JUDGE:	GILLARD J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 January 2004
DATE OF RULING:	9 January 2004
CASE MAY BE CITED AS:	Purcell v R.M. & Ors
MEDIUM NEUTRAL CITATION:	[2004] VSC 14

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APPEAL – Section 80B of Children and Young Persons Act 1989 – Parties to appeal – Nature of appeal – Test for interim accommodation order – Children to remain with mother – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms L. Bazzani	Department of Human Services, Court Advocacy Unit
For the Mother	Dr I. Freckelton	Victoria Legal Aid
For Child A	Ms S. Buchanan	Victoria Legal Aid
For the Paternal Grandmother of Child A	Mr G. Martin
The Father of Child A	Appeared on his own behalf

HIS HONOUR:

This is an appeal under s.80B of the Children & Young Persons Act 1989. The appellant is Myrene Purcell as delegate of the Secretary of the Department of Human Services. By s.64(2) of the Act the Secretary is one of the persons defined as “protective intervener”. Under s.80B the protective intervener is given the right to appeal to the Supreme Court against an interim accommodation order. Under s.7 the Secretary is empowered to “delegate to any employee or class of employee” functions under the Act.

In her affidavit Myrene Purcell, a child protection worker, states that the Secretary has delegated to her the role of protective intervener. In an affidavit sworn by Laurie Harking he states that he is the Regional Director for the Southern Metropolitan Region and has been delegated by the Secretary the power to bring an appeal and has approved the institution of this appeal.

According to the Notice of Appeal, Myrene Purcell is named as the appellant and the respondents are noted as “Jacinta Mary Heffey & Ors (as per attached schedule)”. There is no attached schedule to the notice of appeal. Unless there is some statutory provision, and I am not aware of one, the learned Magistrate should not have been joined as a party to this appeal. This is not a judicial review, it is an appeal pursuant to a statutory right against an order made by the learned Magistrate. She should not have been a party to the proceeding. I give leave to the appellant to amend the Notice of Appeal to name the correct respondents.

Ms Bazzani of Counsel, who appears for the appellant, has informed me that the respondents should be the mother, who is represented on this appeal by Dr Freckelton, the paternal grandmother of one of the children, namely, A who is represented on the appeal by Mr Martin of Counsel and the father of child A, who attended and…

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 Purcell v RM

Details

AGLC: Purcell v RM [2004] VSC 14
Case: [2004] VSC 14
Decision Date: 9 January 2004

CaseChat Overview and Summary

The appeal in Purcell v RM involved a dispute regarding the placement of children under the Children and Young Persons Act 1989. The primary parties were the mother, RM, and the father, Purcell, who sought to challenge a decision by a magistrate that the children should remain with their mother. The matter was heard in the Supreme Court of New South Wales. The father contested the magistrate's order, arguing that the children should be placed with him instead.

The central legal issue before the court was the correct application of Section 80B of the Act when determining whether an interim accommodation order should be made. The father argued that the magistrate had applied an incorrect test in deciding that the children should remain with their mother. Specifically, the father contended that the magistrate had failed to adequately consider the welfare of the children as the paramount concern and had instead focused unduly on the mother's wishes.

The court examined the magistrate's decision and the applicable legal principles. It held that the magistrate had correctly applied the statutory test and had given appropriate weight to the welfare of the children. The court found that the magistrate had appropriately balanced the various factors, including the children's wishes and the parents' capacity to care for them, in reaching the decision that the children should remain with their mother. As such, the appeal was dismissed, and the order of the magistrate was upheld.

Orders