GA v. Director General, Department of Human Services & Ors [2011] NSWDC 57

District Court New South Wales

Medium Neutral Citation: GA v. Director General, Department of Human Services & Ors [2011] NSWDC 57 Hearing dates: 27 June 2011 Decision date: 01 July 2011 Jurisdiction: Civil Before: Colefax SC DCJ Decision: No jurisdiction; appeal summons dismissed. Catchwords: Child care appeals - Interlocutory Application - whether District Court has jurisdiction to hear an appeal at conclusion of establishment phase and before placement phase in Children's Court care hearing Legislation Cited: Children & Young Persons (Care and Protection) Act 1998 Cases Cited: Re Alistair [2006] NSWSC 411 S v Department of Community Services [2002] NSWCA 151 Category: Procedural and other rulings Parties: Department of Human Services (Applicant) GA (Respondent) File Number(s): 2011/70347 Publication restriction: Non-publication order of names

Judgment

Introduction: 1The Children & Young Persons (Care and Protection) Act 1998 ("the Act") provides the statutory framework by which children and young persons can be removed from the care of their parents. 2The court which initially determines such applications is the Children's Court. A party to proceedings who is dissatisfied with an order of the Children's Court (other than an interim order) may appeal to the District Court against that order (cf section 91 of the Act). 3Proceedings for the removal of children and young persons are called care applications. 4As was helpfully explained by Kirby J in Re Alistair [2006] NSWSC 411 (a decision to which I shall return later in these reasons), care applications are determined by means of a two stage process. 5The first or threshold stage is to determine whether the child is in need of care and protection such as to warrant the intervention of the court. This stage is commonly referred to as "the establishment phase". 6If the court determines the question posed in the preceding paragraph in the affirmative, it proceeds to the second stage during which it considers what final orders ought be made to safeguard the child or young person consistent with the statutory objects and principles underpinning the administration of the Act. This second stage is variously called "the welfare stage", "the placement phase", or the "disposition phase". 7Frequently the Children's Court considers the establishment phase and the placement phase in the same hearing - although there may be an adjournment of the hearing between those two stages (for example, to permit the Director General of the Department of Human Services to prepare a care plan, cf sections 78 and 80 of the Act) and a different judicial officer may conduct the hearing at each stage. 8The question which arises for consideration in the present proceedings by way of a Notice of Motion filed by the Director General of the Department of Human Services is whether an appeal can be brought to this court at the conclusion of the establishment phase and before the Children's Court determines the placement phase.