​​

Children's Law News Volumes 2006

 

CLN 20 - November 2006

Supreme Court decisions

Re – Brett v Children’s Court of NSW [2006] NSWSC 984 (Sully J)
An application for leave to vary/rescind a care order is in one sense a procedural step taken in aid of a projected substantive application – this does not deprive the leave application itself of any substantive character as a process – in so far as a correct understanding of the ratio decidendi of Re Edward suggests otherwise then such ratio is erroneous. A decision regarding leave requires a discerning assessment of all of the criteria that are laid down by s 90(2) and (2a). Such an assessment could not be made except on the basis of relevant findings of fact, clearly articulated.

Re ‘Emily’ v Children’s Court of NSW [2006] NSWSC 1009 (Sully J)The related questions that the Court must answer when making a finding in relation to whether a child is in need of care and protection and when asked to make an order for interim parental responsibility are set out. Before making a ward ship order the Supreme Court would require a quite exceptional case – clear and cogent evidence of some egregious and otherwise irremediable impropriety or irregularity in the Children’s Court.

CLN 9 - October 2006

Court of Criminal Appeal decisions

Director of Public Prosecutions (NSW) v PM [2006] NSWCCA  Whether the DPP can bring proceedings in the District Court against a child by an ex officio indictment for an offence which is not a “serious children’s indictable offence” Section 31 Children (Criminal Proceedings) Act 1987 and s8 Criminal Procedure Act 1986 considered.

Supreme Court decisions

In Re Yasmine& Ors [2006] NSWSC 983 (Michael Grove J)
An order appointing a Guardian ad Litem is interlocutory in nature. A guardian ad litem can be discharged from appointment if, subsequent to appointment material is placed before the court that the person for whom the guardian ad litem has been appointed has become capable of giving instructions.

CASE SUMMARY ‘Arthur’ – Non-publication of name and identifying information' – An exception by order of the Children’s Court – Crawford CM

CLN 8 - September 2006

Supreme Court decisions

Re K&C and the Adoption of Children Act (2006) NSWSC 854
(Palmer J, 14 August 2006) Whether an independent Court expert should be appointed – the only expert opinion was that filed by an expert instructed by Barnardos and the Department of Community Services.

Application of A – re D [2006] NSWSC 1056
(Palmer J, 25 August 2006) Whether children should be adopted or remain fostered – whether general rule that adoption is preferable to foster care – relationship between the Adoption Act 2006 and the Children and Young Persons (Care and Protection) Act 1998.

Children’s Court decisions

In the matter of Amy (Murphy CM, 1 September 2006)
S 90 leave to vary contact order granted as agencies refused to accept referrals for long term foster placement for child.

Papers

‘Pro-active Representation of Children in Care Proceedings' - A paper by Robert James McLachlan.

CLN 7 - July 2006

Supreme Court decisions

D v Director General, Department of Community Services(Barrett J, 31 May 2006)
Privilege-Protected Confidences-where birth mother has made confidential Statements to doctor whose report she relies on-whether access should be refused-where issue is welfare of child-client legal professional privilege-where some communication for purpose not of litigation but for securing appropriate care. Interrogatories where parties other than birth mother contend that child is thriving with proposed adoptive parents and birth mother unaware of adoptive parents’ and child’s circumstances.

Children’s Court decisions

In the matters of Darren, James and Tenille (Mitchell SCM, 18 May 2006)
S 90 leave application by parents after child self-places into their care. Parties cannot rely on an illegal or improper act – or any circumstances flowing from such acts as a significant change in relevant circumstances to found a s 90 leave application.

In the matter of Ailsa (Mitchell SCM, 18 July 2006)
In a care application brought pursuant to leave granted under s90 of an order made by consent under s38, the Director-General must specify and prove a ground (or grounds) contained in s71.

Practice Directions

Practice Direction 24 ‘Case Management in the Care Jurisdiction’ and Practice Direction 25 ‘Expert Evidence in Care Proceedings'.

CLN 6 - June 2006

Court of Criminal Appeal decisions

BP v Regina, SW v Regina [2006] NSWCCA 172
Appeal against conviction - Appellants aged 11 and 12 at time of alleged offences - Doli incapax - Need for prosecution to prove beyond reasonable doubt that child between 10 and 14 knew that what he or she was doing was seriously wrong, not merely naughty or mischievous - Whether directions adequate - Whether jury's verdict reasonable.

Supreme Court decisions

Re Barbara & Ors [2006] NSWSC 303 (Barrett J)
Application by Director-General for final relief by way of order assigning to him care of three siblings, one 12 days old - proceedings pending in Children's Court - interim position secured by undertaking from grandmother.

Re Barbara & Ors [2006] NSWSC 413 (Gzell J)
Parens patriae jurisdiction - Application by Director-General of the Department of Community Services that the Minister of Community Services be allocated parental responsibility for three young children pending final determination of proceedings before the Children's Court - Whether grandmother had breached undertakings given to the court to act as a full time live in carer of the children.

Re Barbara & Ors [2006] NSWSC 536 (White J)
Director-General sought interim orders in Children’s Court allocating parental responsibility for three children to Minister – Children’s Court made interim orders substantially in accordance with orders sought by Director-General – Application by children’s parents for stay of orders of Children’s Court – Whether Supreme Court should exercise its parens patriae jurisdiction to grant stay of orders of Children’s Court – Parens patriae jurisdiction used in exceptional circumstances – Whether circumstances exceptional – Application dismissed.

Children's Court decisions

In the matter of Louis and Edna (Mitchell SCM)
Section 90 application by mother for rescission/variation of care orders - Interim application by mother for Children’s Magistrate who made final orders to disqualify himself from further dealings with the matter – Final orders previously made by Children’s Magistrate – Contention that determinations as to mother’s credit would lead to apprehension of bias – Test of Livesy’s Case applied – application for disqualification upheld.

CLN 5 - May 2006

Supreme Court decisions

Re Alistair [2006] NSWSC 411
Finding child in need of care and protection - challenge to Magistrate's decision to permit re-examination of evidence when considering placement - application res judicata/issue estoppel rejected - discretion to receive evidence miscarried - Magistrate when exercising discretion required to balance competing interests - In re B (Minors) Care Proceedings: Issue Estoppel (1997) 2 WLR 1 applied - pending criminal proceedings - appropriate remedy.

Children's Court decisions

In the matters of Julian and Allan (Crawford CM, 28 April 2006) S 83(7)(b) does not create a presumption instead it creates a threshold to be met before restoration to a natural parent and restoration plan is approved by the court - "permanency planning" is a requirement within the application of the broader principle of the "safety , welfare and well-being" being the paramount consideration, rather than being a principle (or requirement) that operates independently of that principle - unacceptable delay - child with physical and intellectual disability - proposal to move child from stable placement with grandparents to foster care - s 9(d) 'least intrusive intervention in life of child and family' considered- separation of siblings - supervised contact - duration limited - role of support person - costs.

In the matter of Cassandra (Mitchell SCM, 15 May 2006)Application for leave for recission of order under s 90 - whether s 90 is applicable to an order made under s 38 - an order made pursuant to s 38 is a care order - s 90 available to vary or rescind s 38 order.

CLN 4 - May 2006

Court of Criminal Appeal decisions

Tapueleul v R [2006] NSWCCA 113 (Grove, Simpson, Howie JJ)
Leave to appeal against severity of sentence - previous matters before Children's Court taken into account in adult proceedings - rejected - error in categorising offence - rejected - error in determining non-parole period - found - sentence manifestly excessive - found - application for leave granted.

Children's Court decisions

In the matter of Ingrid (Truscott CM, 15 March 2006)There are occasions when the Court can and should receive evidence from the Respondents to a leave application to file evidence - there is a distinction between a party having an entitlement to file evidence and the Court allowing the party to file evidence for the Court's assistance.

In the matters of Samantha, Nicholas, Chris, Campbell, Geoffrey, Cynthia and Byron (Mitchell SCM, 26 April 2006) Director -General's application for parental responsibility - events arising out of proceedings under Family Law Act 1975 - Orders inadequate to ensure adequate protection of the children.

Legislation

Child Protection (International Measures) Bill 2006 - Second Reading speech by Ms Alison Megarrity

CLN 3 - April 2006

Children's Court decisions

Department of Community Services and Raymond, Cristian, Tamsin, Jennifer and Karen (Swain CM, 13 February 2006)
Director-General's Application regarding breach of undertakings under s 73 - Undertakings not signed - result in undertaking never being made.

In the Matter of the Department of Community Services and Cristian, Tamsin, Jennifer and Karen (No. 2) (Swain CM, 27 February 2006)
Director-General's Application regarding breach of undertakings under s 73 and Application for leave to vary a Care Order under s90 - definition of "parent" under s 73(1)(a) - "parent" to be defined in accordance with s 3 of the Act - "parent" in s 73 does not include a natural parent without parental responsibility.

Police v MT (Farnan CM, YDAC, 9 March 2006)
Applications of 2 young offenders to YDAC program - Discretion under Cl 8.4(d) of Practice Direction 23 to exclude those assessed as eligible from the program - Impact of offence history and subsequent offences - applications rejected.

Papers

Supervision - A Proposal for Reform- a paper by Children's Magistrate Crawford

Justice Health - Cobham Court Consultation & Liaison Project

CLN 2 - March 2006

Children's Court decisions

In the matter of Jasper (Mitchell SCM, 30 January 2006)
Mother's application for leave pursuant to s 90 - issue to be determined in leave proceedings - distinction between leave proceedings and care proceedings - need to demonstrate "significant change in any relevant circumstances" (s 90(2)) - matters to be considered by the Court before granting leave (s 90(2A)).

UK case law

Meadow v General Medical council [2006] EWHC 146
Appeal - finding of serious professional misconduct - expert medical witness - misuse of statistics in evidence before criminal courts - immunity from suit of expert witness - duty of expert witness - immunity from suit not extended to disciplinary proceedings - disciplinary action only permissible where expert acts contrary to professional obligations to court.

UK publications

Review of infant Death Cases - Addendum to Report Shaken Baby Syndrome (14 February 2006)

CLN 1 - February 2006

Supreme Court decisions

R v LMW [1999] NSWSC 1342 and R v LMW [1999] NSWSC 1343 (Studdert J, November 1999).

Papers

Doli Incapax - The Criminal Responsibility of Children
A paper by Matthew Johnston. ​



 
  ​