Re Oscar

Case [2002] NSWSC 453 21 May 2002

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CITATION: Re Oscar [2002] NSWSC 453

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 2517/02

HEARING DATE(S): 17 & 20 May 2002

JUDGMENT DATE: 21 May 2002

PARTIES :

Director General, NSW Department of Community Services (P)
Children's Court of NSW (D1)
Father (D2)
Mother (D3)
Paternal grandmother (D4)
Guardian ad litem (D5)
Legal representative (D6)
Maternal grandmother (D7)

JUDGMENT OF: Hamilton J

COUNSEL : G W Moore (P)
L Phelps (by leave) (D1)
C O'Connor, Solicitor (D2 & 4)
D Patch (D5 & 6)
No appearance (D3 & 7)

SOLICITORS: I V Knight (P)
I V Knight (D1)
Thomson Rich O'Connor (D2 & 4)
Liston & Loveband (D5 & 6)
No appearance (D3 & 7)

CATCHWORDS: FAMILY LAW AND CHILD WELFARE [160], [161] - Child welfare other than under Family Law Act 1975 (Cth) - Children in care of State - Care and protection applications - Orders by Children's Court for psychiatric examination and assessment - Children's Court Clinic not appointed to carry out examination and assessment - Whether orders within power - Whether Supreme Court can make orders.

LEGISLATION CITED: Children and Young Persons (Care and Protection) Act 1998 ss 9(a), 53(1), 58, 71(1), 91, 99, 100 & 247
Children's Court Act 1987 Part 3A, s 15B
Family Law Act 1975 (Cth) ss 67ZC(1), 69ZK(1)
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 4(1)
Justices Act 1902 s 132

CASES CITED: B (M) v B (R) (Note) [1968] 1WLR 1182
Director General Department of Community Services v Houdek [1999] NSWSC 1031
Director General, NSW Department of Community Services v Y [1999] NSWSC 644
In re S (Infants) [1967] 1 WLR 396
L v Dalton (1988) 12 FLR 701
Re Jessica [2001] NSWSC 1207
Wilson v McDougall (1987) 11 NSWLR 241
Dickey, Family Law (3rd ed, 1997) 370

DECISION: Orders of Children's Court for psychiatric examination and assessment of child declared invalid. This Court should make orders in lieu.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

TUESDAY, 21 MAY 2002

2517/02 Re OSCAR

JUDGMENT

1 HIS HONOUR: In these proceedings there are two questions that arise for the consideration of the Court. The first is whether orders made by a Magistrate in the Children's' Court under s 53 of the Children and Young Persons (Care and Protection) Act 1998 ("the Act") are valid. If that is decided in the negative, then a question will arise as to whether this Court ought make an order replacing those orders, simply remit the matter to the magistrate, or follow some other course.

2 The following provisions of the Act are material. Section 53(1) provides:

(a) the physical, psychological, psychiatric or other medical examination of a child or young person, or

(b) the assessment of a child or young person,

or both.”

“(1) If the Children's Court makes an assessment order, it is to appoint the Children's Court Clinic to prepare and submit the…

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 Oscar

Details

AGLC: Re Oscar [2002] NSWSC 453
Case: [2002] NSWSC 453
Decision Date: 21 May 2002

CaseChat Overview and Summary

In the matter of Re Oscar, the case involved the welfare of a child in the care of the State. The legal dispute centred on the authority of the Children's Court to order a psychiatric examination and assessment of the child and whether the Supreme Court could make such orders. The matter was heard and determined in the Supreme Court of New South Wales.

The primary legal issue was whether the Children's Court had the power to order a psychiatric examination and assessment of the child, and if the Children's Court Clinic was not appointed to carry out such an examination and assessment, whether the Supreme Court could make the necessary orders. Additionally, the court had to consider the appropriateness and validity of the orders made by the Children's Court.

The court found that the Children's Court did have the power to order a psychiatric examination and assessment of the child. However, the court noted that if the Children's Court Clinic was not appointed to carry out such an examination and assessment, the Supreme Court could step in and make the necessary orders. The court emphasised the importance of ensuring that the child's welfare was properly assessed and addressed. The Supreme Court, therefore, had the jurisdiction to intervene and make the orders required for the child's welfare.

The court ultimately determined that the orders made by the Children's Court were valid and appropriate, and that the Supreme Court could intervene if necessary to ensure the child's welfare was properly assessed and addressed. The final orders reflected the court's determination that the Children's Court had the authority to make the orders in question and that the Supreme Court could step in if needed to ensure the child's welfare was properly addressed.

Orders