Re "Brett" - [2006] NSWSC 984

CITATION: Re - Brett v Children's Court of NSW [2006] NSWSC 984
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 17 August 2006, 18 August 2006

JUDGMENT DATE :
22 September 2006

JUDGMENT OF: Sully J at 1

DECISION: That the plaintiff be granted any extension of time necessary to permit of the hearing in this Court of the amended summons filed in Court by leave on 17 August 2006; That the order made by the first defendant on 23 February 2006 in the Children's Court sitting at Nowra be quashed; That the application of the second defendant filed on 17 February 2006 be remitted to that Children's Court there to be heard and determined accocrding to law; That the second defendant pay the costs of the plaintiff and of the third defendant of the hearing in this Court. No order as to the costs of the first defendant

LEGISLATION CITED: Children and Young Persons (Care and Protection) Act 1998 (NSW)
Judiciary Act 1903 (C'wealth) (as amended)

CASES CITED: Re Liam [2005] NSWSC 75
Re Edward (2001) 51 NSWLR 502
Collins (alias Hass) v The Queen (1975) 133 CLR 120
S v Department of Community Services (2002) 29 Fam LR 144
Anderson v The Judges of the District Court of NSW (1992) 27 NSWLR 701

PARTIES: Re "Brett"
Children's Court of New South Wales

FILE NUMBER(S): SC 11891/06

COUNSEL: I. Bourke - Plaintiff
S. Burchett - 2nd Defendant
E. Ito - 3rd Defendant

SOLICITORS: Shoalcoast Community Legal Centre - Plaintiff
I. V. Knight - 2nd Defendant
Charles Shirley - 3rd Defendant

LOWER COURT JURISDICTION: Children's Court of NSW

LOWER COURT FILE NUMBER(S): -

LOWER COURT JUDICIAL OFFICER : Coombes CCM

LOWER COURT DATE OF DECISION: 23 February 2006

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SULLY J

22 September 2006

11891/06 – RE ‘BRETT’ v CHILDREN’S COURT OF NEW SOUTH WALES

JUDGMENT

HIS HONOUR:

[NOTE: This hearing was conducted in a closed Court ]

[NOTE: An order has been made prohibiting the publication of the name of, or of any material apt to identify, the persons known in these proceedings by the pseudonyms “the mother” and “Brett” ]
Introduction

1 By an amended summons filed in Court by leave on 17 August 2006 a plaintiff who will be referred to only as “the mother” seeks the following relief:

“1. An order granting leave to commence this appeal, pursuant to Uniform Civil Procedure Rules 50.3(1)(c).

Children and Young Persons (Care and Protection) Act

3. A declaration that the learned Magistrate erred at law in his determination of an application for the granting of leave under section 90 of the Act

Particulars

a. The Magistrate erred in failing to…

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 "Brett"

Details

AGLC: Re "Brett" [2006] NSWSC 984
Case: [2006] NSWSC 984
Decision Date: 22 September 2006

CaseChat Overview and Summary

The case of Re "Brett" involves an appeal by a mother, referred to as the plaintiff, against a decision made by the Children's Court of New South Wales. The mother seeks to challenge the decision of the Children's Court Magistrate who granted leave to the Director-General of the Department of Community Services to apply for a rescission or variation of care orders in relation to her son, Brett. The legal issues in this case revolve around the interpretation and application of section 90 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) and the process of granting leave to apply for a rescission or variation of care orders.

The court found that the Children's Court Magistrate erred in his determination of the application for leave under section 90 of the Act. The Magistrate failed to properly apply the provisions of section 90(2A) of the Act, which require the consideration of various factors before granting leave. The court also found that the Magistrate failed to adequately consider the provisions of section 90(2) of the Act and did not grant an adjournment in circumstances where the child representative was not in receipt of all documents filed by the Department and had not had the opportunity to seek the child's views.

The court quashed the order made by the Children's Court Magistrate and remitted the application of the Director-General of the Department of Community Services to the Children's Court to be heard and determined according to law. The court also ordered that the Director-General pay the costs of the plaintiff and the costs of the third defendant, Brett, of the hearing in this Court.

In conclusion, the court found that the Children's Court Magistrate erred in his determination of the application for leave and that the plaintiff has established a prima facie entitlement to an order in the nature of certiorari. The court exercised its discretion to grant relief, considering the importance of ensuring compliance with the law and due procedure, and the potential for further arid, wasteful and unfocused technical debate.

Orders