GR v Secretary, Department of Family and Community Services and Justice [2020] NSWSC 348

GR v Secretary, Department of Family and Community Services and Justice [2020] NSWSC 348

Leave was refused because the material provided by the mother did not establish a proper urgent basis for the Duty List to entertain the proposed application. The medical reports did not support the immediate return of the child to the mother's care to avoid COVID-19 or for any other reason, much of the mother's evidence was inadmissible, and the Children's Court was the appropriate forum to determine the complex care and permanency issues after hearing extensive evidence. The existing orders were varied to protect the proper functioning of the Duty List by requiring written medical evidence where urgent medical necessity is asserted.

Jurisdiction
Australia
Judgment Date
02 April 2020
Procedural Posture
Application for Leave to Make an Urgent Interlocutory Application in the Duty List Concerning the Court's Parens Patriae Jurisdiction / On the Papers
Outcome
Application for leave refused; prior orders varied.
Legal Topics
['interlocutory Applications in the Duty List' 'leave Required Before Filing Notice of Motion' 'urgent Medical Necessity' 'covid 19 Risk to Child in Care' "children's Court Care Proceedings" 'abuse of Duty List Process']
['civil Procedure' 'equity' 'care and Protection' 'parens Patriae Jurisdiction'] ['interlocutory Applications in the Duty List' 'leave Required Before Filing Notice of Motion' 'urgent Medical Necessity' 'covid 19 Risk to Child in Care' "children's Court Care Proceedings" 'abuse of Duty List Process']

Case Brief

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Procedural Posture

Application for Leave to Make an Urgent Interlocutory Application in the Duty List Concerning the Court's Parens Patriae Jurisdiction / On the Papers

Legal Issues

  1. 1 ['Whether the mother should be granted leave to apply in the Duty List for orders returning the child forthwith to her care and restraining removal without leave of the Court.' "Whether the asserted COVID-19 risk created an urgent medical necessity justifying intervention by the Supreme Court before completion of the Children's Court proceedings." 'Whether the existing procedural orders regulating further urgent Duty List applications should be varied to require medical evidence where urgency is based on medical necessity.']

Ratio Decidendi

Leave was refused because the material provided by the mother did not establish a proper urgent basis for the Duty List to entertain the proposed application. The medical reports did not support the immediate return of the child to the mother's care to avoid COVID-19 or for any other reason, much of the mother's evidence was inadmissible, and the Children's Court was the appropriate forum to determine the complex care and permanency issues after hearing extensive evidence. The existing orders were varied to protect the proper functioning of the Duty List by requiring written medical evidence where urgent medical necessity is asserted.

Court Disposition

Application for leave refused; prior orders varied.

Orders

  • ['Application by the plaintiff for leave to apply for the relief sought in pars 1 to 3 of the draft notice of motion provided by the plaintiff to the Court on 20 March 2020 in the Duty List is refused.' 'Order that the orders made by Kunc J on 18 March 2020 be varied by adding the following sub-order to order (2):...