DIRECTOR-GENERAL OF DEPARTMENT COMMUNITY SERVICES v DISTRICT COURT OF NEW SOUTH WALES & ORS [2003] NSWCA 169

DIRECTOR-GENERAL OF DEPARTMENT COMMUNITY SERVICES v DISTRICT COURT OF NEW SOUTH WALES & ORS [2003] NSWCA 169

The application for certiorari was refused because, even if there may have been questions about the District Court's power to impose conditions or undertakings, it was open to Phelan DCJ to find at the time of the appeal that the child was not in need of care and protection and to set aside the Children's Court order. In addition, the Director-General's counsel had agreed in the District Court that no further orders could be made, eight months had passed, the child had remained with the mother, and granting certiorari would effectively return the child to the Director-General's care without current evidence. The Court therefore declined, in its discretion, to grant relief.

Jurisdiction
Australia
Judgment Date
11 July 2003
Procedural Posture
Judicial Review; Orders in the Nature of Certiorari / Application in the NSW Court of Appeal to Quash Orders Made by the District Court on Appeal From the Children's Court
Outcome
Application dismissed with costs.
Legal Topics
['judicial Review' 'certiorari' "children's Court Orders" 'district Court Appeal Jurisdiction' 'care and Protection Orders' 'discretion to Refuse Relief']
['administrative Law' 'child Care and Protection' 'appellate Jurisdiction'] ['judicial Review' 'certiorari' "children's Court Orders" 'district Court Appeal Jurisdiction' 'care and Protection Orders' 'discretion to Refuse Relief']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Judicial Review; Orders in the Nature of Certiorari / Application in the NSW Court of Appeal to Quash Orders Made by the District Court on Appeal From the Children's Court

Legal Issues

  1. 1 ['Whether the District Court exceeded its jurisdiction by considering whether the child ever was, or was at the time of the appeal, in need of care and protection.' 'Whether the District Court had power to impose conditions or require undertakings when ordering return of the child to the mother.' "Whether the Court of Appeal should exercise its discretion to grant orders in the nature of certiorari in light of the lapse of time, counsel's concession in the District Court, and the practical effect of the relief sought."]

Ratio Decidendi

The application for certiorari was refused because, even if there may have been questions about the District Court's power to impose conditions or undertakings, it was open to Phelan DCJ to find at the time of the appeal that the child was not in need of care and protection and to set aside the Children's Court order. In addition, the Director-General's counsel had agreed in the District Court that no further orders could be made, eight months had passed, the child had remained with the mother, and granting certiorari would effectively return the child to the Director-General's care without current evidence. The Court therefore declined, in its discretion, to grant relief.

Court Disposition

Application dismissed with costs.

Orders

  • ['Application dismissed with costs.']