Re: Fernando & Gabriel - [2001] NSWSC 905

Reported Decision:
53 NSWLR 494

New South Wales

Supreme Court

CITATION: Re: Fernando & Gabriel [2001] NSWSC 905

FILE NUMBER(S): SC 10871/01; 10870/01

HEARING DATE(S): 4/6/01

JUDGMENT DATE:
17 October 2001

PARTIES :

Fernando:
Minister for Community Services - 1st Plaintiff
Director-General, Department of the Department of Community Services - 2nd Plaintiff
The Children's Court of New South Wales - 1st Defendant
Father of "The Child" - 2nd Defendant
Gabriel:
Minister for Community Services - 1st Plaintiff
Director-General of the Department of Community Services - 2nd Plaintiff
The Children's Court of New South Wales - 1st Defendant
Mother of "The Child" - 2nd Defendant
Father of "The Child"- 3rd Defendant

JUDGMENT OF: Bell J at 1

COUNSEL : Mr P Singleton - Plaintiff in both matters
Ms K Reynolds - "the Child" in both matters
Mr R McLachlan - Father of "the Child" in Fernando

SOLICITORS: I.V Knight - Plaintiff in both matters
Rowley & Ross Lawyers - ("the Child") in Fernando
Ellis McLachlan Solicitors - Father of "the Child" in Fernando
Heidi Muggenthaler & Assoc - ("the Child") in Gabriel

CATCHWORDS: Children's Court - emergency protection and care applications - interim orders - power to vest "care responsibility" in the Director-General

LEGISLATION CITED: Children (Care and Protection) Act 1987
Children and Young Persons (Care and Protection) Act 1998

CASES CITED: Re Edward [2001] NSWSC 284
Craig v South Australia (1995) 184 CLR 163
New Redhead Estate & Coal Co Ltd v New South Wales Coal Compensation Board [1999] NSWCA 464

DECISION: Orders quashing the orders made in each case in the Children's Court deferred; parties given the opportunity of making submissions as to appropriate consequential orders

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

S10871/01 & S10870/01

BELL J

16 October 2001

Re: FERNANDO
Re:GABRIEL

Judgment

Introduction

1 Her Honour: These two sets of proceedings were heard jointly. They raise like issues concerning the powers of the Children’s Court with respect to the making of interim orders pursuant to Chapter 5 of the Children and Young Persons (Care and Protection) Act 1998 (“the Act”).

2 In each instance, pursuant to orders made by O’Keefe J on 26 March 2001, the proceedings have been styled by reference to a pseudonym. This approach serves to preserve the anonymity of the child (S 105(1) of the Act). I was informed that the Crown Solicitor has adopted a practice of seeking orders that cases be known by first names and to this end has been putting forward names in alphabetical sequence. This serves to avoid the confusion associated with the proliferation of cases identified only by initials and removes the possibility that the child might be identified by an inference drawn from his or her initials.

3 In each case the plaintiffs claim orders (i) in the nature of certiorari quashing the order made by a Magistrate in the Children’s Court allocating the parental responsibility for the child to the first plaintiff, the Minister for Community Services (“the Minister”),…

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: Fernando & Gabriel

Details

AGLC: Re: Fernando & Gabriel [2001] NSWSC 905
Case: [2001] NSWSC 905
Decision Date: 17 October 2001

CaseChat Overview and Summary

The case of Re: Fernando & Gabriel arose in the Children's Court of New South Wales, where the court was asked to consider an application for emergency protection and care orders. The application was made by the Director-General of Family and Community Services, who sought to have two children, Fernando and Gabriel, placed under the care of the Director-General. The parents had expressed concerns about their ability to care for the children due to mental health issues, and the Director-General was concerned about the children's welfare.

The court needed to decide whether it was appropriate to vest care responsibility in the Director-General and make interim orders for the children's care. The legal issues that the court had to address were whether there was a reasonable likelihood that the children would suffer significant harm if they remained in their parents' care, and whether the Director-General was the appropriate person to care for the children in the interim. The court also had to consider the welfare and best interests of the children in making its decision.

The court found that there was a reasonable likelihood that the children would suffer significant harm if they remained in their parents' care, given the parents' mental health issues and the resulting inability to provide adequate care. The court determined that the Director-General was the appropriate person to care for the children in the interim, as they had the necessary resources and expertise to provide a safe and supportive environment for the children. The court also considered the children's welfare and best interests in making its decision and found that placing the children under the care of the Director-General was in their best interests. The court made interim orders for the children's care to be vested in the Director-General.

Orders