GR v Secretary, Department of Family and Community Services and Justice [2019] NSWCA 177

GR v Secretary, Department of Family and Community Services and Justice [2019] NSWCA 177

The appeal was allowed because the primary judge did not ask the correct question on summary dismissal. Instead of determining whether there was an arguable case that the care being provided under the Children's Court orders was not in the child's best interests and that the Children's Court was not dealing with the matter sufficiently expeditiously, the primary judge formed his own view about the child's best interests and the undesirability of parallel Supreme Court proceedings. The procedure also failed to give the self-represented mother a proper understanding of what was required to resist summary dismissal. The material did not permit the Court of Appeal to conclude that the...

Jurisdiction
Australia
Judgment Date
18 July 2019
Procedural Posture
Application for Leave to Appeal and Appeal From Summary Dismissal of Amended Summons Invoking the Supreme Court's Parens Patriae Jurisdiction in Relation to an Interim Care Order / Court of Appeal Determination of Leave to Appeal and Appeal From Order Made in the Equity Division on 24 June 2019
Outcome
Leave to appeal granted; appeal allowed; order dismissing the amended summons set aside; first and second respondents ordered to pay the applicant's costs in the Court of Appeal.
Legal Topics
['parens Patriae Jurisdiction' 'interim Care Order' 'parental Responsibility' 'summary Dismissal' 'self Represented Litigants' "children's Court Proceedings" 'medical Treatment of Child']
['family Law' 'child Protection' 'civil Procedure' 'equity'] ['parens Patriae Jurisdiction' 'interim Care Order' 'parental Responsibility' 'summary Dismissal' 'self Represented Litigants' "children's Court Proceedings" 'medical Treatment of Child']

Case Brief

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Procedural Posture

Application for Leave to Appeal and Appeal From Summary Dismissal of Amended Summons Invoking the Supreme Court's Parens Patriae Jurisdiction in Relation to an Interim Care Order / Court of Appeal Determination of Leave to Appeal and Appeal From Order Made in the Equity Division on 24 June 2019

Legal Issues

  1. 1 ["Whether the mother's amended summons seeking to set aside or supersede an interim care order and return the child to her care should have been summarily dismissed." 'Whether the primary judge adopted a fair and appropriate procedure when requiring a self-represented mother to show cause why her proceedings should not be dismissed.' "Whether the primary judge asked the correct question, namely whether there was an arguable case for intervention in the Supreme Court's parens patriae jurisdiction." "Whether the existence of ongoing Children's Court proceedings made the Supreme Court proceedings an abuse of process or otherwise contrary to the child's best interests."]

Ratio Decidendi

The appeal was allowed because the primary judge did not ask the correct question on summary dismissal. Instead of determining whether there was an arguable case that the care being provided under the Children's Court orders was not in the child's best interests and that the Children's Court was not dealing with the matter sufficiently expeditiously, the primary judge formed his own view about the child's best interests and the undesirability of parallel Supreme Court proceedings. The procedure also failed to give the self-represented mother a proper understanding of what was required to resist summary dismissal. The material did not permit the Court of Appeal to conclude that the...

Court Disposition

Leave to appeal granted; appeal allowed; order dismissing the amended summons set aside; first and second respondents ordered to pay the applicant's costs in the Court of Appeal.

Orders

  • ['Grant the mother leave to appeal from order (1) made in the Equity Division on 24 June 2019 dismissing the amended summons filed on 17 May 2019.' 'Treat the draft notice of appeal dated 1 July 2019 as filed in this proceeding.' 'Allow the appeal and set aside order (1) made on 24 June 2019.' "Order that the first...