER(S) : SC 5860/08

In Person (P) COUNSEL : No appearances (D1-3) A L Duvall, Solicitor (D4) A J Allen (D5)

In Person (P) SOLICITORS : No appearances (D1-3) A L Duvall, Solicitor (D4) I V Knight, Crown Solicitor (D5)

- 4 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

FRIDAY, 5 DECEMBER 2008

5860/08 RE JENNIFER & SIBLINGS JUDGMENT 1 HIS HONOUR: This is a matter concerning a total of eight children of whom the plaintiff is the father. Interim orders have been made concerning all these eight children by the Children's Court and proceedings in the Children's Court are continuing for the purpose of that Court making final orders in the proceedings relating to the children. 2 The proceedings in this Court are brought by a summons issued at the suit of the father. The summons was originally directed to a Departmental manager of case workers, a case worker and a medical practitioner who had had some involvement with the children and also, as a fourth defendant, to the Commissioner of Police, whose officers had some involvement in the execution of search warrants relating to two of the children. I should add at this point that six of the children are currently resident with foster parents in whose care they have been placed. Two of them are currently in locations known among the parties to these proceedings only to the plaintiff. 3 I have today ordered that the Director General of the Department of Community Services ("the Director General") be joined as a fifth defendant to the proceedings, as it is the Director General who bears responsibility for the proceedings in relation to the children rather than any of his individual officers. 4 The Commissioner of Police has been joined as a defendant because police officers were involved in the execution of search warrants issued to attempt to find the missing children, although it should be said at once that the warrants were issued at the instance of the Director General rather than at the instance of police officers. 5 The principal burden of the orders sought in the summons is for the return of the children to the father. In this regard they are, in effect, an appeal from the interim orders made by the Children's Court. There is no statutory appeal from interim orders of the Children's Court relating to children, although there is an appeal to the District Court from a final order in respect of children made by the Children's Court. 6 The Director General has today filed in court a notice of motion in which the substantive relief that is sought is for the dismissal of the plaintiff's summons. The Director General does not for the moment suggest that the orders sought are not within the parens patriae jurisdiction of this Court. However, he draws attention to the fact that the policy of this Court is that, where a matter is also within the jurisdiction of the Children's Court and particularly where that Court is currently vested with proceedings concerning the children, this Court's jurisdiction concerning the children will be exercised only in exceptional circumstances. 7 This principle has been stated in a number of cases including my own decision in Re Oscar [2002] NSWSC 453 at [18] to which my attention has been drawn. My attention is likewise drawn to the decision of Palmer J in Re Victoria [2002] NSWSC 647. In that case, his Honour particularly said that the wardship jurisdiction of the Court should not in general be invoked in the case of what is, in substance, an appeal from a decision of the Children's Court: see [40]. 8 I have heard what the plaintiff, who appears in person, has to say in answer to my question as to what are the exceptional circumstances that he propounds as justifying the invocation of the jurisdiction of this Court. I want to emphasise that he should not take anything that I say in deciding this matter as an indication that this Court considers questions of the custody and place of residence of children and of parents' rights in general terms to have their children with them as anything but matters of the utmost importance. 9 Despite that, Parliament, which makes, as opposed to administering, the laws, has nominated the Children's Court as a court having power over these matters and the policy adopted in this Court, where jurisdiction is shared between the two courts, is that this Court should exercise the jurisdiction only in exceptional circumstances. In particular, the jurisdiction should not become a general avenue of appeal or review of interim decisions in the Children's Court, where Parliament has deliberately provided that there should be no appeal from interim, as opposed to final, decisions of that Court. 10 In the circumstances, it is without disrespect to him that I say there is nothing in what the plaintiff has put before me that indicates a valid exceptional reason for the jurisdiction of this Court to be invoked in the instant matter. Nor do I think that there is any basis on which injunctive relief should be granted in relation to search warrants or any reason to maintain these proceedings on foot in relation to the relief that is sought concerning search warrants. In the circumstances I have concluded, on the defendant's motion, that the plaintiff's summons should be dismissed and I so order. 11 I order that the plaintiff pay the fifth defendant's costs of these proceedings. Costs are not asked for on behalf of the fourth defendant, the Commissioner of Police.