Re: Andrew

[2004] NSWCA 210

CITATION:	RE: ANDREW [2004] NSWCA 210 revised - 5/07/2004
HEARING DATE(S):	4 June 2004
JUDGMENT DATE:	24 June 2004
JUDGMENT OF:	Mason P at 1; Sheller JA at 6; McClellan AJA at 29
DECISION:	Appeal allowed and the order of O'Keefe J of 26 February 2004, that the father be joined as a party in the proceedings and be served with the summons, be set aside.
CATCHWORDS:	WELFARE OF CHILD - joinder of father to Supreme Court proceedings - where real risk to safety of mother and child - Children and Young Persons (Care and Protection) Act 1988 - natural justice - proper contradictor - where question in Supreme Court was one of law - whether service would pre-empt decision of Children's Court
LEGISLATION CITED:	Child Welfare Act 1939 Children and Young Persons (Care and Protection) Act 1998
CASES CITED:	J v Lieschke (1987) 162 CLR 447 Pochi v Minister for Immigration and Ethnic Affairs (1979) 35 FLR 482 R v Bell; ex parte Lees (1980) 146 CLR 141 Separate Representative v E (1993) 114 FLR 1 Twist v Randwick Municipal Council (1976) 136 CLR 106
PARTIES :	Minister for Community Services Children's Court of New South Wales
FILE NUMBER(S):	CA 40143/04
COUNSEL:	R Bourke - First and Second Appellants N/A - First Respondent J Viney - Second Respondent M Cleary/K Renshall - Third Respondent
SOLICITORS:	I V Knight - Crown Solicitor - First and Second Appellants Children's Court of NSW - First Respondent Richard Parkinson - Second Respondent Kathryn Renshall - Third Respondent

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	10423/04
LOWER COURT JUDICIAL OFFICER :	O'Keefe J

CA 40143/04
SC 10423/04

MASON P
SHELLER JA
McCLELLAN AJA

RE ANDREW

In November 2003, the Director General of the Department of Community Services made a care application under the Children and Young Persons (Care and Protection) Act 1998 (“the Act”) in respect of a child, referred to as ‘Andrew’. The Children’s Court on 5 December 2003 directed that the Director General file and serve an affidavit of service or attempted service upon the father. In response, the Director General filed an affidavit which set out evidence supporting the proposition that service, or attempted service, upon the father in relation to the care application would place at risk the safety and well-being of the mother and Andrew.

After considering submissions from the Director General on the issue, the Children’s Magistrate handed down a written judgment on 30 January 2004, the effect of which was to refuse the Director General’s application to dispense with service on the father on the grounds that there was no power on the part of the Children’s Court to grant such an application. Significantly, the Children’s Magistrate held that it was unlikely that the father had a genuine interest in the child’s welfare and that there was a real risk that any order which enabled the father to be in contact with the child’s mother would place her, and possibly also the child, at risk.

By…