Children's Law News Volumes 2011

 

CLN 5 - November 2011

Supreme Court decisions

LS v Director of Public Prosecutions (NSW) and Anor [2011] NSWSC 1016
Claim for prerogative relief - summary prosecution in Children's Court - prosecution to call mother of defendant to give evidence - mother objects under s 18 Evidence Act 1995 - ruling that objection not available because of s 19 Evidence Act 1995 - construction of s 19 Evidence Act 1995 - error established - relief granted - recommendation for review of terms of s 19 Evidence Act 1995.

CL v Director of Public Prosecutions (NSW) [2011] NSWSC 943
Application for evidence of admissions to be excluded - admissions not tape recorded - whether s 281 of the Criminal Procedure Act 1986 only applies to offences being dealt with on indictment - whether s 281 of the Criminal Procedure Act 1986 has application to proceedings conducted in accordance with ss 26-31 of the Children (Criminal Proceedings) Act 1987 - discretion to admit evidence under ss 85 and 86 of the Evidence Act 1995.

Re Z [2011] NSWSC 1141
Appeal against orders of the Children's Court - s 91, Children and Young Persons (Care and Protection) Act 1998 - where judgment given by President of Children's Court - where judge refused to make a contact order under s 86, Children and Young Persons (Care and Protection) Act 1998 - contact between the plaintiff and his children would pose an unacceptable risk of harm to the children - appeal dismissed.

Papers

"Clinic Base Rates: 2007 - July 2008"
by Mark Allerton - Director, Children's Court Clinic.

"Mediation in Care Matters – a Review of the Outcome Literature"
by Anthony Vassallo MSW LLB (Hons.) - Children’s Court Registrar.

CLN 4 - October 2011

Supreme Court decisions

"RP" v Ellis & Anor [2011] NSWSC 442
Application for prerogative relief pursuant to section 69 of the Supreme Court Act 1970 or leave to appeal pursuant to section 53(3)(a) Crimes (Appeal and Review) Act 2001 in relation to committal proceedings - failure to exercise jurisdiction by a Magistrate - failure to apply proper test - failure to answer the question that the law prescribed - misunderstanding the true nature and content of the opinion that was required at law to be formed - doli incapax was an element of the offence - failure to consider that issue - order for committal should be quashed and matter remitted to the Children's Court to be determined according to law.

District Court decisions

Joy Alleyne as independent legal representative for LC v Director General Department of Community Services (No 2) [2009] NSWDC 171
Children and Young Persons - Appeals from Children's Court - Costs - what constitutes 'exceptional circumstances'.

XX v Nationwide News Pty Ltd [2010] NSWDC 147
Costs - orders for costs in the Children's Court - circumstances where such an order will be made - 'exceptional circumstances'.

Children's Court decisions

Director General of the Department of Human Services and Ellis-Simmons - Judge M.Marien SC
Costs - order for costs as a result of an application which was refused - conduct of legal representative - 'exceptional circumstances'.

Police v BS - Mulroney CM
Double jeopardy - charges establishing contravention of AVO - same facts for each offence - prosecution to elect which charge to proceed.

CLN 3 - September 2011

Court of Criminal Appeal decisions

SJ v Regina [2011] NSWCCA 160
Criminal law - offence of aggravated robbery - whether error in finding that applicant was not remorseful - whether principles governing sentencing of young offender applied.

Supreme Court decisions

V (a child) v Constable Joshua Hedges [2011] NSWSC 232
Costs - criminal proceedings in the Children's Court - where charges withdrawn and dismissed - no prima facie case on one out of six charges - whether magistrate erred in dismissing costs application.

District Court decisions

R v D [2011] NSWDC 73
Investigating official - unfair to the accused - admissions - discretion to exclude admissions - admissions by child to teacher - no support person - public policy.

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

Papers

"Article 12 of UNCROC and the Participation of Children in Statutory Child Protection Decision-making in Australia"
by Deborah de Fina.

CLN 2 - August 2011

Supreme Court decisions

In the matter of Campbell [2011] NSWSC 761
s 90 application for leave to vary or rescind care orders - significant change in relevant circumstances - arguable case - realistic possibility of restoration - least intrusive form of intervention principle - Re Tracey - proposal by carer for adoption.

District Court decisions

SM v Director-General of the Department of Human Services & SG [2010] NSWDC 250
Contact - whether contact should be supervised - who may be appropriate supervisor - consideration of s 86 & Re: Liam - frequency and duration of contact.

EL & WL v Director-General of the Department of Human Services & Ors [2010] NSWDC 248
Joinder of former carers - jurisdiction - not parties to Children's Court proceedings - genuine concern for the safety, welfare & wellbeing of children - whether court ought to exercise its discretion.

CLN 1 – June 2011

Court of Criminal Appeal decisions

R v SA, DD and ES [2011] NSWCCA 60
Criminal law – police powers to fingerprint and photograph – statutory construction – application of LEPRA and C(FP)A.

Court of Appeal decisions

Re Tracey [2011] NSWCA 43
Application of least intrusive intervention principle in s 9(2)(c) - Re Louise and Belinda [2009] NSWSC 534 - adequacy of care plan - consideration of UNICEF Convention on the Rights of the Child.

Papers

“Juvenile Justice and community-based sentencing for juveniles in New South Wales”
By His Honour Judge Marien SC – President of the Children’s Court of NSW.

Care proceedings and appeals to the District Court”By His Honour Judge Marien SC – President of the Children’s Court of NSW.

“Unacceptable Risk – a comparison of the Family Law and Care jurisdictions”
By Richard Chisholm BA, LLB, BCL; AM; Honorary Professor of Law, University of Sydney; Visiting Fellow, ANU College of Law; former Judge of the Family Court of Australia.