S v Department of Community Services [2002] NSWCA 151

S v Department of Community Services [2002] NSWCA 151

The Children's Court approached Richard S's leave application under s90 in an unduly narrow and technical manner. It failed to consider the substance of his case that he was a fit parent seeking custody in changed circumstances, wrongly treated the parents' separation and Renee S's continued drug-free period as incapable of being significant changes, and took into account matters inappropriate to a leave application in the absence of cross-examination. Those errors were errors of law on the face of the record. Kirby J therefore erred in refusing relief. The District Court also had jurisdiction under s91(1) to hear an appeal from the Children's Court's refusal of leave because that refusal...

Jurisdiction
Australia
Judgment Date
23 May 2002
Procedural Posture
Judicial Review and Appeal Concerning Refusal of Leave to Apply for Rescission or Variation of a Care Order / Application for Leave to Appeal to the New South Wales Court of Appeal; Leave Granted and Appeal Allowed
Outcome
Leave to appeal granted; appeal allowed; Children's Court order quashed; matter remitted to the Children's Court for rehearing by a different Magistrate; declaration made that the District Court had jurisdiction.
Legal Topics
['care Orders' 'rescission or Variation of Care Orders' 'certiorari' 'error of Law on the Face of the Record' "children's Court Jurisdiction" 'district Court Appeal Jurisdiction']
['administrative Law' 'child Protection' 'appeals and Judicial Review'] ['care Orders' 'rescission or Variation of Care Orders' 'certiorari' 'error of Law on the Face of the Record' "children's Court Jurisdiction" 'district Court Appeal Jurisdiction']

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Procedural Posture

Judicial Review and Appeal Concerning Refusal of Leave to Apply for Rescission or Variation of a Care Order / Application for Leave to Appeal to the New South Wales Court of Appeal; Leave Granted and Appeal Allowed

Legal Issues

  1. 1 ["Whether the Children's Court erred in refusing Richard S leave to apply for rescission or variation of a care order under s90 of the Children and Young Persons (Care and Protection) Act 1998." "Whether the Children's Court failed to consider material circumstances and took immaterial circumstances into account when deciding the leave application." "Whether the District Court of New South Wales had jurisdiction under s91 of the Children and Young Persons (Care and Protection) Act 1998 to hear an appeal from the Children's Court's refusal of leave." 'Whether Kirby J erred in dismissing the summons for prerogative relief.']

Ratio Decidendi

The Children's Court approached Richard S's leave application under s90 in an unduly narrow and technical manner. It failed to consider the substance of his case that he was a fit parent seeking custody in changed circumstances, wrongly treated the parents' separation and Renee S's continued drug-free period as incapable of being significant changes, and took into account matters inappropriate to a leave application in the absence of cross-examination. Those errors were errors of law on the face of the record. Kirby J therefore erred in refusing relief. The District Court also had jurisdiction under s91(1) to hear an appeal from the Children's Court's refusal of leave because that refusal...

Court Disposition

Leave to appeal granted; appeal allowed; Children's Court order quashed; matter remitted to the Children's Court for rehearing by a different Magistrate; declaration made that the District Court had jurisdiction.

Orders

  • ['Leave to appeal against the order of dismissal by Kirby J on 17 December 2001 be granted.' 'The appeal be allowed.' 'The order of dismissal by Kirby J on 17 December 2001 be set aside.' "The order of the Children's Court made on 3 September 2001 on Richard S's application for leave be removed into this Court and...