CLN 2015

• CLN 1 - February 2015
  
• CLN 2 - June 2015

CLN 1 - February 2015

Supreme Court Decisions

CAC v Secretary, Department of Family & Community Services [2014] NSWSC 1855

FAMILY AND CHILD WELFARE - Protective (parens patriae) jurisdiction - welfare of children paramount - Interim care order of Children's Court challenge - Whether exceptional circumstances warranting intervention - No ground for intervention - Best interests of children favour maintenance of Children's Court proceedings - Supreme Court proceedings dismissed.

ADMINISTRATIVE LAW - judicial review - no ground made out - relief discretionary - engagement with protective (parens patriae) jurisdiction - Welfare of children paramount - Proceedings dismissed.

Re M; Application of YA [2014] NSWSC 1736

 FAMILY LAW AND CHILD WELFARE - Appeals - Procedure - Extension of time - Appeal from Children's Court's orders relating to parental responsibility of young person - No adequate explanation for delay - Safety, welfare and wellbeing of young person paramount - Not in interests of young person to grant extension of time - Proceedings dismissed.

Re Maddison [2014] NSWSC 1874

CHILD WELFARE - orders made in the parens patriae jurisdiction for recovery of child to be placed with father and for father to have authority to detain her - proceedings pending in Children's Court - Minister unable to provide secure accommodation - application by Minister to discharge orders and by father to vary orders.

Court of Appeal Decisions

JS v Secretary; Department of Family and Community Services [2014] NSWCA 441

ADMINISTRATIVE LAW - judicial review - appeal from Children's Court to the District Court - no appeal against judgment on statutory appeal to the District Court - whether error of law on the face of the record or jurisdictional error established.

FAMILY LAW AND CHILD WELFARE - child welfare under state legislation - contact orders - whether the primary judge erred in making non-binding 'notations' providing for contact rather than contact orders - whether the primary judge provided sufficient reasons for his decision - Children and Young Persons (Care and Protection) Act 1998 (NSW), s 86.

Re Felicity; FM v Secretary, Department of Family and Community Services (No 4) [2015] NSWCA 19

COSTS - application for costs order against legal practitioner - whether costs incurred by the misconduct of the applicant's solicitor - obligation of legal practitioner in conducting litigation - Civil Procedure Act 2005 (NSW) ss56 and 99.

COSTS - application for order against legal practitioner - supervisory jurisdiction of Supreme Court over legal practitioners - scope of jurisdiction under Supreme Court Act 1970 (NSW), s 23 - whether limited by Civil Procedure Act 2005, s 99.

STATUTORY INTERPRETATION - construing statutory language involving related concepts holistically - application of 'overriding purpose' under Civil Procedure Act 2005, s 56 - power of court to award costs against practitioner.

WORDS AND PHRASES - "serious misconduct" incurring costs "without reasonable cause" - Civil Procedure Act 2005, s 99.

Court of Criminal Appeal Decisions

MK v R [2014] NSWCCA 274

CRIMINAL LAW - conviction appeal - take without consent and indecent assault - evidence - competence of child to take oath - unsworn evidence by child - fundamental defect in giving unsworn evidence - appeal allowed - whether verdict unreasonable and not open on the evidence - identification by child witnesses -discrepancies in their descriptions - both child witnesses identify very distinctive feature of the assailant - whether open to jury to be satisfied beyond reasonable doubt as to identification of assailant - this ground of appeal dismissed - whether submissions by Crown gave rise to a miscarriage of justice - whether the trial judge gave appropriate directions to the jury - no miscarriage of justice - the ground of appeal dismissed - matter remitted to District Court for new trial.

R v DH; R v AH [2014] NSWCCA 326

CRIMINAL LAW - Crown appeal against sentence - robbery with an offensive weapon causing grievous bodily harm - whether sentence manifestly inadequate - whether sentencing judge erred in assessment of the prospects of rehabilitation of one respondent - consideration of the respondent's respective roles in the criminality - subjective circumstances of each respondent "wholly exceptional" - discussion of the discretion reposed in a sentencing judge.

Federal Circuit Court Decisions

Drake & Drake & Anor [2014] FCCA 295

FAMILY LAW - parenting - competing applications for live with order for six Aboriginal children by Aboriginal maternal grandmother and Department of Family and Community Services - children removed from the maternal grandmother during the course of proceedings without notice - maternal grandmother's long history with the Department - poor communication between the maternal grandmother and the Department - maternal grandmother's inadequate housing - superficial proposal by the Department for the children to connect with their culture - order made for the maternal grandmother to have sole parental responsibility for the children and for the children to be returned to the maternal grandmother.

CLN 2 - June 2015

Supreme Court Decisions

Adoption of BS (no 3) [2013] NSWSC 2033

FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - adoption - whether the making of an adoption order is clearly preferable to any other order that could be made with respect to the care of the child - where no realistic prospect of restoration of child to care of birth parents - where preserving the possibility of restoration would thus contravene the spirit of adoption principle (e1) - where proposed adoptive parents in a better position to facilitate contact with birth parents than the Department - where adoption would serve child's identity needs better than any potential alternative as it would confirm the child's identity with his psychological family while preserving the opportunity for him to know his birth parents and to understand why he does not live with them - held, that the making of an adoption order is clearly preferable to any other order that could be made with respect to the care of the child.

FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - adoption - whether consent of birth parents ought to be dispensed with - as the making of an adoption order would promote the child's welfare and be in his best interests, it is necessarily also in the best interests of the child to make a consent dispense order so as to allow the adoption order to be made.

Adoption of JWDA [2013] NSWSC 1991

ADOPTIONS - where prospective parents seek orders joining them to the proceedings as parties - interests of prospective parents cannot be disregarded - where it is proper that the prospective parents have an opportunity to put their position before the court.

Adoption of NG (no 2) [2014] NSWSC 680

FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - adoption - whether adoption order clearly preferable to any other order that could be made with respect to care of child - where no realistic prospect of restoration - where preserving possibility of restoration would contravene spirit of adoption principle (e1) - where due to history of prior placement instability child has accentuated needs of security and permanency - where adoption would serve child's identity needs better than any potential alternative as it would confirm child's identity with psychological family while preserving opportunity to know birth parents and to understand why does not live with them - where adoption plans make inadequate provision for birth parent contact - held, that making of an adoption order, in conjunction with orders securing birth parent contact, is clearly preferable to any other order that could be made with respect to care of child.

FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - adoption - whether consent of birth parents should be dispensed with - as making adoption order would promote child's welfare, necessarily also in child's best interests to make consent dispense order so as to allow the adoption order to be made.

Bell-Collins Children v Secretary of Family and Community Services [2015] NSWSC 701

FAMILY LAW AND CHILD WELFARE – appeal from decision of Presidential Children’s Court – application by great grandparents for joinder in proceedings – distinction between Children and Young Persons (Care and Protection) Act 1998, ss 87 and 98 – whether applicants had a “genuine concern for the safety, welfare and well-being” of the children – whether Court should exercise its discretion under Children and Young Persons (Care and Protection) Act 1998, s 87(3) to allow applicants to appear in proceedings and cross-examine witnesses – order to join applicants to proceedings made on terms.

TF v Department of Family and Community Services [2015] NSWSC 694

FAMILY LAW AND CHILD WELFARE – proceedings in Children's Court – interference by Supreme Court – parens patriae jurisdiction of Supreme Court – invocation of parens patriae jurisdiction.

JUDICIAL REVIEW - whether the Children’s Court had jurisdiction to make orders under the Children and Young Persons (Care and Protection) Act 1998, sections 4(a) and 4(c).

CERTIORARI – discretionary – quashed order of Children’s Court of New South Wales – jurisdictional error – usurping of jurisdiction.

Court of Appeal Decisions

JL v Secretary, Department of Family and Community Services [2015] NSWCA 88

ADMINISTRATIVE LAW – judicial review – appeal from Children’s Court to District Court – unsuccessful application for leave to apply to rescind care orders – application to Court of Appeal for relief pursuant to s 69, Supreme Court Act 1970 (NSW) – whether error of law on the face of the record or jurisdictional error established – whether District Court correctly applied provisions of the Children and Young Persons (Care and Protection) Act 1998, s 90.

ADMINISTRATIVE LAW – child welfare – care and protection of children – care and protection orders – procedural fairness – apprehended bias – allegation judge biased in approach to assessing applicant’s case – allegation of denial of procedural fairness.

ADMINISTRATIVE LAW – child welfare – care and protection of children – care and protection orders – international treaty obligations – relevance to exercise of discretion – United Nations Convention on the Rights of the Child.

CHILD WELFARE – child welfare – care and protection of children – care and protection orders – whether judge placed excessive or too little weight on applicant’s evidence.

Re Henry, JL v Secretary, Department of Family and Community Services [2015] NSWCA 89

ADMINISTRATIVE LAW – child welfare – care and protection of children – care and protection orders – judicial review – appeal from Children’s Court to District Court – application to Court of Appeal for relief pursuant to s 69, Supreme Court Act 1970 (NSW) – whether error of law on the face of the record or jurisdictional error established – whether District Court correctly construed and applied provisions of the Children and Young Persons (Care and Protection) Act 1998 – s 106A.

ADMINISTRATIVE LAW – child welfare – care and protection of children – care and protection orders – procedural fairness – apprehended bias – allegation judge biased in assessing applicant’s case – allegation of excessive intervention by judge in examination of witnesses by litigant in person.

ADMINISTRATIVE LAW – child welfare – care and protection of children – care and protection orders – whether judge placed excessive or too little weight on applicant’s evidence.

ADMINISTRATIVE LAW – child welfare – care and protection of children – care and protection orders – international treaty obligations – relevance to exercise of discretion – United Nations Convention on the Rights of the Child.

CHILD WELFARE – care and protection of children – care and protection orders – challenge to Children’s Court order placing child under parental responsibility of Minister until aged 18 years of age.

Court of Criminal Appeal Decisions

Johan v R [2015] NSWCCA 58

CRIMINAL LAW – appeal against sentence – whether there was failure to give appropriate weight to age and background when assessing moral culpability – whether sentence imposed was manifestly excessive – leave to appeal granted, but the appeal be dismissed.

Regina v RM [2015] NSWCCA 4

CRIMINAL LAW – Crown sentence appeal – child sex offences - seven charges - respondent pleaded guilty – respondent was a juvenile when offences were committed – sentence – five year good behaviour bond – suspended aggregate sentence of 2 years imprisonment – whether error in identifying qualified discount for remorse – whether error in imposing a suspended aggregate sentence – whether error in imposing a single bond for five offences - whether indicated sentences reveal error in aggregate sentence - whether aggregate sentence manifestly inadequate – whether indicating non-parole periods for indicated sentences was in error – whether individual bonds were manifestly inadequate – whether overall sentence was manifestly inadequate – residual discretion in re-sentencing.

RL v R [2015] NSWCCA 106

CRIMINAL LAW – sentencing – sentencing adult for sexual offences committed as juvenile – whether sufficient allowance made for applicant’s youth at time of offending – whether sentence accorded with sentencing principles applied at time of offending – no need for further rehabilitation.

CRIMINAL LAW – sentencing – whether planning of type which aggravates offence pursuant to s 21A(2)(n), Crimes (Sentencing Procedure) Act 1999 (NSW).

CRIMINAL LAW – sentencing – use of victim impact statement – statement not limited to harm directly resulting from offence.

CRIMINAL LAW – sentencing – whether to consider ground of manifest excess if specific error established – need for appeal court to determine appropriate sentence – not sufficient to ask if impugned sentence within range – Kentwell v The Queen [2014] HCA 37 applied – Criminal Appeal Act 1912 (NSW), s 6(3).

SB v R [2015] NSWCCA 31

CRIMINAL LAW – appeal – appeal against sentence –take and detain child – reckless wounding – where offender under 18 at time of offences – where offender suffers from mild intellectual disability – offender dealt with according to law - proper regard had to offender’s mental condition – sentence not manifestly excessive – no error in reference to standard non-parole period.

Papers

"Understanding Difficult Parental Behaviours During a Child Protection Investigation", Ainsworth, F and Hansen, P, Children Australia, vol 40, no 1, 2015, pp. 20-22.

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