Re L [2010] NSWSC 624

New South Wales Supreme Court

CITATION : Re L [2010] NSWSC 624

HEARING DATE(S) : 4 June 2010

JUDGMENT DATE : 4 June 2010

JURISDICTION : Equity Division

JUDGMENT OF : Palmer J

EX TEMPORE JUDGMENT DATE : 4 June 2010

DECISION : Summons dismissed.

CATCHWORDS : PREROGATIVE WRITS – PARENS PATRIAE JURISDICTION – Whether extraordinary circumstances existed warranting Court's interference with proceedings in District Court under Children and Young Persons (Care and Protection) Act 1998 (NSW).

LEGISLATION CITED : Children and Young Persons (Care and Protection) Act 1998 (NSW)

CATEGORY : Principal judgment

CASES CITED : Frieda and Geoffrey, Re (2009) 40 Fam LR 608 Victoria, Re (2002) 29 Fam LR 157

Natural mother (Plaintiff) PARTIES : Department of Human Services (First Defendant) Lorraine & Kathryn Heeney (Second Defendants)

Ms L. Goodchild (Plaintiff) COUNSEL : M.W. Anderson (First Defendant) P. Braine (Second Defendants) S. Gardiner (Child)

SOLICITORS : Neisha Shepherd (Plaintiff) Department of Human Services (First Defendant)

New matter Re L

JUDGMENT – Ex tempore

4 June, 2010

1 The Plaintiff is the natural mother of a child who is presently the subject of an appeal to the District Court from a decision of the Children's Court under the Children and Young Persons (Care and Protection) Act 1998 (NSW). The Plaintiff seeks urgent relief in the form of a stay of the District Court proceedings and an order bringing into this Court of the record of those proceedings. The Plaintiff appeals to the parens patriae jurisdiction of this Court in seeking that relief. 2 I have been informed by Ms Goodchild of Counsel, who appears for the Plaintiff, of the basis of the application. I proceed on the information that Ms Goodchild has given to me, bearing in mind that the application is brought urgently and without affidavit evidence. 3 The child was apparently taken from the mother into the care of the Department of Human Services some three years ago. The mother has applied to the Children's Court for the return of the child to her. The application was dealt with by the Magistrate. That application was refused and the mother now appeals to the District Court in accordance with the rights of appeal contained in the Children and Young Persons (Care and Protection) Act. The hearing is now in train, and I am informed it is now some five days advanced before Balla DCJ. 4 The mother now comes to this Court seeking to remove the proceedings into this Court, essentially on the ground that there has been a denial of procedural fairness to the natural father of the child who, it is said, was not given the required notice of the proceedings in the Magistrate's court and of the appeal to the District Court. 5 There are two difficulties with this application. The first is that I cannot see at the moment why the mother is entitled to complain of lack of procedural fairness to another person, that is, the father. She is not agitating an injustice or denial of rights to herself – she is attempting to do so in respect of someone else. This is even more unusual in light of the fact – so I am informed by Ms Goodchild – that the natural parents are not estranged and that the father came to be aware of these proceedings some time ago but declined to participate because he lives in Cambodia, has language difficulties and was not able to afford legal representation. 6 It seems, therefore, that as a matter of reality the father has made a decision not to participate in these proceedings. In those circumstances, it is extraordinary that the mother should now seek to quash the decisions below on the basis that the father's right to notice has been ignored. 7 The second basic difficulty is that I understand that this very point has been urged before Balla DCJ. No doubt her Honour will deal with it in the course of her Honour's reasons for judgment. It would be entirely disruptive of an orderly hearing of the matter if the trial were to be interrupted after five days and brought to this Court to agitate rights of a person who is not even a party to the proceedings. 8 If there has been some injustice done or if there is some error in the decision in the District Court, then there are rights of appeal to this Court. Those rights should be pursued in an orderly fashion, rather than by interrupting proceedings in midstream. I bear in mind in this regard that there is hardly a sense of urgency in the case because, as I have noted, the child has been in the custody of carers for the past three years. There are no extraordinary circumstances in this case warranting interference by this Court in exercise of the parens patriae jurisdiction: see Re Victoria (2002) 29 Fam LR 157; Re Frieda and Geoffrey (2009) 40 Fam LR 608. 9 In those circumstances, I will make the following orders. I grant leave to file in Court the Summons in the form initialled by me and placed with the papers. I note the appearances today of various representatives on behalf of the Defendants, that is, on behalf of the Director General, Mr Anderson of counsel; on behalf of the Second Defendants, Mr Braine; and on behalf of the child, Mr Gardiner. I note that they have opposed the application. 10 The Summons is made returnable instanter and is dismissed. 11 Each party should bear its own costs. – oOo –