DESPERATE PARENTS UNHAPPY WITH THE CHILDREN COURT’S JUDGMENT AGAINST THEM SEEK FOR THE SUPREME COURT TO HEAR THE CASE AGAIN UNDER THE COMMON LAW PARENS PATRIAE JURISDICTION

A v Secretary, Department of Communities and Justice (No. 5) [2020] NSWSC  1340 (1 October 2020)  

This case involves the plaintiff seeking to re-litigate issues where the basis of relief are already decided in previous proceedings by the Children’s Court and on appeal to the Supreme Court.

Facts:  

The defendants submitted that this proceeding is an abuse of process because the plaintiffs essentially seek the same relief in relation to D that the plaintiffs sought in their appeal under  s 91 the  Care Act  that was heard and determined adversely to the plaintiffs by Lindsay J, and in their application under  s 90  of  Care Act  in respect of which leave was refused by the Children’s Court on 20 March 2020; the plaintiffs have not appealed from the judgment of Lindsay J to the District Court from the decision of the Children’s Court on 20 March 2020.  

The defendant further contends that  the plaintiffs’ conduct in bringing this proceeding to re-litigate issues that have already been determined by Lindsay J on 20 December 2019 and by the Children’s Court on 20 March 2020, rather than availing themselves of applicable appeal processes: (a) gives rise to a risk of inconsistent findings of this Court in relation to the same issues; and (b) is vexatious or oppressive, (c) in the absence of evidence demonstrating an urgent need for this Court to exercise its exceptional  parens patriae  jurisdiction and intervene for the protection of D.  

The plaintiff’s summons seeks to attack the protection finding and orders made by Lindsay J. Plaintiffs submitted that the present and continuing emotional impact on D of the care arrangements has damaged and is continuing to damage D. That is an exceptional circumstance that warrants the exercise of the Court’s  parens patriae  jurisdiction to make the orders sought in the proposed amended summons returning D to the care of the plaintiffs.  

Issue:  

Should the court grant the application of the plaintiff which will result to the the re-litigation of issues already decided by the Children’s Court under the common law parens patriae jurisdiction?  

Law:  

• Rule 13.4 of the Uniform Civil Procedure Rules- Frivolous and vexatious proceedings  

1. If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—  

(c)the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim.  

Analysis:  

The  parens patriae  jurisdiction of the Court is an exceptional jurisdiction. Taking the plaintiffs’ evidence concerning D’s emotional state at its highest, the circumstances relied on by the plaintiffs as warranting the exercise of the Court’s  parens patriae jurisdiction are not new circumstances. As the defendants submitted, the emotional impact on D of being removed from her parents and placed into care, and of any changes to those care arrangements, are matters that are taken into account by the Children’s Court in the exercise of its specialist statutory jurisdiction concerning the care of children. Under the orders made by the Children’s Court in relation to D, and confirmed by Lindsay J, the Children’s Court is receiving reports concerning D’s progress in her foster care placement, her health and wellbeing.  Under the orders made by the Children’s Court in relation to D, and confirmed by Lindsay J, the Children’s Court is receiving reports concerning D’s progress in her foster care placement, her health and wellbeing. The Children’s Court has power under s 82 of the Care Act to review the implementation of the care plan for D. The plaintiffs also receive a copy of the reports provided to the Children’s Court. It is open to the plaintiffs to seek leave to make further applications under s 90 of the Care Act to vary or rescind the care orders made in relation to D on the basis of any significant change in relevant circumstances since the care order was made, irrespective of whether any such change relates to matters reported to the Children’s Court under s 82. 

Having carefully considered the history of proceedings relating to D, the proposed amended summons and the parties’ submissions, the court concluded that the proceeding is an abuse of process and should be summarily dismissed pursuant to UCPR r 13.4.  

The orders sought in the proposed amended summons are directly contrary to Lindsay J’s orders confirming the orders made by the Children’s Court on 23 September 2019. The orders sought by the plaintiffs in the proposed amended summons, if made, would have the effect of overriding the orders made by Lindsay J.  

Conclusion: The proceeding should be summarily dismissed pursuant to UCPR r 13.4.   

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