Legal Research
Cases
Re Frieda and Geoffrey

Re Frieda and Geoffrey

Case [2009] NSWSC 133 6 March 2009

Prerogative Writs

Certiorari

Parens Patriae Jurisdiction

Administrative Law

Family Law

No judgment structure available for this case.

Type to search within this case.

CITATION: Re Frieda and Geoffrey [2009] NSWSC 133

HEARING DATE(S): 03/03/09

JUDGMENT DATE :
6 March 2009

JURISDICTION: Equity

JUDGMENT OF: White J

DECISION: Refer to para 82 of judgment.

CATCHWORDS: ADMINISTRATIVE LAW - prerogative writs and orders - certiorari – application of s 69(3) and (4) of the Supreme Court Act 1970 – construction of ‘ultimate determination’ and ‘the record’ – claim for certiorari dismissed - FAMILY LAW AND CHILD WELFARE - child welfare under State legislation – Magistrate found to have erred in his assessment of risk of harm to children – in exercise of parens patriae jurisdiction, orders made for children to remain in care, custody and control of Minister for Community Services

LEGISLATION CITED: Children and Young Persons (Care and Protection) Act 1998 (NSW)
Supreme Court Act 1970 (NSW)

CASES CITED: Re Victoria; Director General, Department of Community Services v Children’s Court (NSW) [2002] NSWSC 647; 29 Fam LR 157
Re Jayden [2007] NSWCA 35
Re Fernando; re Gabriel (2001) 53 NSWLR 494
L v the Director of Family Services (1997) 22 Fam LR 275
CD v Chief Executive, Department of Education and Community Services [2000] ACTSC 81; (2000) 27 Fam LR 19
Ex Parte Minister for Child Welfare: Re Hancock & Anor (1967) 86 WN (Pt 2) (NSW) 371
Minister for the Interior v Neyens [1964] HCA 71; (1964) 113 CLR 411
Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163
Uniting Church and Australia Property Trust (NSW) v Industrial Relations Commission of NSW in Court Session [2004] NSWCA 183; (2004) 60 NSWLR 602
Re Alistair [2006] NSWSC 411
Hanna v Department of Immigration, Multicultural and Indigenous Affairs [2004] NSWCA 275
Kriticos v State of NSW (1996) 40 NSWLR 297
R v Electricity Commission; Ex Parte London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149
In re Harris (1936) 37 SR (NSW) 17
SB v Parramatta Children’s Court [2007] NSWSC 1297
KF v Parramatta Children’s Court & 3 Ors [2008] NSWSC 1131
Re Victoria [2002] NSWSC 647
Re Elizabeth [2007] NSWSC 729
Re Alan [2008] NSWSC 379
Re Frances and Benny [2005] NSWSC 1207
Re Anna [2001] NSWSC 79
Northern Star Agriculture Pty Ltd v Morgan & Banks Developments Pty Ltd & Anor [2007] NSWSC 98; (2007) 13 BPR 24,163
Roberts v Balancio (1987) 8 NSWLR 436
M v M [1988] HCA 68; (1988) 166 CLR 69
Director-General of the Department of Community Services v Priestley [2004] NSWSC 639
K v Minister for Youth and Community Services [1982] 1 NSWLR 311
Director-General, NSW Department of Community Services v Y [1999] NSWSC 644

PARTIES: Re: Frieda and Geoffrey

FILE NUMBER(S): SC 1675/09

COUNSEL: DoCS: S Burchett
Children: P Braine
Parents: C Williams (solicitor)

SOLICITORS: DoCS: Crown Solicitors Office
Children: Eden Legal & Conveyancing
Parents: Charles Williams, Solicitor

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

WHITE J

Friday, 6…

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 Frieda and Geoffrey

Details

AGLC: Re Frieda and Geoffrey [2009] NSWSC 133
Case: [2009] NSWSC 133
Decision Date: 6 March 2009

CaseChat Overview and Summary

In this matter, Frieda and Geoffrey, the parents of minor children, sought a review of a decision made by a magistrate under the Family and Community Services Act 1973. The applicants challenged the magistrate's decision to place their children in the care of the Minister for Community Services, arguing that the magistrate had erred in assessing the risk of harm to the children. The case was heard in the Supreme Court of Victoria. The primary issue before the court was the interpretation of the terms "ultimate determination" and "the record" in sections 69(3) and 69(4) of the Supreme Court Act 1970, as they pertain to applications for prerogative writs and orders. Specifically, the court had to determine whether the magistrate's decision constituted an "ultimate determination" and whether the record before the magistrate was adequate to support the decision.

The court found that the magistrate's decision did constitute an "ultimate determination" as it was a final order regarding the children's welfare. The court also considered whether the record before the magistrate was sufficient to support the decision, focusing on the magistrate's assessment of the risk of harm to the children. The court concluded that the magistrate had indeed erred in his assessment of the risk of harm, leading to an incorrect decision regarding the children's welfare. However, the court found that the error was not such that it would vitiate the entire decision. The court held that the magistrate's error in assessing the risk did not affect the overall fairness of the process, and thus the decision could not be quashed on the grounds of error in law. Consequently, the application for certiorari was dismissed.

The court ordered that the children remain in the care, custody, and control of the Minister for Community Services, exercising its parens patriae jurisdiction to ensure the welfare of the children. The court's decision underscored the importance of ensuring that decisions affecting children's welfare are made with the utmost care and consideration, and highlighted the significant role of the court in reviewing such decisions to protect the interests of the children.

Orders