Supreme Court New South Wales Medium Neutral Citation: JG v Secretary, Department of Family and Community Services [2017] NSWSC 1821 Hearing dates: 28 December 2017 Date of orders: 28 December 2017 Decision date: 28 December 2017 Jurisdiction: Common Law Before: Davies J Decision: Summons dismissed. Catchwords: ADMINISTRATIVE LAW – prerogative relief – appeal against order of the Children's Court – no appeal lies to the Supreme Court – interim order by Children's Court placing child under parental responsibility of the Minister – order permitting carers to take child on holidays to Canada – order opposed by natural parents – no error of law demonstrated – summons dismissed Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW) Family Law Act 1975 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Category: Principal judgment Parties: JG (First Plaintiff) BM (Second Plaintiff) Secretary, Department of Family and Community Services (Defendant) Representation: Counsel: JG and BM (First and Second Plaintiffs) (in person) J Wong (Defendant) Solicitors: Self-represented (First and Second Plaintiffs) Crown Solicitors Office (Defendant) File Number(s): 2017/392075 Publication restriction: Nil Judgment 1. The plaintiffs are the natural parents of a child, IG, who by an interim order of the Parramatta Children's Court made on 1 March 2017 was placed under the parental responsibility of the Minister pending further order. The child has since been generally under the responsibility of an organization called Key Assets and has been in the care of a family for some period during this year. 2. On the 15th of December 2017 the Children's Court at Parramatta made the following orders: 1. The Court permits the child [IG] born … July 2012 to travel to Canada for the purpose of a holiday with the authorised carers between the dates of 29 December 2017 and 11 January 2018. 2. The Court permits the Secretary, Department of Family and Community Services or his delegate in the exercise of the parental responsibility allocated to the Minister for Family and Community Services by order of this Court on 1 March 2017 to make an application to the Passports Office under the Australian Passports Act 2005 on behalf of the child, for the purpose of obtaining an Australian passport for the purposes of the child undertaking travel as outlined in Order 1. 1. The plaintiffs by an urgent application seek to file a summons commencing an appeal pursuant to Part 50 Uniform Civil Procedure Rules 2005 (NSW). The orders against which the appeal is purportedly brought are orders said to be made on 28 March 2017 (I note that is probably an error for 1 March 2017) and 16 December 2017 (which is a probably an error for 15 December 2017). The plaintiffs seek to appeal from the whole of the decision below and seek orders that the child IG be returned immediately to the mother with compensation being paid for every day that the child has been in the care of the Minister. 2. A summons under Part 50 is misconceived because there is no appeal to this Court from the Children's Court. Any right of appeal is under s 91 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) and is an appeal to the District Court. However, no appeal is available from an interim order in any event: (S 91(1)). 3. The only basis upon which an application can be made to this Court is an application for prerogative relief. For that to be successful the plaintiffs would have to show at a minimum that there was an error of law on the face of the record. 4. Any such application would be well out of time in respect of the order made 1 March 2017 and leave would be necessary in that regard. Furthermore, that would not be an application that was appropriate to be dealt with in court vacation time. No urgency is shown nor is there any explanation for the delay. Accordingly, the only matter I shall consider is the order made by the Children's Court on the 15th of December 2017 and I shall regard the summons as in fact seeking prerogative relief. 5. I attempted to obtain from the plaintiffs what error of law was said to be made by the magistrate in the Children's Court. I note in that regard that the first plaintiff asserted that she was a law student who had studied Administrative Law, and was hoping to sit the Bar Exams next year. 6. The plaintiffs submitted that no notice was appropriately given to them about the application that was before the Children's Court. However, an affidavit from the child protection caseworker relied upon in the Children's Court identifies that on the 12th of December the first plaintiff, the mother of the child was spoken to and notified of the application. The affidavit also refers to attempts made to notify the father. In the result the mother was represented by a solicitor at the hearing before the Children's Court and I am told that a solicitor was present for the father but for some reason was outside the Court because it was said that the matter was not called or was not appropriately called. There is no evidence of these matters - statements were simply made from the Bar Table. However, the first plaintiff accepts that her solicitor was present in court at the time of the hearing and when the orders were made. 7. Vague allegations were made that the orders should not have been made because of sexual misconduct towards the child by the carers who sought the orders. These allegations of sexual misconduct must have been made at an earlier time also because an earlier affidavit by the same caseworker sworn on 6 December 2017 says this: 40. As indicated in my affidavit on 26 September 2017, Key Assets conducted a reportable conduct investigation in relation to the allegations of sexual abuse made by the mother to the NSW Police on 21 July 2017. Family and Community Services has been informed by Key Assets that the State Operations Manager who conducted the investigation made a finding of false allegations and the allegations were not substantiated. 1. In any event, such allegations concern the merits of the application before the Children's Court. They do not constitute an error of law on the face of the record nor jurisdictional error. 2. It was submitted that under the Family Law Act 1975 (Cth) no order of the type made on 15 December could be made if there was in place nothing more than an interim order made 1 March. However, the proceedings in the Children's Court were not under the auspices of the Family Law Act. No basis was shown for suggesting that the orders of 15 December were without power under the Children and Young Persons (Care and Protection) Act because only an interim order of responsibility had been made. 3. It is quite apparent that the parents of the child have natural concerns for the welfare of the child, and concerns that the child is being taken a long way from Australia, it is said, particularly in the present times when terrorism is rife in many parts of the world and the child is in any event so young. She was born in July 2012 and is only aged now about five and a half years. However, apart from these general concerns that the parents have about the welfare of the child, no error of law or administrative error of any sort is demonstrated. This Court has no other jurisdiction to grant relief and in the circumstances the application must be refused. 4. Accordingly, the summons is dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 December 2017