SPRUILL v DEPT OF COMMUNITY SERVICES [2001] NSWCA 219

New South Wales Court of Appeal

CITATION : SPRUILL v DEPT OF COMMUNITY SERVICES [2001] NSWCA 219 FILE NUMBER(S) : CA 40341/01 HEARING DATE(S) : 25 June 2001 JUDGMENT DATE : 25 June 2001

PARTIES : Richard SPRUILL v DEPT OF COMMUNITY SERVICES JUDGMENT OF : Mason P at 1; Davies AJA at 13; Grove AJA at 14

LOWER COURT JURISDICTION : Supreme Court LOWER COURT SC 10880/01 FILE NUMBER(S) : LOWER COURT Hulme J JUDICIAL OFFICER :

COUNSEL : Applicant: R Spruill Respondent: Ian Bourke SOLICITORS : Applicant: R Spruill Respondent: Ian Knight, Crown Solicitor CATCHWORDS : Application for leave to appeal - Supreme Court considering interlocutory order of Children's Court - Children (Care and Protection) Act 1987 - no error of discretion (ND) DECISION : Summons dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40341/01

MASON P DAVIES AJA GROVE AJA

Monday 25 June 2001

Richard SPRUILL v DEPARTMENT OF COMMUNITY SERVICES

JUDGMENT 1 MASON P: This is an application for leave to appeal against the order of Hulme J in which his Honour dismissed a summons seeking to challenge an interlocutory decision of the Children's Court. In his judgment the judge recited the earlier history of the matter, including the earlier substantive application in the Children's Court and the appeal from that decision to the District Court. 2 However, as his Honour recognised, the primary application before him was an application to appeal from the decision of the Children's Court made on Mr Spruill's application of 19 January 2001 seeking the rescission of the earlier decision. The issue before Hulme J was whether that rescission application should be remitted to the Children's Court. His Honour declined to do so because he was not satisfied that any error of law had occurred that was dispositve of the application of 19 January 2001. 3 In this State the Children's Court is the specialist body that has the jurisdiction to determine issues relating to the welfare of children when applications are made under the Children (Care and Protection) Act 1987. The right of appeal to the Supreme Court invoked in the present case exists to correct a limited class of errors. It is not the role of the Supreme Court to exercise the original jurisdiction of the Children's Court. 4 An appeal lies to the District Court to challenge errors of fact and, as I have indicated, such right of appeal has already been exercised once in this case. 5 I am of the view that the judgment of Hulme J does not betray any error in the exercise of the limited jurisdiction which his Honour was exercising. 6 The claimant, who was supported in this application by his wife, Mrs Spruill, has grounds to be dissatisfied with aspects of the reasoning of the Children's Court Magistrate in the particular application presently under challenge. Certain errors are discussed in the judgment of Hulme J. The Children's Court would be required to give proper regard to his Honour's comments if and when the matter returns to that Court on a fresh substantive application. 7 I would endorse Hulme J's remarks in paragraph 22 of the judgment in which his Honour says that he considers that Mr and Mrs Spruill would be better served by making a fresh application and in which he would expect to come before a different Magistrate. 8 The application before the learned primary judge was also made on an alternative basis; namely, the invocation of the Supreme Court's parens patriae powers applicable in the case of children. 9 His Honour said that a difficulty which arose so far as that power was concerned in the present case was that it would involve the Court hearing, as it were, de novo, an application effectively for custody of the child; and that material which had been presented to the Court together with the interim processes within the Court prior to the day on which he gave judgment indicated that no party had prepared or had presented the case in the detail necessary for the Supreme Court to deal with it as a substantive application for a care order. Before us Mr Spruill indicated that one such piece of material which he considers to be most important is the judgment of Judge Puckeridge. 10 In one sense, Mr and Mrs Spruill invoked today before this Court that same ultimate jurisdiction of the Supreme Court. They beg this Court to intervene in a case which has an unfortunate procedural history in order to address the question of the future care and custody of their child. 11 This Court is faced with the same difficulty that Hulme J had. In any event, I would decline the request to invoke any such jurisdiction, having regard to the fact that this particular Court is an appellate court. 12 In my view, the matter remains an appropriate one to be determined in the Children's Court, that Court being subject to appellate review on the facts to the District Court, and appellate review on the law to the Supreme Court. Because I am not persuaded that Hulme J committed any error in the manner in which he dealt with the application before him, I would refuse leave to appeal and dismiss the summons with costs. 13 DAVIES AJA: I agree with the President. 14 GROVE J: I also agree. 15 MASON P: That is the order of the Court. ********