W v Watson - [2002] TASSC 38

[2002] TASSC 38

CITATION: W v Watson [2002] TASSC 38

PARTIES:  W
  v
  WATSON, Leonie

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 27/2001
DELIVERED ON:  18 June 2002
DELIVERED AT:  Hobart
HEARING DATE:  10 April 2002
JUDGMENT OF:  Evans J

CATCHWORDS:

Magistrates - Jurisdiction and procedure generally - Procedure - The hearing - Matters relating to decision - Obligation to state reasons for decision - Extent of obligation - No miscarriage of justice as only conclusion open.

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430; Briscoe v Turner 128/1997; Perkins v County Court of Victoria & Ors (2000) 2 VR 246, applied.
Children, Young Persons and their Family Act 1997 (Tas), ss21, 42(3) and (4), 48(1), 49, 54.
Magistrates Court (Children's Division) Act1998 (Tas), ss12(1) and 20(3)(a).
Aust Dig Magistrates [128]

REPRESENTATION:

Counsel:
             Applicant:  In person
             Respondent:  S J N Brown
Solicitors:
             Applicant:  In Person
             Respondent:  Simon Brown

Judgment Number: [2002] TASSC 38
Number of paragraphs: 45

Serial No 38/2002
File No LCA 27/2001

W v LEONIE WATSON

REASONS FOR JUDGMENT EVANS J
18 June 2002

The applicant appeals against an order varying a care and protection order made by a magistrate exercising the jurisdiction of the Magistrates Court (Children's Division) under the Children, Young Persons and their Family Act 1997, ("the Act"). The applicant's 15 year old child is the subject of the order. In these reasons I variously refer to the applicant's son as the child, the boy or the son. Consistent with the restrictions placed on the reporting of these proceedings by the Magistrates Court (Children's Division) Act 1998, s12(1) and s20(3)(a), in preparing these reasons I have endeavoured to avoid identifying people or matters in a way which might lead to the identification of the child.

The variation order which is the subject of this appeal was made on 13 November 2001. The relevant terms of the order as varied are:

(a)that the child be placed under the guardianship of the Secretary of the Department of Health and Human Services ("the Secretary") and the child's mother until he attains the age of 18 years;
(b)that during the period of the order, the child reside at the rehabilitation facility designated in the order ("the Launceston rehabilitation facility") or at such accommodation as may be approved by the Secretary;
(c)that the applicant have contact with the child on alternative Sundays between 10am and 3pm and on Mondays to Fridays inclusive for a total of five hours;
(d)that contact between the applicant and the child be supervised in a manner determined by the guardians in consultation with the applicant and by a person or persons who are determined by the guardians in consultation with the applicant; and
(e)that the applicant not attend at the Launceston rehabilitation facility during the period of the order.

A precondition to the making of a care and protection order is a finding that the child who is the subject of the order 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: [2002] TASSC 38
Decision Date: 18 June 2002

CaseChat Overview and Summary

W v Watson is an appeal by the applicant against an order made by the Magistrate extending a care and protection order in respect of his son, who is 15 years old. The appeal was heard by Evans J in the Supreme Court of Tasmania and the appeal was dismissed. The applicant had sought an order that his son be placed under his sole guardianship and custody. The application was opposed by the Secretary of the Department of Health and Human Services who was seeking to extend the duration of the care and protection order and to remove the applicant as a joint guardian of the child. The applicant's son was the subject of a care and protection order made by the Magistrate on 15 June 2001. The parties had acknowledged that the child was at risk and that an order should be made for his protection. The variation application raised the issue of whether the order should be extended and whether the applicant needed to be removed as a joint guardian of the child as a consequence of his inability to work with others to reach decisions about the child's welfare. The evidence before the learned magistrate as to these matters was overwhelming and uncontradicted. The applicant chose not to give oral evidence, explaining in the affidavit he filed that this was due to his ill health. The applicant did not call any witnesses to refute the Secretary's case. The only witness he called was his wife, and the evidence he elicited from her did not touch on any relevant matter in issue. In the circumstances, it was inevitable that the learned magistrate would make orders along the lines of those made. The appeal was dismissed.

Orders