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Re Alistair

Re Alistair

Case [2006] NSWSC 411 12 May 2006

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CITATION: Re Alistair [2006] NSWSC 411
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 21/04/06
24/04/06
28/04/06

JUDGMENT DATE :
12 May 2006

JURISDICTION: Common Law Division

JUDGMENT OF: Kirby J

DECISION: (1) By consent, orders made on 24 April 2006 vacated; (2) The Summons is dismissed; (3) The Director-General should pay the costs of each of the other parties.

CATCHWORDS: Appeal against Magistrate's ruling - whether finding that child needs care can be re-examined - whether res judicata or issue estoppel - issues in Children's Court proceedings - establishment and welfare stages - whether error in discretion - whether remedy - certiorari - whether jurisdictional error or error on face of record - only ultimate determination.

LEGISLATION CITED: Children and Young Persons (Care and Protection) Act 1998
Farmily Law Act 1975 (Cth)
The Children Act 1989 (UK)
Supreme Court Act 1970

CASES CITED: In Re B (Minors) (Care Proceedings: Issue Estoppel) (1997) 3 WLR 1
In Re O & Anor (Minors) (Care: Preliminary Hearing) (2003) 2 WLR 1075
Re Fernando & Gabriel (2001) 53 NSWLR 494
Blair v Curran (1939) 62 CLR 464
Director-General, Department of Community Services v Dessertaine (2003) 31 FamLR 55
Acuthan v Coates (1986) 6 NSWLR 472
Director-General NSW Department of Community Services re Peter [2002] NSWSC 679
M v M (1988) 166 CLR 69
House v The King (1936) 55 CLR 499
Craig v South Australia (1995) 184 CLR 163
Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147
ASIC v Farley (2001) 51 NSWLR 494
DIMIA v Hanna [2004] NSWCA 275
Hargrave v Slater (2000) 113 A Crim R 371
R v Northumberland Compensation Tribunal; Ex Parte Shaw [1952] 1 KB 338
Plaintiff S157/2005 v Commonwealth of Australia (2003) 211 CLR 476
Re Refugee Review Tribunal; Ex Parte Aala (2000) 204 CLR 82
Uniting Church in Australia Property Trust (NSW) v Industrial Relations Commission of NSW in Court Session (2004) 60 NSWLR 602
Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246

PARTIES: (Pl/Appl) Dept of Community Services
(1st Def/1st Resp) The father
(2nd Def/2nd Resp) The mother
(3rd & 4th Defs/3rd & 4th Resps) The children
(5th Def/5th Resp) Children's Court of NSW

FILE NUMBER(S): SC 2006/11737

COUNSEL: (Pl/Appl) R J Bromwich
(1st Def/1st Resp) R M Sweet
(2nd Def/2nd Resp) M J Hogg
(3rd & 4th Defs/3rd & 4th Resps) S W Ogilvy, sol
(5th Def/5th Resp) Not Represented

SOLICITORS:
(Pl/Appl) I V Knight
(1st Def/1st Resp) Mitchell Lawyers
(2nd Def/2nd Resp) Marion Rose & Co.
(3rd & 4th Defs/3rd & 4th Resps) Garden & Montgomerie
(5th Def/5th Resp) Not Represented

LOWER COURT JURISDICTION: Children's Court of New South Wales

LOWER COURT FILE NUMBER(S): 3/2005
4/2005
5/2005
6/2005

LOWER COURT JUDICIAL OFFICER : Flood LCM

LOWER COURT DATE OF DECISION: 02/27/2006

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

David Kirby J

Friday 12 May 2006

(2006/11737) Re Alistair

JUDGMENT

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 Re Alistair

Details

AGLC: Re Alistair [2006] NSWSC 411
Case: [2006] NSWSC 411
Decision Date: 12 May 2006

CaseChat Overview and Summary

The case of Re Alistair involved an appeal against a decision made by a magistrate in the Children's Court, concerning the welfare and care of a child named Alistair. The appeal raised questions about the ability to re-examine the magistrate's determination that the child needed care and the applicability of principles such as res judicata and issue estoppel within the context of Children's Court proceedings. The appeal focused on whether there was an error in the magistrate's discretion during the establishment and welfare stages, and if so, whether a remedy such as certiorari was available.

The legal issues central to this case revolved around the scope of judicial review in Children's Court proceedings and the extent to which past findings of fact or law could be revisited. Specifically, the court had to determine whether the magistrate's determination that the child needed care could be re-examined, and whether principles like res judicata or issue estoppel applied to prevent this. Additionally, the court needed to assess whether any error in the magistrate's discretion warranted a remedy, and if such a remedy should be granted through certiorari.

The court found that the magistrate's determination was not subject to re-examination due to the binding nature of findings made during the establishment and welfare stages. The court held that principles of res judicata and issue estoppel applied, preventing the re-examination of past findings unless there was a clear jurisdictional error or an error on the face of the record. The court concluded that the magistrate's discretion was not erroneous and that any error did not reach the threshold of being an error on the face of the record or a jurisdictional error. Consequently, the court dismissed the appeal.

The final orders of the court were that the appeal against the magistrate's ruling was dismissed, and no remedy such as certiorari was granted. The determination that the child needed care remained in place, and the findings of the magistrate were upheld. The court's decision underscored the importance of the binding nature of findings in Children's Court proceedings and the limited scope for judicial review in such cases.

Orders