Fernando by his Tutor Ley v Commonwealth of Australia & Anor

The applicants, Fernando (by his tutor Ley) and the Commonwealth of Australia and another respondent, brought proceedings before the High Court of Australia. The dispute concerned the alleged failure of the respondents to provide adequate care and protection to Fernando, a child who had been placed in the care of a foster family by the Northern Territory government. Fernando suffered severe injuries while in foster care, and the applicants sought damages for negligence.

The High Court was required to determine whether the Commonwealth owed a duty of care to Fernando in relation to the provision of child protection services, and if so, whether that duty had been breached. Specifically, the court considered the scope of the Commonwealth's responsibility for child protection services, particularly in light of the division of powers between the Commonwealth and the Northern Territory governments. The central legal question was whether the Commonwealth could be held vicariously liable for the alleged negligence of Northern Territory public servants involved in child protection.

The Court ultimately held that the Commonwealth did not owe a duty of care to Fernando. The majority reasoned that the Commonwealth's involvement in child protection services in the Northern Territory was limited and did not extend to assuming direct responsibility for the day-to-day management and supervision of individual children in foster care. The Court emphasised the constitutional division of powers, noting that child protection was primarily a state and territory responsibility. The Commonwealth's role was found to be one of funding and policy development, rather than direct operational control, and therefore it could not be held liable for the alleged failures of the Northern Territory government. The appeal was dismissed.