Re Gabriel and Fernando

[2001] NSWSC 1216

CITATION:	Re Gabriel and Fernando [2001] NSWSC 1216
FILE NUMBER(S):	SC 10870/01; 10871/01
HEARING DATE(S):
JUDGMENT DATE:	31 October 2001
PARTIES :	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 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
JUDGMENT OF:	Bell J

LOWER COURT JURISDICTION :	Children's Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :

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:	PROCEDURE - costs - Children's Court appeal
DECISION:	Plaintiffs pay the costs of the second defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

WEDNESDAY, 31 OCTOBER 2001

RE GABRIEL AND ANOR v AND TWO ORS
FERNANDO AND ANOR v AND TWO ORS

1. HER HONOUR: In this matter I note that both in matter number 10871/01, proceedings styled re Fernando, and proceedings 10870/01, proceedings styled re Gabriel, the proceedings in the Court below have been finalised. There is accordingly no utility in my granting the orders which the plaintiffs claim in their summonses, namely orders quashing in each instance the determination of the Children’s Court Magistrate. I propose making no such orders in the light of that advice.

2. In each set of proceedings, Ms Reynolds, who appears on behalf of the child, seeks costs, as does Mr McLachlan, who appears on behalf of the second defendant in the proceedings styled re Fernando. It is contended that while the plaintiff was successful in the result in that I found in each instance error of law on the face of the record such as to make it appropriate that the plaintiff be granted the relief sought in its summonses, that nonetheless, the plaintiffs had been unsuccessful on almost all issues raised by them on the hearing of the proceedings.

3. I consider there is force to that submission and that, in all the circumstances, the appropriate exercise of my discretion favours an order that the plaintiffs in each set of proceedings pay the costs of the separate representative of the child and, in the proceedings of Fernando, that the plaintiffs pay the costs of the second defendant and I so order.

Last Modified: 10/28/2009