Re Abigail and Oliver

These proceedings were commenced by summons filed on 17 March 2016 and came before the Court in the first instance before Pembroke J in the duty list. They have returned to the duty list today.

The proceedings seek to invoke the parens patriae jurisdiction of the Supreme Court in relation to two children who are currently in the care of the Secretary of the Department of Community Services, or more technically, are under the parental responsibility of the Minister pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW). The plaintiff is the mother of the children. There are currently proceedings on foot in the Children's Court at Campbelltown in relation to the children.

On 1 March 2016 an order was made in the Children's Court, described as an interim order:

The children are currently in foster care. There is no evidence of any present risk or danger to the children. Nor is there any circumstance of urgency proven in these proceedings before me so as to justify the intervention of this Court in relation to a matter which is currently before the Children's Court.

There is a well-understood reluctance on the part of the Supreme Court to exercise the parens patriae jurisdiction in relation to matters which are before the Children's Court. The approach of this Court was summarised by White J sitting in the duty list in Re Barbara & Ors [2006] NSWSC 536 at [17] to [19]:

These proceedings are brought because the mother is of the view that there has been a relevant change of circumstances, which it is not necessary for me to detail in these reasons, that she wishes to submit justify a return of the children to her. Her submissions may or may not be correct. I have not been required to consider it at all. However, the change in circumstances, both in its nature and timing, does not warrant the description of exceptional or extraordinary circumstances, as those terms have been used in the cases cited above, to warrant the interference of the Court.

I have also been informed by counsel for the plaintiff that there was some doubt as to whether or not the hearing presently fixed in the Children's Court at Campbelltown for 12 April 2016 would be a hearing or a mention. The interim order quoted in paragraph [3] above makes it clear that the order will expire at 4.00pm on 12 April 2016. It follows, as a matter of course, that in the absence of some resolution between the parties as to what is to happen after 12 April, there will have to be a hearing on 12 April in the Children's Court to determine what is to happen in relation to the care and custody of these children. Counsel for the Secretary has confirmed to me his understanding to the same effect, namely that there will be a hearing in the Children's Court on 12 April 2016.

In those circumstances this Court declines to hear the application today. Nevertheless, these proceedings having been commenced, the parties are content to adopt the Court's suggestion that these proceedings be stood over to shortly after the hearing in the Children's Court on 12 April. It may be that, as a result of that hearing, these proceedings will be rendered otiose. On the other hand, there may be still be some utility in these proceedings. That can be considered on the next occasion.

For these reasons, the Court orders that these proceedings be stood over to before the Duty Judge on 14 April 2016 at 10.00am. In addition the parties have agreed some other procedural orders which I shall make.