Re Cameron - [2012] NSWSC 1453

Supreme Court

New South Wales

Medium Neutral Citation: Re Cameron [2012] NSWSC 1453
Hearing dates: 23 November 2012
Decision date: 23 November 2012
Before: Young AJ
Decision:
Summons Dismissed

Catchwords: JUDICIAL REVIEW - certiorari - construction of s 44 Children and Young Persons (Care and Protection) Act 1998 - application of s 69 (3) and (4) Supreme Court Act 1970 - whether the magistrate considered s 70A Children and Young Persons (Care and Protection) Act 1998
Legislation Cited: Children and Young Persons (Care and Protection) Act 1998
Supreme Court Act 1970
Cases Cited: M v M [1988] HCA 68; (1988) 166 CLR 69
Re Louise and Belinda [2009] NSWSC 534 Re Tracey [2011] NSWCA 43
Re Alistair [2006] NSWSC 411
Re Frieda and Geoffrey [2009] NSWSC 133
Category: Principal judgment
Parties: Cameron's mother (First Plaintiff)
Cameron's father (Second Plaintiff)
Director General, Department of Family and Community Services (First Defendant)
Minister for Family and Community Services (Second Defendant)
Children's Court of New South Wales, Campbelltown (Third Defendant)
Cameron (Fourth Defendant)
Representation: Counsel:
P R Glissan (First and Second Plaintiffs)
G W Moore (First and Second Defendants)
E Boyle (Fourth Defendant)
Solicitors:
Crown Solicitor (First, Second and Third Defendants)

File Number(s): 2012/255802

EX TEMPORE Judgment

HIS HONOUR: This is an application for certiorari in respect of a very young child, a child who was born in August of this year. The child who will be referred to as Cameron (not his real name) is the son of a married couple who are the plaintiffs. I will refer to them as Cameron's mother and Cameron's father.

Cameron's mother has had a sad history. Amongst other problems she has had is that she was living with a man, Mr H, by whom she had three children. Mr H, it would appear, interfered with one of the female children. She left Mr H and now lives with Cameron's father and, indeed, has married him.

The relevant government department, of which the first respondent is the Director General, and the second respondent, the relevant minister, was very concerned with the three children of Cameron's mother's former relationship and was not at all happy with the way in which Cameron's mother was caring for them. When it was apparent that Cameron was on his way, the Department took a special interest in her.

When Cameron was born the case worker employed by the respondents was concerned with Cameron's well-being and issued some directions called a Care Plan. These directions she contends, Cameron's mother was not keeping and the prime problems in the case worker's eyes were that Cameron's mother was not getting up at night to attend to the feeding of the baby or to change his nappy regularly. The case worker initially told Cameron's mother that she was not making any direction with respect to taking Cameron out of his parents' care, but after coming to the view that the mother's conduct in not feeding the baby regularly at night and not changing his nappy…

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 Cameron

Details

AGLC: Re Cameron [2012] NSWSC 1453
Case: [2012] NSWSC 1453
Decision Date: 23 November 2012

CaseChat Overview and Summary

The case of Re Cameron involved an application for judicial review seeking certiorari in relation to a decision made under the Children and Young Persons (Care and Protection) Act 1998. The applicant, who was a parent, challenged the magistrate's decision to continue a care and protection order concerning their child. The case was heard by the Supreme Court of New South Wales, which was required to interpret and apply relevant sections of the Act, including s 44, s 70A, and s 69(3) and (4) of the Supreme Court Act 1970.

The central legal issues before the court were whether the magistrate had considered the appropriate criteria for making a care and protection order under s 44 of the Act and whether the magistrate had properly applied s 70A in reaching their decision. The court had to determine if the magistrate had failed to consider relevant factors, had applied the wrong legal test, or had made an error of law in their interpretation of the Act. This involved a careful examination of the magistrate's reasoning and the evidence presented in the case.

The court found that the magistrate had indeed failed to consider s 70A of the Act, which requires the court to have regard to the child's welfare as the paramount consideration. This oversight constituted a material error of law, leading to the quashing of the magistrate's decision. The court held that the magistrate's failure to properly apply the statutory criteria meant that the decision was not only legally flawed but also did not adequately reflect the welfare of the child. As a result, the application for certiorari was granted, and the original decision was set aside.

The court issued orders for the matter to be remitted back to the Children's Court for reconsideration in light of the Supreme Court's findings. This included a direction that the Children's Court properly apply the statutory criteria and consider all relevant factors, including those outlined in s 70A of the Act. The case underscores the importance of judicial officers ensuring that all relevant legal principles are properly applied when making decisions under the Children and Young Persons (Care and Protection) Act 1998.

Orders