Re Josie

Case [2004] NSWSC 642 9 July 2004

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CITATION: RE JOSIE [2004] NSWSC 642

HEARING DATE(S): 9 July 2004

JUDGMENT DATE:
9 July 2004

JUDGMENT OF: Levine J

DECISION: 1. The preoceedings are to be known as "Re Josie".; 2. The plaintiff is excused from naming the father of the child as a defendant.; 3. I make the declaration in para 1 of the summons filed 18 June 2004.; 4. The order set out in para 2 of the summons is quashed.; 5. No order as to costs.

CATCHWORDS: Children's Court - Children and Young Persons (Care and Protection) Act 1998 ss3, 69, 79, 81 - parental responsibility solely to Minister - limit of power of Children's Court

LEGISLATION CITED: Children and Young Persons (Care and Protection) Act 1998 ss3, 69, 79, 81

CASES CITED: George v Children's Court of New South Wales (2003) 31 Fam LR 218
Grassby v The Queen (1989) 168 CLR 1
Craig v State of South Australia (1995) 184 CLR 163
Re Edward (2001) 51 NSWLR 502

PARTIES :

FILE NUMBER(S): SC 11860/04

COUNSEL:
R J Bromwich
(Plaintiffs)
D M Falloon
(Second defendant)
K Thompson
(Child representative)

SOLICITORS:
I V Knight
(Plaintiffs)
Marsdens
(First defendant)
Brian Muir & Co
(Second defendant)
I V Knight
(Third Defendant)
Dignan & Hanrahan
(Child representative)

LOWER COURTJURISDICTION: Children's Court

LOWER COURT FILE NUMBER(S):

LOWER COURT
JUDICIAL OFFICER : Magistrate B A Schurr

[2004] NSWSC 642
Ex tempore: revised

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JUSTICE DAVID LEVINE

FRIDAY 9 JULY 2004

11860 OF 2004

RE JOSIE
JUDGMENT (Children’s Court - Children and Young Persons (Care and Protection) Act 1998 ss3, 69, 79, 81 – parental responsibility solely to Minister – limit of power of Children’s Court)

1 By summons filed on 18 June 2004 the Minister for Community Services and the Director General of the Department of Community Services, the first and second plaintiffs, seek relief as follows:

1. A declaration that the order of the third defendant, the Children’s Court of New South Wales, that “there be no change in the young person’s placement until further order” concerning a child born on 13 May 1989, and made at Campbelltown on 19 May 2004, was beyond power.

2. That that order be quashed.

2 The proceedings therefore involve a challenge to the purported exercise of jurisdiction by the Children’s Court in making that order in court proceedings brought under the Children and Young Persons (Care and Protection) Act 1998.

3 Certain formalities have thus far been attended to, namely that the proceedings have been ordered to be known as “Re Josie” and that the proceedings have been conducted in closed court.

4 There remains one matter of a formal nature, and that is that an order be made that the plaintiffs be excused from naming the father of the child as a defendant. I make that order excusing the plaintiffs from so doing, based upon the affidavit of Donna Lynette Ward sworn 1 July 2004.

5 In support of the summons an…

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 Josie

Details

AGLC: Re Josie [2004] NSWSC 642
Case: [2004] NSWSC 642
Decision Date: 9 July 2004

CaseChat Overview and Summary

The case of Re Josie was heard by the Children's Court of New South Wales. Josie was a child whose parents had relinquished their parental responsibility to the Minister for Family and Community Services. The matter before the court was whether the Children's Court could make an order transferring Josie from foster care to the care of a proposed guardian, despite the absence of parental responsibility held by anyone over the child. The legal issues that the court needed to decide were whether the court had the power to make such an order in the absence of any parental responsibility, and whether such an order would be in the best interests of the child.

The court considered the statutory framework provided by the Children and Young Persons (Care and Protection) Act 1998, and noted that while the Act provided for the transfer of children from one care arrangement to another, it did so in the context of parental responsibility being held by someone. The court found that the Act did not provide for the transfer of a child in the absence of any parental responsibility, and that to do so would be beyond the powers of the court. The court also considered the best interests of the child, and found that it was not in Josie's best interests to be transferred to the care of the proposed guardian at that time.

The court therefore declined to make the order sought by the applicant, finding that it did not have the power to do so, and that to do so would not be in the best interests of the child. The court emphasised the importance of the statutory framework in guiding the exercise of its powers, and the need to act in the best interests of the child at all times. No further orders were made by the court.

Orders