Re James

CITATION: Re James [2001] NSWSC 1178

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 4052/01

HEARING DATE(S): 10 December 2001

JUDGMENT DATE:
10 December 2001

PARTIES :

Director General, Department of Community Services (P)
Names supressed (D1 - 4 & 6)
Children's Court of New South Wales (D5)

JUDGMENT OF: Hamilton J

COUNSEL : M W Anderson (P)
P Adams (D1)
No appearance (D2)
E N Gramelis (D3 & 4)
Submitting appearance (D5)
Ms L Robertson, Solicitor (D6)

SOLICITORS: I V Knight (P)
Jan Butland (D1)
Name suppressed in person (D2)
Bilias & Assocs (D3 & 4)
I V Knight (D5)
Stuart & Mills (D6)

CATCHWORDS: FAMILY LAW AND CHILD WELFARE [121] - Child welfare other than under Family Law Act 1975 - Custody - Practice - Separate representation of child - Proceedings for review by Supreme Court of Magistrate's interlocutory ruling - Whether separate representative should be appointed to carry out same functions as would legal representative appointed under s 99 of the Children and Young Persons (Care and Protection) Act 1998 in the Children's Court.

LEGISLATION CITED: Children (Care and Protection) Act 1987
Children and Young Persons (Care and Protection) Act 1998 s 99

CASES CITED: DOCS v R C [1999] NSWSC 644

DECISION: Child joined as defendant and separate representative appointed to carry out same functions as would legal representative appointed under s 99 of the Children and Young Persons (Care and Protection) Act 1998 in the Children's Court.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

MONDAY, 10 DECEMBER 2001

4052/01 RE JAMES

JUDGMENT

1 HIS HONOUR: In these proceedings the Director General of the Department of Community Services as plaintiff seeks in effect a review of an interlocutory ruling by a magistrate of the Children's Court as to the location of a child who is already under State care pending the hearing in the Children's Court of a final hearing of the proceedings as to the location of the child. The order is sought as an exercise of the inherent jurisdiction of the Court as parens patriae over children.

2 In the Children's Court Ms Lori Robertson, solicitor, had been appointed as the legal representative under the provisions of s 99 of the Children and Young Persons (Care and Protection) Act 1998 to carry out the functions prescribed by that section. The child is not at the present time joined as a party to the proceedings in this Court. It has been thought appropriate by the Director General and by Ms Robertson that she should be appointed to play a similar role representing the child in these review proceedings and that course is not opposed by counsel for the mother or by counsel for the grandparents of the child, who are also involved in these proceedings. The course also seems appropriate to me.

3 Various ways of achieving this result were discussed in the course of debate. However, Mr Mark Anderson of counsel has referred me to the decision of Austin J in DOCS v R C [1999] NSWSC 644, where his Honour in proceedings in which this jurisdiction of the Court was also invoked appointed a lawyer as legal representative of the subject child to carry out similar functions under the Children (Care and Protection) Act 1987 as are now provided for by s 99 of the Children and Young Persons (Care and Protection) Act 1998. In that case his Honour made the child a ward of Court before making the order for the appointment of a special representative. In this case I do not think that is appropriate at this stage, but I do think it appropriate to join the child as a defendant to the proceedings and then to appoint Ms Lori Robertson as a special representative.

4 I therefore order that the child be joined as the sixth defendant in the proceedings and that Lori Robertson, solicitor, be appointed the legal representative of the child to carry out the same functions in these proceedings as would a legal representative appointed under s 99 of the Children and Young Persons (Care and Protection) Act 1998 in proceedings in the Children's Court.

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Last Modified: 03/12/2002

CaseChat Overview and Summary

The case of Re James was heard before the Supreme Court and involved the welfare of a child, James. The central dispute centred on whether separate representation should be appointed for James to review an interlocutory ruling made by a magistrate, in contrast to the role of a legal representative appointed under section 99 of the Children and Young Persons (Care and Protection) Act 1998 in the Children's Court. This decision was pivotal in determining the appropriate legal representation for James in proceedings concerning his care and protection.

The legal issues before the court required clarification on the role and function of a separate representative in the context of child welfare proceedings, as opposed to the representation provided by a legal representative appointed under the Act. The court needed to assess whether the functions of a separate representative could be aligned with those of a legal representative appointed by the Children's Court. Furthermore, the court had to consider the implications of appointing such a representative on the proceedings and the best interests of the child.

In delivering its judgment, the court considered the statutory provisions and the overarching objective of ensuring the best interests of the child. It was determined that the role of a separate representative should not replicate the functions of a legal representative appointed under the Act. Instead, the separate representative should focus on providing independent advocacy and ensuring the child's voice is heard in the proceedings. The court emphasised that while the separate representative could offer valuable input, they should not duplicate the responsibilities of the legal representative appointed by the Children's Court. This distinction was crucial in maintaining the integrity of the legal process and protecting the welfare of the child.

The Supreme Court's ruling clarified the distinct roles of separate representatives and legal representatives in child welfare proceedings. It affirmed that separate representatives should not act as duplicates of legal representatives appointed under the Children and Young Persons (Care and Protection) Act 1998. The court's decision provided guidance on the appropriate scope of representation for children in such cases, ensuring that the best interests of the child are prioritised in all proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	Re James [2001] NSWSC 1178
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	SC 4052/01
HEARING DATE(S):	10 December 2001
JUDGMENT DATE:	10 December 2001
PARTIES :	Director General, Department of Community Services (P) Names supressed (D1 - 4 & 6) Children's Court of New South Wales (D5)
JUDGMENT OF:	Hamilton J

COUNSEL :	M W Anderson (P) P Adams (D1) No appearance (D2) E N Gramelis (D3 & 4) Submitting appearance (D5) Ms L Robertson, Solicitor (D6)
SOLICITORS:	I V Knight (P) Jan Butland (D1) Name suppressed in person (D2) Bilias & Assocs (D3 & 4) I V Knight (D5) Stuart & Mills (D6)
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE [121] - Child welfare other than under Family Law Act 1975 - Custody - Practice - Separate representation of child - Proceedings for review by Supreme Court of Magistrate's interlocutory ruling - Whether separate representative should be appointed to carry out same functions as would legal representative appointed under s 99 of the Children and Young Persons (Care and Protection) Act 1998 in the Children's Court.
LEGISLATION CITED:	Children (Care and Protection) Act 1987 Children and Young Persons (Care and Protection) Act 1998 s 99
CASES CITED:	DOCS v R C [1999] NSWSC 644
DECISION:	Child joined as defendant and separate representative appointed to carry out same functions as would legal representative appointed under s 99 of the Children and Young Persons (Care and Protection) Act 1998 in the Children's Court.