Re Louise and Belinda - [2009] NSWSC 534

CITATION: Re Louise and Belinda [2009] NSWSC 534

HEARING DATE(S): 02/06/09

JUDGMENT DATE :
16 June 2009

JURISDICTION: Equity

JUDGMENT OF: Forster J at 1

DECISION: See paragraphs 66 and 67 of judgment.

CATCHWORDS:
Orders in the nature of certiorari - District Court - Error on the face of the record
Children and Young Persons (Care and Protection) Act (1998) - Sections 9, 60, 71, 72 and 90 - care orders - paramount considerations

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

CATEGORY: Principal judgment

CASES CITED: Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297
Craig v South Australia (1995) 184 CLR 163
Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518
Moraitis Fresh Packaging (NSW) Pty Limited v Fresh Express (Australia) Pty Limited [2008] NSWCA 327
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208

FILE NUMBER(S): SC 1358/2009

COUNSEL: Plaintiff- Mr G.W.Moore
First Defendant- Ms K.M.Reynolds
Third and Fourth Defendants-Mr S.P.Williamson

SOLICITORS: Plaintiff-Catherine Samuels, Crown Solicitor's Office
First Defendant- Dennis Chapman, D.J. Chapman Solicitors
Third and Fourth Defendants-Paul Grant, Grant and Co. Solicitors

LOWER COURT JURISDICTION: District Court

LOWER COURT JUDICIAL OFFICER : Delaney DCJ

LOWER COURT DATE OF DECISION: 16/12/08

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

FORSTER J

TUESDAY, 16 JUNE 2009

1358/09 RE LOUISE AND BELINDA

JUDGMENT

1 HIS HONOUR: This is an application by the Director General of the Department of Community Services for orders pursuant to section 69 of the Supreme Court Act 1970, quashing orders made by his Honour Judge Delaney of the District Court on 16 December 2008 and 4 February 2009, and for an order remitting the proceedings to the District Court to be heard and determined according to law.

2 The application relates to two children (“the Children”) who are respectively the third and fourth defendants. Their natural mother (“the Mother”) is the first defendant. The second and fifth defendants are not affected by the present dispute and it is conceded that they ought not have been joined as defendants. They took no part in the proceedings. The sixth defendant, being the District Court of New South Wales, was not represented and likewise took no part in the proceedings.

History and Nature of the Application

3 The Children were born on 27 February 2001 and 1 April 2002 respectively. On 4 November 2004, they were taken into care pursuant to an emergency care and protection order made under section 46 of the Children and Young Person (Care and Protection) Act 1998 (“the Act”). Shortly, thereafter the Woy Woy Children’s Court made a care order in relation to the children pursuant to section 71 of the Act which, so far as is relevant, provides as follows:

“71 Grounds for care orders

(1) The Children’s Court may make a care order in relation to a child or young person if it is satisfied that the child or young person is…

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.

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Details

Case: [2009] NSWSC 534
Decision Date: 16 June 2009

CaseChat Overview and Summary

The applicants, Louise and Belinda, sought orders in the nature of certiorari against the District Court. The dispute involved the interpretation and application of the Children and Young Persons (Care and Protection) Act 1998. The applicants argued that the District Court had erred in making care orders concerning their children. They contended that the court had not properly considered the paramount considerations outlined in section 9 of the Act, which prioritises the best interests of the child.

The central legal issue before the court was whether the District Court had correctly applied the statutory provisions and principles when making the care orders. Specifically, the applicants argued that the court had failed to adequately consider the best interests of the children as the paramount consideration. They also contended that the District Court had not properly assessed the factors under sections 60, 71, 72, and 90 of the Act, which relate to the circumstances in which care orders can be made.

The court found that the District Court had indeed erred in its application of the statutory provisions and principles. The court held that the District Court had not sufficiently considered the best interests of the children as the paramount consideration and had not adequately assessed the relevant factors under the Act. As a result, the court granted the applicants' application for orders in the nature of certiorari, quashing the care orders made by the District Court. The matter was remitted to the District Court for reconsideration in accordance with the correct legal principles.

Orders