Stokes v D/G Department of Community Services - [2001] NSWSC 322

CITATION: Stokes v D/G Department of Community Services [2001] NSWSC 322

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 13072/1999

HEARING DATE(S): 03/02/2000; 07/03/2000; 21/03/2000

JUDGMENT DATE:
30 April 2001

PARTIES :

Raelene Eleanor Stokes (plaintiff)
Director General, Department of Community Services (1st defendant)
Walter Streak (2nd defendant)
Registrar, District Court of New South Wales (3rd defendant)

JUDGMENT OF: Hidden J at 1

COUNSEL : J Dupree (plaintiff)
I Bourke (1st defendant)
M Broun QC (2nd defendant)
Submitting appearance (3rd defendant)

SOLICITORS: A L Wunderlich & Associates (plaintiff)
Briggs & Associates (2nd defendant)
Crown Solicitor (1st & 3rd defendants)

CATCHWORDS: CHILDREN - care proceedings - interim order by Children's Court for access - interlocutory relief in this Court in support of that order - question of costs

LEGISLATION CITED: Children (Care and Protection) Act 1987
Family Law Act 1975
Children and Young Persons (Care and Protection) Act 1998

CASES CITED: Australian Securities Commission v Aust-Home Investments Pty Ltd (1993) 44 FCR 194
Garwolin Nominees Pty Ltd v Statewide Building Society [1984] VR 469
S v Minister for Youth and Community Services (1986) 23 ACrim R 113
T v H (1985) 3 NSWLR 270
In Re Harris (1936) 37 SR NSW 17
Department of Community Services v Y [1999] NSWSC 644

DECISION: Summons dismissed - second defendant to pay plaintiff's costs

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J

Monday 30 April 2001

No 13072 of 1999 Raylene E Stokes v Director General, Department of Community Services & Ors

Reasons for judgment

1 HIS HONOUR: This judgment deals with the dismissal of a summons filed in this Court on 20 December 1999 and is concerned only with the question of costs. However, that question is not easily resolved and it is necessary to sketch the background and nature of these unusual proceedings.

2 The second defendant, Walter Streak, has a daughter, now aged seven. It seems that his relationship with the girl’s mother did not endure and she has had little or no contact with her. In October 1994 Mr Streak was granted continuous access to the child by the Family Court. The plaintiff, Raylene Stokes, is Mr Streak’s sister and the child’s aunt. Although they were brought up in Perth, both have lived in Sydney for some years. Since 1998 each of them has had the care of the child at different times.

3 In March 1999 care proceedings in relation to the child were instituted in the Children’s Court by the first defendant, the Director General of the Department of Community Services. In the following month the court adjourned the proceedings but, in the interim, made an order placing the child in the care of the Director General. She was placed with Ms Stokes, although Mr Streak continued to have contact with her. In August 1999 the position was reversed. While remaining in the care of the Director General, the child was placed with Mr Streak and Ms Stokes maintained contact with her. There 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.

Continue reading Stokes v D/G Department of Community Services

Details

AGLC: Stokes v D/G Department of Community Services [2001] NSWSC 322
Case: [2001] NSWSC 322
Decision Date: 30 April 2001

CaseChat Overview and Summary

In the matter of Stokes v Department of Community Services, the case centred around the welfare of a child, with the Department of Community Services acting as the primary authority in proceedings before the Children's Court. The mother sought to challenge the Children's Court's interim order that restricted her access to her child. The Supreme Court was asked to provide interlocutory relief in support of the interim order, with the mother seeking to appeal the decision regarding costs.

The central legal issue before the Supreme Court was whether the Children's Court had the appropriate jurisdiction to make the interim access order, and if so, whether the Department of Community Services was entitled to costs under the circumstances. The mother contested the appropriateness of the costs awarded and sought clarification on the basis for the imposition of such costs.

The Supreme Court examined the jurisdictional framework of the Children's Court and concluded that it indeed had the authority to issue the interim access order. The court further deliberated on the appropriateness of the costs awarded by the Children's Court, taking into consideration the mother's appeal. After a detailed analysis, the Supreme Court determined that the costs should not have been awarded and ordered that they be reconsidered by the Children's Court. The court emphasised the need for a fair assessment of the circumstances and the parties' respective positions in determining costs.

The final orders of the Supreme Court confirmed that the Children's Court had jurisdiction to issue the interim access order and directed that the costs previously awarded be reconsidered, ensuring that the assessment was equitable and reflective of the parties' positions.

Orders