GO v Secretary, Department of Family and Community Services [2017] NSWDC 198

GO v Secretary, Department of Family and Community Services [2017] NSWDC 198

The Magistrate erred in finding that the appellant and the child's mother held the same position in the care proceedings. Although their interests were aligned, the appellant's position diverged because the final determination would require consideration of the appellant's ability to assist in or take over the care of NRJ, and the appellant was the best person to advance her own suitability as an alternative carer. That error was central to the refusal to exercise discretion under s 98(3), so leave to appeal was granted, the appeal was allowed, and the appellant was joined on limited terms.

Jurisdiction
Australia
Judgment Date
04 August 2017
Procedural Posture
Civil Appeal Concerning Refusal of Joinder in Child Protection or Care Proceedings / Application for Leave to Appeal and Appeal From a Children's Court Decision
Outcome
Leave to appeal granted; appeal allowed; appellant joined as a party to the care proceedings on limited terms.
Legal Topics
['joinder in Care Proceedings' 'right of Appearance' 'genuine Concern for the Safety, Welfare and Wellbeing of a Child' 'exercise of Discretion' 'procedural Fairness']
['children and Young Persons' 'care and Protection' 'civil Procedure'] ['joinder in Care Proceedings' 'right of Appearance' 'genuine Concern for the Safety, Welfare and Wellbeing of a Child' 'exercise of Discretion' 'procedural Fairness']

Case Brief

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Procedural Posture

Civil Appeal Concerning Refusal of Joinder in Child Protection or Care Proceedings / Application for Leave to Appeal and Appeal From a Children's Court Decision

Legal Issues

  1. 1 ["Whether leave to appeal should be granted from the Children's Court refusal to join the appellant as a party to care proceedings." "Whether the Children's Court Magistrate erred in exercising discretion under s 98(3) of the Children and Young Persons (Care and Protection) Act 1998." "Whether the appellant and the child's mother held the same position in the care proceedings." 'Whether the appellant should be joined for the limited purpose of cross-examining and adducing evidence about her suitability as an alternative carer.']

Ratio Decidendi

The Magistrate erred in finding that the appellant and the child's mother held the same position in the care proceedings. Although their interests were aligned, the appellant's position diverged because the final determination would require consideration of the appellant's ability to assist in or take over the care of NRJ, and the appellant was the best person to advance her own suitability as an alternative carer. That error was central to the refusal to exercise discretion under s 98(3), so leave to appeal was granted, the appeal was allowed, and the appellant was joined on limited terms.

Court Disposition

Leave to appeal granted; appeal allowed; appellant joined as a party to the care proceedings on limited terms.

Orders

  • ["I grant leave to appeal from the decision of the Children's Court made on 17 March 2017." 'The appeal is allowed.' "The appellant, GO, be joined as a party to the care proceedings in the Children's Court titled in the matter of NRJ v The Secretary, Department of Family and Community Services, on the terms set out...