Re M (No 4) - BM v Director-General, Department of Family and Community Services (named Department of Community Services in Summons) [2013] NSWCA 97

Re M (No 4) - BM v Director-General, Department of Family and Community Services (named Department of Community Services in Summons) [2013] NSWCA 97

Applicant failed to establish exceptional circumstances justifying intervention under the Court's parens patriae jurisdiction; allegations regarding children's safety in father’s care had been considered and rejected in prior proceedings; no sufficient basis on urgency or merits to restrain restoration of children to father; interlocutory relief sought does not fall within jurisdiction of the Court in the circumstances.

Parties
Applicant: BM; First Defendant: Director-General, Family & Community Services; Second Defendant: MB; Third Defendant: MS; Fourth Defendant: RM; Fifth Defendant: HM; Sixth Defendant: ZM
Jurisdiction
Australia
Judgment Date
29 April 2013
Procedural Posture
Interlocutory Application / Application for Urgent/interim Interlocutory Relief; Ex Tempore Judgment Dismissing Application
Outcome
Application for interlocutory relief dismissed.
Legal Topics
Parens Patriae Jurisdiction, Injunctive Relief in Relation to Child Custody, Restoration of Children to Parental Care, Interim/interlocutory Relief, Judicial Review, Natural Justice
Equity Children's Law Parens Patriae Jurisdiction Injunctive Relief in Relation to Child Custody Restoration of Children to Parental Care Interim/interlocutory Relief Judicial Review Natural Justice

Case Brief

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Parties

BM

Applicant

Director-General, Family & Community Services

First Defendant

MB

Second Defendant

MS

Third Defendant

RM

Fourth Defendant

HM

Fifth Defendant

ZM

Sixth Defendant

Procedural Posture

Interlocutory Application / Application for Urgent/interim Interlocutory Relief; Ex Tempore Judgment Dismissing Application

Legal Issues

  1. 1 Whether the Court should exercise parens patriae jurisdiction to grant interlocutory relief restraining restoration of children to their father's custody
  2. 2 Whether exceptional circumstances justify intervention by the Court
  3. 3 Whether any jurisdiction exists for the orders sought regarding contact with ZM

Ratio Decidendi

Applicant failed to establish exceptional circumstances justifying intervention under the Court's parens patriae jurisdiction; allegations regarding children's safety in father’s care had been considered and rejected in prior proceedings; no sufficient basis on urgency or merits to restrain restoration of children to father; interlocutory relief sought does not fall within jurisdiction of the Court in the circumstances.

Court Disposition

Application for interlocutory relief dismissed.

Orders

  • Dismiss the application by BM for interlocutory orders to restrain RM and HM being restored into the care of their father or the exercise by the second defendant of his parental custodial rights as ordered by the District Court.
  • Direct that the proceedings be listed before the Registrar in Court of Appeal for directions in two weeks.