Children's Law News Volumes

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    CLN 1 - May 2017

    ​​High Court of Australia Decisions

    RP v The Queen [2016] HCA 53

    Criminal law – Criminal liability and capacity – Doli incapax – Where appellant convicted of two counts of sexual intercourse with child under 10 years – Where appellant approximately 11 years and six months at time of offending – Where appellant found to be of very low intelligence – Whether presumption of doli incapax rebutted.

    Words and phrases – "doli incapax", "knowledge of the moral wrongness of the act", "merely naughty or mischievous", "morally wrong", "seriously wrong".


    Bondelmonte v Bondelmonte [2017] HCA 8

    FAMILY LAW – Family Law Act 1975 (Cth) – Parenting orders – Where children taken overseas by father – Where children stayed with father overseas in breach of parenting orders – Where mother applied for order for return of children – Where children expressed preference to stay with father overseas – Where primary judge made interim orders for return of children to Australia and for living arrangements upon return – Whether erroneous to discount weight given to views expressed by children – Whether father's breach of parenting orders relevant to children's best interests – Whether necessary to ascertain children's views as to living arrangements – Whether parenting orders could be made in favour of strangers to proceedings.

    WORDS AND PHRASES  "best interests of the child", "judicial discretion", "parenting orders", "views expressed by the child". Family Law Act 1975 (Cth), ss 60CA, 60CC, 60CD, 60CE, 64C, 65C, 65D, 68L, 68LA.

     

    NSW Court of Appeal

    SL v Secretary, Department of Family and Community Services [2016] NSWCA 124

    JUDICIAL REVIEW – review of decision of District Court on appeal from Children's Court – whether error of law on the face of the record or jurisdictional error established – whether District Court applied correct provisions of the Children and Young Persons (Care and Protection) Act 1998 (NSW)

    CHILD WELFARE – care and protection of children – child protection orders – where mechanism of injuries unexplained – no realistic possibility of restoration – challenge to Children's Court order conferring parental responsibility on maternal grandparents until aged 18

    STATUTORY INTERPRETATION – application of amended legislation – whether rights and liabilities accrued under pre-amendment legislation for purposes of s 30, Interpretation Act 1987 (NSW) – relevant rights and liabilities arising from court orders under review

    CIVIL PROCEDURE – independent legal representative, s 98A Children and Young Persons (Care and Protection) Act 1998 (NSW) – whether a child the subject of care proceedings who is incapable of giving instructions should be a party to proceedings

    WORDS AND PHRASES – "new hearing" – s 91, Children and Young Persons (Care and Protection) Act 1998 (NSW)


    AA v Secretary, Department of Family and Community Services [2016] NSWCA 323

    APPEAL – judgment in supervisory jurisdiction – challenge to refusal of relief – limits of supervisory jurisdiction – merit review properly eschewed – discretionary refusal of relief where alternative remedies available – claims for injunctions to prevent future conduct

    CHILD WELFARE – judicial review of decisions of Secretary – judicial review of orders of Children's Court – whether children of applicants at risk – challenge to formation of opinions – whether process legally flawed


    NSW Court of Criminal Appeal

    JB v R (No 2) [2016] NSWCCA 67

    CRIMINAL LAW – murder which occurred on 21 April 2008 – referral to Court of Criminal Appeal under s 79 Crimes (Appeal and Review) Act 2001 – concession by Crown that appeal must succeed and conviction be quashed – whether verdict of acquittal or retrial should be ordered – undertaking by Crown not to call a compromised witness on retrial – evidence of that witness very important in original trial – whether remaining evidence capable of proving applicant guilty of murder – detailed analysis of evidence likely to be called at retrial – evidence unlikely to establish guilt of applicant – verdict of acquittal entered.

     

    AB v R (Cth) [2016] NSWCCA 191

    BAIL APPLICATION – 17 year old – charged with intentionally doing an act in preparation for or planning a terrorist act – threatening posts on Facebook – psychiatric issues – history of threats and self-harm – significant improvement while in custody – whether exceptional circumstances established – whether applicant would pose an unacceptable risk if released – bail refused.

     

    LD v R [2016] NSWCCA 217

    CRIMINAL LAW – appeal against sentence – aggravated break, enter and commit serious indictable offence – where applicant was a child at the time of the offence – conceded failure of sentencing judge to apply provisions of the Children (Criminal Proceedings) Act 1987 – matter remitted

     

    BH v R [2016] NSWCCA 290

    CRIMINAL LAW – sentence appeal – manslaughter – guilty plea – juvenile offender – whether sentencing judge sentenced applicant on basis of factual findings not open – question of motivation for offence – whether sentence was manifestly excessive – appeal dismissed


    OK v R [2016] NSWCCA 318

    Sentence – juvenile offender – multiple offences – armed robbery in company – approach to sentencing youthful offenders – cognitive impairment – emotional immaturity – prospects of rehabilitation – whether sentence manifestly excessive.


    NSW Supreme Court

    Re Madison (No 2) [2015] NSWSC 27      

    FAMILY LAW AND CHILD WELFARE – application to vary orders for parental responsibility made under Court's parens patriae jurisdiction – whether the Department has failed to comply with previous orders

    FAMILY LAW AND CHILD WELFARE – orders sought for specific financial assistance – financial responsibility to provide for the child's needs – whether Court can intervene in exercise of administrative discretion regarding financial assistance

    FAMILY LAW AND CHILD WELFARE – orders sought to transfer proceedings from Children's Court to New South Wales Supreme Court – no exceptional circumstances to justify transfer

     

    Re Tilly v Minister for Family and Community Services [2015] NSWSC 1208

    FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – application to prevent removal of child from plaintiff's care – where allegations of mistreatment – where statutory obligation on department to remove child – whether Court can make orders inconsistent with statute – parens patriae jurisdiction – parens patriae power not capable of dispensing with statutory obligations – residual parens patriae power to remove child from Minister's care in aid of statutory care responsibilities – held, Court has power to make child ward of Court – whether Court should exercise parens patriae jurisdiction – best interests of child – where removal would undermine child's bonds with plaintiff – where need to protect child from risk of harm – where exercising jurisdiction would circumvent statutory child protection regime – held, Court should not exercise parens patriae jurisdiction.

    ADMINISTRATIVE LAW – judicial review – grounds of review – procedural fairness – whether rules of procedural fairness apply to decision of Children's Guardian to impose interim bar on plaintiff's performance of child-related work under (NSW) Child Protection (Working with Children) Act 2012 – where review mechanism specifically prescribed under Act through New South Wales Civil and Administrative Tribunal – held, decision not subject to rules of procedural fairness.

     

    Re v M (No 6) NSWSC 170            

    CIVIL PROCEDURE – appeal from the Children's Court regarding care orders made – appeal application dealt with by District Court judge – application for extension of time to commence appeal under s 91 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) ("Care Act") – Rule 50.3(1)(c) of the Uniform Civil Procedure Rules 2005 (NSW) considered – whether granting an appeal out of time would cause unfairness – held leave limited to delay – held discretion to grant leave be exercised in this instance

    CHILDREN – judgments and orders – application for leave for the rescission or variation of care orders under s 90 of the Care Act – children taken into care – Children's Court orders granted parental responsibility to children's fathers – mother sought leave to appeal for children to be restored in her care – whether or not there is a realistic possibility of restoration of a child or young person to the custody of the mother – whether there was significant change in relevant circumstances in considering leave – consideration of matters identified by mother – held mother has not demonstrated that she has full insight into her situation – held insufficient time to demonstrate consistent good parenting at the time of hearing – held none of the matters that the mother identified as being a significant change in relevant circumstances – held change in access to child as a further consideration – held further consideration needed for mother's access to the children and contact between siblings

    CIVIL PROCEDURE – application for leave for the rescission or variation of care orders – conditions of grant of leave considered – whether leave to appeal may be given only to certain aspects of a care order –
    whether leave should be subject to conditions – whether court has power to defer on a final ruling – invitation to counsel to provide further submission – discretion to grant leave not exercised in this instance

     

    Re M (No 8) [2016] NSWSC 641

    CIVIL PROCEDURE -- HELD extension of time for plaintiff to file her summons for leave to appeal under s 91 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care Act) granted

    CHILDREN – judgments and orders – application for leave to apply for the rescission or variation of care orders under s 90 of the Care Act – completion of proceedings the subject of the judgment in Re M (6): [2016] NSWSC 170 – HELD plaintiff has not demonstrated that her conduct is likely to change in a way that would justify the court in exploring the answers to the questions set out at [194] of the principal judgment – questions not considered – plaintiff's application dismissed

     

    Re Tanya [2016] NSWSC 794       

    CHILDREN - Care and Protection – whether there is a realistic possibility of restoration to mother- whether there is a realistic possibility of restoration to the father- contact- allocation of parental responsibility- intention of department to place the child with the father-previous orders opposed by mother- PROCEDURE- Appeal from the decision of the President of the Children's Court

     

    JP v Director of Public Prosecutions (NSW) [2015] NSWSC 1669                   

    CRIMINAL LAW – appeal under Part 5 of the Crimes (Appeal and Review) Act 2001 – plaintiff convicted in Children's Court of aggravated breaking and entering – prosecution case dependent on finding that plaintiff's fingerprint found at scene of break and enter – challenge to admissibility of fingerprint expert's conclusion that plaintiff's fingerprint found at scene – necessity for expert to set out the reasons for their conclusion – level of detail required – whether ground contending that expert certificate should not have been admitted involved a question of law alone – whether ground involved mixed question of fact and law – whether leave should be granted – expert certificate should have but did not reveal outcome of inspection of the fingerprints but no question of law alone arose – leave granted to raise ground involving mixed question of fact and law – ground failed – deficiencies in certificate rectified by expert's oral evidence – whether Magistrate's reasons for admitting certificate inadequate – whether Magistrate's reasons for convicting plaintiff inadequate – complaint not made out – whether Magistrate wrongly purported to apply different standard to admission of expert evidence in Children's Court compared to other courts – Magistrate did not apply that approach – whether Magistrate devolved decision making task to expert – complaint not made out – whether leave should be granted to challenge conviction – leave refused.

     

    R v NK [2016] NSWSC 498            

    CRIMINAL LAW – application for bail – rebuttable presumption against bail being granted to a person charged with a terrorism offence – exceptional circumstances to justify the granting of bail – youth of the applicant – vulnerability of youth to adult persuasion or influence – bail conditions appropriately addressing bail concerns

     

    RC v Director of Public Prosecutions [2016] NSWSC 665  

    CRIMINAL LAW – sentence – appeal from Children's Court constituted by the President – multiple property offences – break enter and steal, break and enter with intent, aggravated break enter and steal – some offences committed whilst on parole and other conditional liberty – young person with intellectual and emotional deficits – Attention Deficit Hyperactivity Disorder – need for supervision – length of non-parole period


    District Court

    C v The Secretary, Family and Community Services [2016] NSWDC 103

    CHILD CARE APPEAL – Aboriginal child in out of home care – parents unsuitable placement – whether parental responsibility should be allocated to the maternal grandmother despite a refusal by the Office of the Children's Guardian to issue her with a clearance to work with children

     

    Children's Court

    The Secretary, Department of Family and Community Services and the Marks Children [2016] NSWChC 2

    CHILDREN - Care and Protection - term "parent" - exclusion of father from proceedings (s 104A Care Act) - father and legal representative not to be served with materials (s 64(7)(a)(ii), - father prohibited from having contact with the children (s 90A)

     

    DFaCS re Eggleton [2016] NSWChC 4

    CHILDREN – Care and protection – realistic possibility of restoration – permanency planning


    The Secretary, Department of Family and Community Services and the Harper Children [2016] NSWChC 3

    CHILDREN - Care and Protection - realistic possibility of restoration - permanency planning - placement - allocation of parental responsibility

     

    Police v JC [2016] NSWChC 1

    Forensic procedure – suspect – suspicion on reasonable grounds


    Victorian Supreme Court of Appeal

    DPP v Martin (a pseudonym) [2016] VSCA 219   

    CRIMINAL LAW – Interlocutory appeal by Crown – Applicant facing two charges of incest involving biological sister – Prosecution seeks to lead other acts of misconduct as a child as 'context evidence' – HML v The Queen [2008] HCA 16; (2008) 235 CLR 334; IMM v The Queen [2016] HCA 14; (2016) 330 ALR 382 considered – Whether exclusion of 'context evidence' substantially weakens prosecution case – Trial judge rules against admissibility – Whether error in treating presumption of doli incapax as relevant when assessing admissibility of proposed uncharged acts – Presumption not relevant in way in which invoked – Criminal Procedure Act s 295(3)(a) – Appeal allowed – Matter remitted to trial judge for reconsideration in accordance with reasons of Court of Appeal.


    Victorian Supreme Court

    The Queen v M H K [2016] VSC 742

    CRIMINAL LAW - Sentence – Commonwealth Criminal Code s 101.6(1) - Act in preparation for a terrorist act – Plea of guilty – Maximum penalty life imprisonment - Youth - Accused constructing improvised explosive device – Islamic State propaganda – Islamic State recruiter providing information – Intention to carry out terrorist attack – "De-radicalisation" – Whether effective - Remorse incomplete – Contrition – Youth Justice order – Whether within sentencing range – Recommendation pursuant to s 471 Children, Youth & Families Act 2005.

     

    Western Australian Supreme Court of Appeal

    LCM v The State of Western Australia [2016] 164

    Catchwords
    Criminal law and sentencing - Young offender - Manslaughter of infant child of offender - Sentence of 10 years' detention - Mental impairment - Foetal alcohol spectrum disorder - Relevance of FASD to sentencing - Whether new evidence of FASD suffered by offender meant a different sentence should have been imposed


    Papers

     "Care Appeals from the Children's Court" - Paper delivered to District Court Conference on 29.3.16,  His Honour Judge Peter Johnstone, President of the Children's Court of New South Wales [722kB]

    "Cross-over Kids – The Drift of Children from the Child Protection System into the Criminal Justice System" - Paper delivered to Aboriginal Legal Service Conference on 5.8.16,  His Honour Judge Peter Johnstone, President of the Children's Court of New South Wales [440kB]

    "The Children's Court – Driving a Paradigm Shift" - Paper delivered to the Legal Aid Conference on 12.8.16, His Honour Judge Peter Johnstone, President of the Children's Court of New South Wales [447kB]

    CLN 2 - August 2017

    NSW Court of Appeal

    Tilley v Children's Guardian [2017] NSWCA 174

    CHILD WELFARE – applicant appealed from NCAT decision affirming refusal of Children's Guardian to grant working with children check clearance – applicant previously charged with disqualifying offences in circumstances where proceedings discontinued – whether applicant subject to assessment requirement within meaning of Child Protection (Working with Children) Act 2012 (NSW) s 14 – whether NCAT applied incorrect legal test and reversed onus of proof in determining whether satisfied that applicant posed risk to safety of children under s 18(2) 


    JW v District Court of NSW [2016] NSWCA 22

    JURISDICTION – Court of Appeal – Supreme Court Act 1970 (NSW), s 69 – order sought to set aside order of magistrate in the Children's Court committing applicant for trial – order sought to set aside judgment or order of the District Court refusing stay of proceedings – whether Court of Appeal has jurisdiction to grant the orders – effect of Supreme Court Act s 17(1) and Third Schedule – whether proceedings fell into category of exclusion provided by cll (a1) and (a2) of Third Schedule – order concerning the District Court proceedings not excluded 
     JURISDICTION – Court of Appeal – Supreme Court Act 1970 (NSW), s 48 – proceedings under s 69 concerning orders of a specified tribunal – District Court a specified tribunal under s 48(1) – Children's Court not a specified tribunal under s 48(1) 
    JURISDICTION – Court of Appeal – single judge sitting alone – jurisdiction of single judge of Court of Appeal to set aside judgment or order of District Court refusing stay of proceedings – Supreme Court Act 1970 (NSW), s 46(2)(b) 


    NSW Court of Criminal Appeal

    IS v Regina [2017] NSWCCA 116  

    CRIMINAL LAW – sentencing – aggravated robbery– intentionally destroy property– where robbery committed in company and under the influence of "ice" – where offender a juvenile – where offender's upbringing engages the principle in Bugmy v The Queen – where primary judge emphasised general deterrence and community protection – where primary judge accepted the offender's remorse and expressed confidence in his prospects of rehabilitation – balance between the principle in Bugmy v The Queen, remorse, rehabilitation and general deterrence – held that the primary judge erred in applying the principles applicable to the offender's deprived background – held that the primary judge erred in applying the principles applicable to the sentencing of juveniles


    DS v R [2017] NSWCCA 37

    CRIMINAL LAW – appeal – leave to appeal out of time granted – leave to appeal against sentence granted – whether there was a failure to pay proper regard to the fact that offences other than Count 1 could have been dealt with in the Children's Court – no miscarriage or serious injustice demonstrated, ground refused – whether there was a failure to take into account the applicant's immaturity other than in relation to the issue of rehabilitation – no failure demonstrated, ground refused – whether aggregate sentence imposed is manifestly excessive – appeal dismissed


    AL v R [2017] NSWCCA 34  

    CRIMINAL LAW – conviction appeal – three counts of sexual intercourse with a child under the age of 10 – complainant aged 4 to 5 – delay in bringing prosecution – whether trial judge failed to appropriately warn jury as to unreliability of complainant's evidence – s 165 Evidence Act direction – Murray direction - capacity of jury to assess evidence given in denial of charges – whether trial judge failed to adequately direct jury as to the burden and standard of proof – whether trial judge failed adequately to direct jury as to the accused's evidence – child accused – whether trial judge failed to adequately direct jury on question of doli incapax – RP v The Queen [2016] HCA 53 considered – whether verdict unreasonable or cannot be supported by the evidence – open to jury to find guilt beyond reasonable doubt – appeal dismissed


    R v AA [2017] NSWCCA 84

    CRIMINAL APPEAL – Crown appeal – sexual assaults upon children – five offences – offender under 18 when some offences committed – offences discovered and prosecuted when offender an adult – whether sentencing judge erred in affording Ellis discount – necessity to comply with s 23(2) of Crimes (Sentencing Procedure) Act – error made out – whether sentencing judge erred in assessing objective seriousness of offences – error established in relation to one offence – whether sentencing judge erred in referring to sentencing regime apposite to juveniles if offences discovered earlier – no error in doing so but sentencing judge misstated effect of sentencing provisions for children – whether sentencing judge double counted for offender's youth – no error established – whether sentencing judge erred in approach to accumulation – no error established – whether individual sentences manifestly inadequate – not established – appeal dismissed


    District Court

    R v AB [2017] NSWDC 179
    CRIMINAL LAW – Sentence: Young offender sexually assaulted when in care of Minister; wounding of carer; serious mental health issues; dysfunctional upbringing; assistance to authorities. 

    Child in need of care and protection: establishment hearing – onus of proof on the Secretary – fractures in non-ambulant child – whether more probably caused by inflicted injury or bone fagility

    Costs

    Victorian Supreme Court of Appeal

    DPP v MHK (a pseudonym) [2017] VSCA 157

    CRIMINAL LAW – Sentence – Crown appeal – Offence of doing acts in preparation for, or planning, terrorist act contrary to s 101.6 of Criminal Code (Cth) – Respondent sentenced to 7 years' imprisonment with non-parole period of 5 years and 3 months – Whether sentence manifestly inadequate – Respondent 17 years old at time of offence – Guilty plea – Culpability measured by nature and extent of planned terrorist act – Serious example of offending – High moral culpability – General deterrence, denunciation and protection of community paramount sentencing considerations – Personal mitigatory factors of limited weight – Sentence manifestly inadequate – Appeal allowed – Respondent resentenced to 11 years' imprisonment with non-parole period of 8 years and 3 months – R v Lodhi [2006] NSWSC 691(2006) 199 FLR 364 – Lodhi v The Queen (2007) 179 A Crim R 470 – Fattall v The Queen [2013] VSCA 226 – Elomar v The Queen [2014] NSWCCA 303(2014) 316 ALR 206.


    Western Australian Supreme Court of Appeal

    Jasmin v R [2017] WASCA 122

    Criminal law - Jurisdiction - Whether the appellant was aged under 18 years at the time of allegedly committing an offence - Whether the District Court or the Children's Court had jurisdiction to hear and determine the charge of the offence

    Criminal law - Jurisdiction - Appellant pleaded pursuant to s 126(1)(a) of the Criminal Procedure Act 2004 (WA) that the District Court did not have jurisdiction to deal with him - Onus of proof - Primary judge determined after a trial of issues that at the material time the appellant was of the age of 18 years - Primary judge rejected the appellant's plea under s 126(1)(a) and required the appellant pursuant to s 127(4) of the Criminal Procedure Act to enter a different plea to the charge - Whether the primary judge's conclusion that the appellant was of the age of 18 years was unsafe or not reasonably open 
    Criminal law - Federal offence - Appellant convicted in the District Court on his plea of guilty of an offence against s 232A of the Migration Act 1958 (Cth) - Appellant sentenced to the mandatory minimum penalty, for an adult, of 5 years' imprisonment with a minimum non­parole period of 3 years - The circumstances in which a conviction entered after a plea of guilty may be set aside on appeal


    Legislation

    Justice Legislation Amendment Bill 2017

    This Bill was passed by Parliament on 8 August 2017 and commenced as of the date of assent, on Monday 14 August.