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: "An appeal shall be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence on which the decision was made, may be given on the appeal." Fairly clearly, his Honour, having been satisfied that the learned Magistrate had erred, was required by law to investigate and decide on the evidence then before him whether any (and, if so, what) order should have been made under the Act. His Honour simply did not address himself to this task. Prima facie, therefore, the claimant is now entitled to the orders which he seeks. However, I am of the view that no such orders should be made. The orders sought are discretionary, and on discretionary grounds the court should decline to make those orders. I say this for three reasons. The first is that it is desirable that the claimant be given an opportunity to consider whether he still wishes to seek any relief under the Act. In those circumstances it would be positively mischievous to make an order which would have the effect of compelling a District Court judge to hear an application under the Act which the Director-General might not wish to prosecute. In any event, there is nothing to prevent the Director-General from initiating further proceedings in respect of the 2 UNREPORTED JUDGMENTS same matters before the local Children's Court if he so desires. The second reason is that if the Director-General decides that relief under the Act should be sought, it would be manifestly more expedient to seek that relief before the Childrens' Court on a fresh application than by a continuation of the present proceedings before the District Court. In the third place, there was some evidence before us, not contradicted, that no relief under that Act is now required. Mrs Dumesny has stated that the complaints she made against her husband were fabricated; there is evidence that the children are happy at home, where both their parents love them; and there is evidence that both parents love both each other and the children, the only cloud on the matrimonial scene being the continued existence of these proceedings. In sum, these factors militate against the granting of any relief. I therefore propose that the summons should be dismissed with costs. Counsel for the Claimant: M Gray QC with C Cook Solicitor for the Claimant: HK Roberts, State Crown Solicitor Counsel for the First Opponent: D Letcher QC with J Stevenson Solicitors for the First Opponent: Teece Hodgson and Ward Counsel for the Second Opponent: P Bowe Solicitor for the Second Opponent: P Bowe