CLN 2004

CLN 9 - December 2004

Children’s Court decisions

In the matter of the Department of Community Services and the “Young” Children – Crawford CM

Section 90 application and sole parental responsibility to the Minister for residence v joint parental responsibility with a parent.

Supreme Court decisions

Re H and the Adoption Act [2004] NSWSC 1242 – Young CJ

Adoption - whether name may be changed - Adoption Act 2000, s 101(5). "Given Name". The purpose and contents of affidavits.

Papers

‘Working with Affidavit Evidence in Care Proceedings in the Children’s Court’

A paper by Children’s Magistrate John Crawford

CLN 8 - October 2004

Supreme Court decisions

Re Katherine [2004] NSWSC 899 – Studdert J

Procedural fairness and apprehension of bias in care proceedings.

Minister for Community Services &1 Or v. Children’s Court of New South Wales & 3 Ors – [2004] NSWSC 1018 (Re Nadya) – Bell J

The express terms of s 70 do not admit of an interim order allocating parental responsibility to the Minister on an application brought under Ch 7. Such an application is not a care application and an order approving or giving effect (or partial effect) to an alternative parenting plan is not a care order as that expression is defined for the purposes of Ch 5 of the Act. The power conferred by s 15 of theChildren’s Court Act 1987 does not authorise an interim order allocating parental responsibility to the Minister on an application brought under Ch 7.

Papers

“Monitoring and Review of Court Orders"

s 82 of the Children and Young Persons (Care and Protection) Act 1998’. A paper by Children’s Magistrate Crawford.

Children’s Court decisions

In the matter of the “D” Children – Truscott CM

A s 90 application can be brought to vary contact only, despite no s 86 contact order being made on the initial application.

Court of Appeal decisions

Re Andrew – [2004] NSWCA 210

Joinder of father to Supreme Court proceedings - where real risk to safety of mother and child -Children and Young Persons (Care and Protection) Act 1998 - natural justice - proper contradictor - where question in Supreme Court was one of law - whether service would pre-empt decision of Children's Court.

CLN 7 - September 2004

Supreme Court decisions

Re Andrew [2004] NSWSC 842 – Wood CJ

Care Application - s 64 of Children and Young Persons (Care and Protection) Act 1998 - dispensing with service of Care Application on father - paramountcy of safety, welfare and well being of child - rights or interests of parents - mandatory and directory requirements of statute - whether Children's Court had power or discretion to dispense with service.

CLN 6 - September 2004

Children’s Court decisions

In the matter of Jason – Mitchell CM

Allocating parental responsibility to a parent when that parent is under the age of 18 years.

In the matter of Calvin (No 2) – Mitchell CM

The scope of section 82 and the limits of the Court’s power to supervise the care and welfare of a child or young person after a case has been determined and “final” care orders have been made - whether and for how long the appointment of a child’s guardian ad litem survives the making of those “final” care orders.

Papers

‘Interim Orders – Parental Responsibility to the Minister – The Level and Extent of the Onus’

This is a revised paper by Robert McLachlan, Solicitor, delivered to the Annual St James Practitioner’s Conference on the 19 June 2004.

CLN 5 - August 2004

Supreme Court decisions

Re Josie [2004] NSWSC 642 – Levine J

The Children’s Court having, even on an interim basis, allocated sole parental responsibility to the Minister, cannot derogate in any way from the Minister’s power to exercise it.

Director-General of the Department of Community Services v Priestley [2004] NSWSC 639 – Young CJ

The Court declined to hear a matter urgently and in so declining said that if the Supreme Court is to re-examine a matter involving child protection, some very strong evidence that the decision of the Children’s Court did not pay enough attention to a matter that is so fundamental that children really and truly are at risk rather than there being a suspicion they might be.

Papers

‘Communicating with children over 10: If wishes were horses, beggars would ride’ A paper by Dr C.J. Lennings, University of Sydney

Recent changes in the law in New South Wales have changed the relationship between a solicitor and a child of 10 years or more. The paper reviews issues associated with the confidence a solicitor can have in communicating with a pre-adolescent and early adolescent child and the psychological factors such as temporal perspective and meta-cognitive processes that have to be taken into consideration. The paper reviews a recent case to highlight some of these issues.

CLN 4 - July 2004

Children’s Court decisions

In the matter of Re Nellie [2004] NSWLC 8 – Marsden CM

Child who suffered serious injuries from a shaking incident caused by one or both parents who denied causing the injuries returned to the care of the parents after an assessment of current risk factors.

Court of Appeal decisions

Re Andrew [2004] NSWCA 210

Joinder of the father in Supreme Court proceedings where there is a real risk to the mother and child – natural justice, proper contradict where question in the Supreme Court is one of law - whether service would pre-empt the decision of the Children’s Court.

Papers

‘The Children’s Court’s Power to Limit the Presentation of Evidence or the Cross Examination of Deponents of Documents’

A revised paper by Robert McLachlan Solicitor delivered to the Annual St James Practitioner’s Conference on the 19 June 2004.

CLN 3 - May 2004

Children’s Court decisions

In the matter of ‘Joe, Elaine and Lyle' – Schurr CM

The Permanency Plan filed proposed siblings be placed in long term out-of-home care together. At the final hearing the Director-General proposed placing the children separately. The court found there was no Permanency Plan for the children and adjourned the final hearing for the Plan to be prepared.

In the matter of ‘Adam and Michael’ – Truscott CM

Standard of proof, the meaning of “likely” - s 72 of the Children and Young Persons (Care and Protection) Act 1998 - It is only once the Court has found that the child is in need of care pursuant to s71 that it can then consider the question of what orders, if any to make, and it is then that the real possibility of harm or “unacceptable risk of harm” becomes the applicable test.

Papers

Contact Orders

A paper by Children’s Magistrate Ellis.

CLN 2 - March 2004

Children’s Court decisions

Police v LAH – Dive SCM

Whether s 138 can or should be applied to situations where the alleged crime and the evidence of that alleged crime flows from the consequences of an illegality or impropriety.

In the matter of Re Helen[2004] NSWLC 7 – Mitchell CM

Identifies circumstances that should be taken into account when making a contact order when a child is to be placed in out of home care with no prospect of restoration.

In the matter of Trent – Mulroney CM

The Court has no power to dispense with the giving of notice of a care application to a parent nor to service of documents on a parent.

Supreme Court decisions

R v Wilson [2003] NSWSC 1257

Sentencing of a foster carer for manslaughter of her foster child.

CLN 1 - January 2004

Supreme Court decisions

Director-General, Department of Community Services v Dessertaine [2003] NSWSC 972 – Greg James J

Whether it is necessary for the magistrate to determine all grounds asserted in the care application when finding that child is in need of care and protection and whether additional grounds can be considered when making a final order.

Court of Appeal decision

‘George’ v Children’s Court of New South Wales & 4 Ors [2003] NSWCA 389

Whether the Children’s Court has power to order the Director-General of the Department of Community Services to pay the fares and reasonable costs of parents accommodation to exercise contact with their child who is under the parental responsibility of the Minister.