Grace and Rita - [2002] NSWSC 1

CITATION: GRACE AND RITA [2002] NSWSC 1

FILE NUMBER(S): SC 13233 of 2001

HEARING DATE(S): 12 November 2001

JUDGMENT DATE: 9 January 2002

PARTIES :

Plaintiff: Director-General Department of Community Services
First Defendant: Children's Court of New South Wales
Second Defendant: AP
Third Defendant: AW
Fourth Defendant Children's Representative

JUDGMENT OF: Hulme J at 1

LOWER COURT
JURISDICTION : Campbelltown Children's Court

LOWER COURT
FILE NUMBER(S) :

LOWER COURT
JUDICIAL OFFICER : T Lucas

COUNSEL : Plaintiff: P Lakatos

SOLICITORS: Plaintiff: IV Knight
Defendant S Hennings, Marsdens Law Group
Defendant L Goodwin Dougherty & Smith

DECISION: See paragraph 28

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
No: 13233 of 2001

Wednesday 9 January 2002
Re GRACE AND RITA

1 On 26 September 2001, the children of the second and third Defendants were removed from the care of their parents pursuant to Section 43 of the Children and Young Persons (Care and Protection) Act 1998.

2 On 27 September 2001 officers of the Department of Community Services attempted to file at the Campbelltown Children’s Court an application pursuant to the provisions of Sections 45 and 61 of the Act. The Registrar declined to accept the application on the basis of a general policy that unless an application was to be heard on the list day, such application would not be accepted.

3 On 28 September 2001 the Department lodged the application in relation to the children and it came before Mr T Lucas sitting as the Children’s Court of New South Wales.

4 His Worship determined that the application could be seen as an attempt by the Department to circumvent the requirements of an application under Part 1 of Chapter 5 of the Act. He made orders that the matter be adjourned until 3 October and that parental responsibility of the children be granted to the Minister.

5 On 2 October 2001 a further application was filed and dealt with on 3 October.

6 The substance of the application filed on 28 September was in these terms:-

FINAL ORDERS

The grounds on which it is alleged that the child/young person is in need of care and protection are
(a) the child or young person has been, or is likely to be, physically or sexually abused or ill-treated;
(b) the child or young person is suffering or is likely to suffer serious developmental impairment or serious psychological arm as a consequence of the domestic environment in which he or she is living;

Interim Orders
In addition to the final orders sought, I make application for the following interim orders:
**S.69 Interim Care Order
The Department respectfully requests that Tori and Taylisha be placed in the Director General’s care during the interim period

**S.54 Assessment of person’s capacity for parental responsibility

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Grace and Rita

Details

AGLC: Grace And RITA [2002] NSWSC 1
Case: [2002] NSWSC 1
Decision Date: 9 January 2002

CaseChat Overview and Summary

The case of Grace and Rita involves the Director-General of the Department of Community Services (Plaintiff) seeking to challenge the decisions made by the Campbelltown Children’s Court regarding the care of two children, Grace and Rita, who were removed from their parents' custody. The primary issue in this case is whether the Children’s Court Magistrate erred in the interpretation and application of sections 45 and 61 of the Children and Young Persons (Care and Protection) Act 1998. The Plaintiff argues that the Magistrate's decision to deem the application invalid and an abuse of process was incorrect, particularly in the context of the urgency and procedural requirements outlined in the Act.

The court examined the legislative framework to determine the validity of the Magistrate's concerns regarding the application. The Act requires that an application for a care order must specify the particular order sought and the grounds on which it is sought, as outlined in section 61(2). The court found that the absence of specified final orders in the application made by the Department of Community Services constituted a breach of this requirement, rendering the application invalid. Although the court acknowledged that the Magistrate’s concerns about the application's validity were well-founded, it did not find any error in the Magistrate’s handling of the application to amend or in his failure to hear the application according to law, as the subsequent proceedings made the issue academic.

Ultimately, the court ruled that the summons should be dismissed except for the first order, which was to style the proceedings "Re Grace and Rita." This decision affirms the Magistrate's interpretation of the Act and rejects the Plaintiff's claims of error in the proceedings, thereby upholding the lower court's decisions.

Orders