WS v Director-General, Community Services Directorate - [2018] ACTSC 144

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	WS v Director-General, Community Services Directorate
Citation:	[2018] ACTSC 144
Hearing Dates:	28 August, 10 November 2017
DecisionDate:	22 May 2018
Before:	McWilliam AsJ
Decision:	See [121]
Catchwords:	APPEAL – APPEAL FROM THE CHILDRENS COURT – extension of care and protection order – where magistrate declined to consider whether child in need of care and protection – error established CHILDREN – CHILD WELFARE – intervention – extension of care and protection order – where father asserted he was willing and able to take parental responsibility for the child – whether previous findings of the Family Court of Australia concerning historical allegations of abuse in relation to a different child were misunderstood or misapplied – error established
Legislation Cited:	Children and Young People Act 2008 (ACT) ss 7, 8, 9, 336, 345, 349, 350, 422, 428, 464, 466, 467, 471, 472, 477, 479, 724, 725, 835, 836, 837, 838, Ch 19 Magistrates Court Act 1930 (ACT) ss 274, 287
Cases Cited:	Briginshaw v Briginshaw (1938) 60 CLR 336 CP v Director-General of Community Services Directorate and ors [2017] ACTSC 394 ES v The Director-General of the Community Services Directorate (No 2) [2016] ACTSC 7 House v R (1936) 55 CLR 499 JL v Director-General Community Services Directorate [2015] ACTSC 24 LP v Director-General of the Community Services Directorate [2016] ACTSC 57; 308 FLR 452 M v M (1988) 166 CLR 69 MC v The Director General Community Services Directorate [2017] ACTSC 354 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 Napier v Hepburn [2006] FamCA 1316; 36 Fam LR 395 Powell v Streatham Manor Nursing Home [1935] AC 243 Theodolorelos v Nexus Products Pty Ltd [2009] ACTSC 149
Parties:	WS (Appellant) Director-General, Community Services Directorate (First Respondent) [not published] (Second Respondent) WO (Third Respondent)
Representation:	Counsel Ms L Snelling (Appellant) Mr J Kellaway (First Respondent) Mr D Brown (Third Respondent)
Solicitors ACT Government Solicitor (First Respondent) Jeanine Lloyd & Associates (Third Respondent)
File Number:	SCA 60 of 2016
Decision under appeal:	Court: Childrens Court of the ACT Before: Magistrate Dingwall Date of Decision: 5 August 2016 Case Title: In the matter of an application to extend orders under Part 14.5 of the Children and Young People Act 2008 Court File Number: KE No. 2414 of 2000

This is an appeal concerning final care and protection orders made on 5 August 2016 under the Children and Young People Act 2008 (ACT) (CYPAct) in relation to a young girl, who will be referred to as ‘WO’. She was born in 2010 and is presently 7 years old.

The orders were made in the Childrens Court (as it is known pursuant to s 287 of the Magistrates Court Act 1930 (ACT), but hereafter referred to as the Children’s Court). The orders were to the effect that until WO attains…

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: [2018] ACTSC 144
Decision Date: 22 May 2018

CaseChat Overview and Summary

WS appealed against a decision of the Children's Court, which had declined to consider whether he was fit to take parental responsibility for his child, and had extended a care and protection order over the child. The appeal was heard by the Supreme Court of New South Wales. The father argued that the magistrate had failed to consider his capacity to provide care for the child and had wrongly relied on historical allegations of abuse in relation to another child, which were not relevant to the current case.

The court was required to determine whether the magistrate had erred by not considering the father's capacity to provide care for the child, and whether the reliance on historical allegations of abuse in relation to a different child was appropriate. The court also needed to determine if the error was significant enough to warrant setting aside the decision and remitting the matter back to the Children's Court for reconsideration.

The Supreme Court found that the magistrate had indeed made an error in not considering the father's capacity to provide care for the child, and that the reliance on historical allegations of abuse in relation to a different child was not relevant to the current case. The court held that the error was significant enough to warrant setting aside the decision and remitting the matter back to the Children's Court for reconsideration. The court emphasised that the focus should be on the current situation and the capacity of the father to provide care for the child, rather than on historical allegations that were not relevant to the current case.

The Supreme Court set aside the decision of the Children's Court and remitted the matter back to that court for reconsideration in light of the findings of the Supreme Court. The court emphasised that the focus should be on the current situation and the capacity of the father to provide care for the child, rather than on historical allegations that were not relevant to the current case. The court also noted that the Family Court's findings concerning historical allegations of abuse in relation to a different child should not be misapplied or misunderstood in the current case.

Orders

Orders of the court

See [121]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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