Re Benji and Perry [2018] NSWSC 1750

Supreme Court New South Wales

Medium Neutral Citation: Re Benji and Perry [2018] NSWSC 1750 Hearing dates: 18 October 2018 Date of orders: 18 October 2018 Decision date: 14 November 2018 Jurisdiction: Equity Before: McDougall J Decision: Summons dismissed. No order as to costs. Catchwords: CHILDREN – parens patriae jurisdiction – application in effect to prevent implementation of orders made by the Children's Court – where Children's Court ordered that children the subject of the application be returned to their carers – where Department contends that this would pose an unacceptable risk of harm – whether there is an unacceptable risk of harm – necessary to balance possibility of harm if children are returned with probability of harm if they are not – application dismissed. Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW) Evidence Act 1995 (NSW) Family Law Act 1975 (Cth) Supreme Court Act 1970 (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Coulton v Holcombe (1986) 162 CLR 1 Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34 Johnson v Page [2007] FamCA 1235 M v M (1988) 166 CLR 69 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Re Benji and Perry [2018] NSWSC 1594 Re Frances and Benny [2005] NSWSC 1207 Re Liam (2005) 33 Fam LR 86 Re M (No 4) [2013] NSWCA 97 Re Tanya [2016] NSWSC 794 Rolleston v Insurance Australia [2017] NSWCA 168 Wesiak v D&R Constructions (Aust) Pty Ltd [2016] NSWCA 353 Category: Principal judgment Parties: Secretary of the NSW Department of Family and Community Services (Plaintiff) The Children's Court of New South Wales (First Defendant) Mr and Mrs Thompson (Second Defendants) Representation: Counsel: M Anderson (Plaintiff)