DIRECTOR-GENERAL OF FAMILY AND COMMUNITY SERVICES v DUMESNY [1989] NSWCA 61

DIRECTOR-GENERAL OF FAMILY AND COMMUNITY SERVICES v DUMESNY

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, SAMUELS and MEAGHER JJA 22 March 1989, 3 May 1989 [1989] NSWCA 61

District Court — Children (Care and Protection) Act 1987 certiorari and mandamus — discretionary nature of these orders.

Meagher JA In this matter the Director-General of Family and Community Services has filed a summons seeking an order in the nature of certiorari quashing certain orders made by his Honour Judge McDevitt, sitting as the District Court at Parkes, and an order in the nature of mandamus requiring his Honour to hear according to law an appeal to him against certain orders made by Mr Ayling sitting as the Children's Court at Parkes under the Children (Care and Protection) Act 1987.

An application was made by Miss Van Stellingwerff to the Children's Court for orders in respect of the children of Mr and Mrs Dumesny under the Children (Care and Protection) Act 1987. The learned magistrate, Mr Ayling, sitting in that Court made certain orders purportedly under that Act on 28 April 1988. Inter alia, he made a "care order" under section 72 of that Act. He also made orders requiring both Mr and Mrs Dumesny to give the Court certain undertakings. It is tolerably clear that the learned Magistrate had no power to do what he did. A "care order" is an expression quite devoid of legal meaning. Likewise he had no power to require either Mr Dumesny or Mrs Dumesny to give any undertaking, although he had power to accept any undertaking they, or either of them, offered.

An appeal was taken to the District Court before his Honour Judge McDevitt. His Honour was content to find that the learned Magistrate had acted without power, and on being satisfied in that regard, upheld the appeal.

Unfortunately, his Honour erred in law in so doing. Section 81(3) of the Act is in the following terms: