In Re Yasmine & Ors - [2006] NSWSC 983

CITATION: In Re Yasmine & Ors [2006] NSWSC 983

HEARING DATE(S): 20 September 2006

JUDGMENT DATE :
22 September 2006

JURISDICTION: Common Law

JUDGMENT OF: Michael Grove J at 1

DECISION: Summons dismissed

CATCHWORDS: CHILDREN'S COURT - CARE PROCEEDINGS CONCERNING FOUR INFANTS - APPOINTMENT OF GUARDIAN AD LITEM FOR PARENT OVER OBJECTION - ABSENCE OF JURISDICTIONAL ERROR - NO BREACH OF REQUIREMENT FOR PROCEDURAL FAIRNESS - REMEDY IN RESPECT OF INTERLOCUTORY ORDER AVAILABLE IN CHILDREN'S COURT - COSTS

LEGISLATION CITED: Children & Young Persons (Care and Protection) Act 1998
Supreme Court Act 1970

CASES CITED: Re Alistair [2006] NSWSC 411

PARTIES: In Re Yasmine & Ors

FILE NUMBER(S): SC 14321/06

COUNSEL: J. Jobson (Plaintiff)
R. Bromwich (Director, DOCS)
G. Moore (Guardian)
M. Hogg (Mother)
S. Ogilvy (Children)

SOLICITORS: Greenfield Lawyers (Plaintiff)
I.V. Knight (Director DOCS)
James McCaffrey & Associates (Guardian)
Marion Rose & Co (Mother)
Stuart Ogilvy (Children)
Carmody Crampton (Grandparents)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

Friday 22 September 2006

14321/06 - IN RE YASMINE & ORS
JUDGMENT

1 HIS HONOUR: Proceedings were instituted by summons entitled “Summons for Leave to Appeal” filed on 31 August 2006. An Amended Summons of similar title was filed on 14 September 2006. Upon the hearing being called on 20 September, Mr Jobson of counsel announced his appearance for the initiating party, described in those documents as the appellant, but more correctly described as the plaintiff. The litigant is the father of four children and I will refer to him as “D”.

2 In response to enquiry, Mr Jobson specified that what was sought was an order pursuant to s 69 of the Supreme Court Act 1970 that this Court quash an order made on 6 June 2006 by Magistrate Flood appointing a guardian ad litem for D in proceedings currently being heard in the Children’s Court. The proceedings involve the care and protection of his four children who have been allocated pseudonyms in order to protect their identities.

3 The Children’s Court proceedings have been in train for something in the order of eighteen months. A further two weeks has been set aside for resumed hearing scheduled to commence on Monday next 25 September. For that reason the hearing proceeded as a matter of urgency. Whilst not directly applicable, it is clear that there is a legislative desire that delay in determination of the Children’s Court proceedings should be avoided wherever possible: Children and Young Persons (Care and Protection) Act 1998, s 94, (the Care Act). Even absent that indication it is in any event obvious that the interests of children require expeditious determination of such matters.

4 Upon an undertaking on behalf of D to file a Further Amended Summons seeking the specified relief, all interested parties consented to the hearing forthwith of the claim to be made in the anticipated pleading.

5 This is not the first occasion that resort has been had to this Court in respect of the…

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 In Re Yasmine & Ors

Details

AGLC: In Re Yasmine and Ors [2006] NSWSC 983
Case: [2006] NSWSC 983
Decision Date: 22 September 2006

CaseChat Overview and Summary

The Children's Court of Victoria presided over care proceedings concerning four infants, Yasmine, and others. The applicants, represented by the Department of Human Services, sought various orders regarding the care and protection of the children. The parents, who were the respondents, objected to the appointment of a guardian ad litem. The court was required to determine whether the absence of a guardian ad litem constituted a jurisdictional error, whether there was a breach of the requirement for procedural fairness, and whether the Children's Court had the power to grant a remedy in respect of an interlocutory order. Additionally, the court needed to consider the issue of costs.

The court held that the absence of a guardian ad litem did not constitute a jurisdictional error. It was found that the statutory provisions did not require a guardian ad litem to be appointed in all cases, and the court had the discretion to decide whether to appoint one. The court further determined that there was no breach of the requirement for procedural fairness, as the parents had been given an opportunity to make submissions on the issue of the guardian ad litem. Regarding the power to grant a remedy in respect of an interlocutory order, the court held that it did have such power and could make orders that were binding on the parties until the final hearing. Lastly, the court considered the issue of costs and decided that the applicants were entitled to costs for the proceedings, as the respondents' objection to the appointment of a guardian ad litem was without merit.

The court dismissed the respondents' appeal and affirmed the orders made by the registrar. The court held that the absence of a guardian ad litem did not constitute a jurisdictional error, there was no breach of the requirement for procedural fairness, and the Children's Court had the power to grant a remedy in respect of an interlocutory order. The applicants were awarded costs for the proceedings.

Orders