Children's Law News Volumes 2008

 

CLN 10 - December 2008

Supreme Court decisions

KF v Parramatta Children’s Court [2008] NSWSC 1131– Hidden J.
Care proceedings - application for prerogative, declaratory relief - refusal by Children's Court magistrate to allow the mother to supply material to an expert for report - practice note no 30 - whether magistrate's leave required - effect of s 105 Children and Young Persons (Care and Protection ) Act 1998.

District Court decisions

Re Saunders and Morgan & Anor v Department of Community Services – Johnstone DCJ.
A realistic possibility of restoration - First, a possibility is something less than a probability; that is, something that it is likely to happen. Secondly, a possibility is something that may or may not happen. That said, it must be something that is not impossible. The section requires, however, that the possibility be ‘realistic’ which requires that the possibility of restoration is real or practical….‘sensible’ and ‘commonsensical’. Furthermore, the determination must be undertaken in the context of the totality of the Care Act, in particular the objects set out in s 8 and other principles to be applied in its administration.

CLN 9 - November 2008

Court of Appeal decisions

Director General of Department of Community Services; Re Sophie [2008] NSWCA 250 – Giles JA, Handley AJA and Sackville AJA.
Appeal from decision of District Court which allowed an appeal from a care and protection order made by the Children’s Court under s 71 (1) (c) of the Children and Young Persons (Care and Protection) Act 1998. Application for relief in that nature of certiorari under s 69 of the Supreme Court Act 1970 - EVIDENCE - Burden of proof – Allegation that father had sexually abused five year old daughter – whether trial judge correctly applied standard of proof – application of s 140 (2)(c) of the Evidence Act 1995 – whether matter should be remitted to the District Court.

Children’s Court decisions

In the matter of Hilary & Ors - SCM Mitchell
In the circumstances of this case the appropriate order for a refusal of contact is an order made pursuant to s 86(1)(c) of the Children and Young Persons (Care and Protection) Act 1998 rather than an order pursuant to s 90A.

Papers

Paper - Applications for Care Orders in the Children's Court: A Discussion Paper on the Current State of the Law
A paper by Robert Hosking, solicitor.

CLN 8 - October 2008

Supreme Court decisions

Re Paul [2008] NSWSC 960 – Hamilton J
FAMILY LAW AND CHILD WELFARE - Child welfare other than under Family Law Act 1975 (Cth) - Wards of Court - Supreme Court - Inherent jurisdiction to protect infants - Orders for Court’s consent to medical treatment of infants in lieu of parents’ consent - Whether order for wardship necessary. Decided – order for medical treatment made. No need for wardship order.

Children’s Court decisions

In the matter of Julia - SCM Mitchell
Application for assessment pursuant to section 54 (1) of the C & YP (C & P) Act 1998. Whether the Children’s Court can make an order for assessment in relation to parenting capacity if person does not give consent. Whether adverse inference can be drawn by Children’s Court if person does not consent to or participate in the assessment.

Re Anthony [2008] NSWLC 21 - SCM Mitchell​
Ten-week-old child suffered severe injuries consistent with “Shaken Baby Syndrome”. Both parents denied culpability and supported each other in their individual denial of responsibility. Parents sought to introduce alternative medical explanations for injuries. Assessment concluded that only a medium risk of further injury existed if child returned to parents’ care. Briginshaw standard applied and permanency planning principles addressed. Child placed in kinship placement until 18 years with liberal contact to both parents.

CLN 7 - September 2008

Children’s Court decisions

In the matter of Earl & Tahneisha - SCM Mitchell
In considering the proposal for long-term care for Earl and Tahneisha the question of the children’s possible Aboriginal heritage arose. The definition outlined in s 5 of the Act was considered and it was found that the children were not of Aboriginal heritage and that the placement principles in s 13 of the Act did not apply.

Re Melanie - SCM Mitchell
Child born with severe medical problems. No realistic possibility of restoration to either parent. Permanency planning principle addressed (s 83 (7)) despite the lack of identified permanent placement. Children’s Court decisions in Re: Rhett and Re: Ashley cited with approval.

Papers

Re Alan: Do the requirements of s 90 apply to any application seeking to vary or rescind an interim order?
Robert MacLachlan, Solicitor.

‘Preparing and Running a s 90 Case. A Perspective from the Bench’
CM Mulroney.

CLN 6 - July 2008

Children’s Court decisions

Re – Samantha S - SCM Mitchell.
Samantha is a seventeen year old girl who suffers multiple disabilities including, in the majority psychiatric opinion, a mental illness. Samantha’s parents disagreed with this opinion and presented contrary expert evidence. The Children’s Court considered that in all other respects the parents’ care of Samantha was beyond reproach. However, considering several authorities from the House of Lords, the SCM affirmed the role of the Children’s Court is to decide what is in the child’s best interests even if that means putting aside the considered opinions of otherwise reasonable and appropriate parents.‘

Re Jillian and Jacinta [2008] NSWLC 23 – CM O’Brien.
The Children’s Court found that restoration was a realistic possibility and directed the Director-General to file a new care and permanency plan.

CLN 5 - June 2008

Children’s Court decisions

Re Ashley [2008] NSWLC 22 – SCM Mitchell.
The court, in considering the plans for the child, will perform a dual function namely determining whether it can make a final care order approving the plan on the basis that permanency planning has been adequately and appropriately addressed and, if it has been, determining whether the plan should be approved in that it properly addresses the safety, welfare and well-being of the child or young person.

Papers

'Re RHETT' - A Decision Misunderstood.
A paper by John Crawford Acting Magistrate and former Children’s Magistrate.

CLN 4 - June 2008

District Court decisions

Department of Community Services v SM and MM [2008] NSWDC 68.
Discusses the meaning of “exceptional circumstances’ in relation to an order for costs in section 88 of the Children and Young Persons (Care and Protection) Act 1998. The fact that these parents had to pay their legal costs as a result of the Department’s appeal is relevant to the consideration of exceptional circumstances.

Papers

Children and the High and Supreme Courts 2007-2008.
A paper by Andrew Haesler SC.

CLN 3 - May 2008

Supreme Court decisions

Re Alan [2008] NSWSC 379 – Gzell J.
Parens patriae jurisdiction – Parents dissatisfied with interim care order of Children’s Court – Order sought dismissing orders of the Children’s Court – Whether parens patriae jurisdiction should be enlivened only in exceptional circumstances – whether exceptional circumstances established – whether parents should pay costs of Department of Community Services and independent child’s representative.

Children’s Court decisions

Re: Lawrence [2008] NSWLC 24 - Bone M
The application of s 106A of the Children and Young Persons (Care and Protection) Act 1998 – examines "the circumstances that gave rise to the previous removal" in s 106A.

CLN 2 - March 2008

Supreme Court decisions

Director of Public Prosecutions v AB & ANOR [2008] NSWSC 115.
Sexual offences – child offender – jurisdiction of the Children’s Court – prosecution withdrawn – statutory effect – consequences of withdrawal – whether a certificate of acquittal can be given.

Children’s Court decisions

In the Matter of the BW Children – Truscott CM
The term “person” in s 79(1)(a)(iii) means an individual or natural person in his/her personal capacity and does not empower the Court to make s 79 Orders allocating of persons such as a Principal Officer of/or a Designated Agency.

In the Matter of Dyson – Mitchell SCM.
A baby with brain damage was placed in the long term parental responsibility of the Minister as the Court could not be satisfied that the baby’s twenty year old aunt would be able to sustain a placement in the long term.

CLN 1 - January 2008

Children's Court decisions

Re: Rhett - SCM Mitchell.
When deciding whether to make a care order the court should normally have before it a care plan which is sufficiently firm and particularised for all concerned to have a reasonably clear picture of the likely way ahead for the child for the foreseeable future.