RE: ANDREW [2004] NSWCA 210

New South Wales Court of Appeal

CITATION : RE: ANDREW [2004] NSWCA 210 revised - 5/07/2004 HEARING DATE(S) : 4 June 2004 JUDGMENT DATE : 24 June 2004

JUDGMENT OF : Mason P at 1; Sheller JA at 6; McClellan AJA at 29 DECISION : Appeal allowed and the order of O'Keefe J of 26 February 2004, that the father be joined as a party in the proceedings and be served with the summons, be set aside.

CATCHWORDS : WELFARE OF CHILD - joinder of father to Supreme Court proceedings - where real risk to safety of mother and child - Children and Young Persons (Care and Protection) Act 1988 - natural justice - proper contradictor - where question in Supreme Court was one of law - whether service would pre-empt decision of Children's Court LEGISLATION CITED : Child Welfare Act 1939 Children and Young Persons (Care and Protection) Act 1998 J v Lieschke (1987) 162 CLR 447 Pochi v Minister for Immigration and Ethnic Affairs (1979) 35 FLR 482 CASES CITED : R v Bell; ex parte Lees (1980) 146 CLR 141 Separate Representative v E (1993) 114 FLR 1 Twist v Randwick Municipal Council (1976) 136 CLR 106 PARTIES : Minister for Community Services Children's Court of New South Wales FILE NUMBER(S) : CA 40143/04 R Bourke - First and Second Appellants COUNSEL : N/A - First Respondent J Viney - Second Respondent M Cleary/K Renshall - Third Respondent I V Knight - Crown Solicitor - First and Second Appellants Children's Court of NSW - First Respondent SOLICITORS : Richard Parkinson - Second Respondent Kathryn Renshall - Third Respondent