Children's Law News Volumes 

CLN 1 - June 2019 

NSW Court of Appeal

D v C; Re B (No 2) [2018] NSWCA 310 

APPEAL – appeal to District Court – care and protection proceedings – extent to which court should depart from course agreed upon by parties – power of court to examine and cross-examine witnesses 
CHILD WELFARE – care and protection – final care orders – whether Court required to consider care plan and make findings regarding permanency planning before making orders granting parental responsibility for child to parent – whether such orders are "final care orders" – whether "final care orders" limited to orders removing child from parents on Secretary's application – Children and Young Persons (Care and Protection) Act 1998, ss 80, 83 
CHILD WELFARE – care and protection – nature of proceedings – obligation not to conduct proceedings in adversarial manner – power of court to examine and cross-examine witnesses – content of procedural fairness – extent to which court should depart from course agreed upon by parties – Children and Young Persons (Care and Protection) Act 1998, ss 93, 107 
CHILD WELFARE – care and protection – procedural fairness – obligations to child, parents of child and Secretary, Department of Family and Community Services – whether procedural fairness required adjournment where trial judge departed from case put by appellant and respondent sought to adduce further evidence 
JUDICIAL REVIEW – procedural fairness –content – scope of obligation to accord in non-adversarial jurisdiction   
STATUTORY INTERPRETATION – immediate context – structure of statute – importance of reading provisions in context and with regard to internal structure   
WORDS AND PHRASES – "final care orders" – "proceedings… are not to be conducted in an adversarial manner" – Children and Young Persons (Care and Protection) Act 1998, ss 78, 80, 83, 93

NSW Court of Criminal Appeal

DM v R [2018] NSWCCA 305 

CRIMINAL LAW – sentence appeal – parity - where the applicant was sentenced with respect to one count of sexual intercourse with a child aged 15 while in company contrary to s 66C(4) of the Crimes Act 1900 (NSW) – where an additional offence contrary to s 66C(4) was taken into account on a Form 1 – whether sentencing judge made a material factual error in finding the applicant was in a position of leadership in relation to the offending conduct – whether the applicant had a justifiable sense of grievance when comparing his sentence to that of his co-accused


Criminal law – Offences – Sentence – Using a carriage service to solicit child pornography material – Using a carriage service to procure a person under the age of 16 years to engage in sexual activity – Making an unwarranted demand with menaces – Where applicant sent messages to the victim to procure sexual activity – Where applicant sought money from the victim in exchange for destroying photographs she had sent to him – Where the findings of the sentencing judge largely favourable to the applicant – Applicant barely 18 years of age at the time of the offending – Victim 15 years of age – Not a case of grooming – Serious mental health issues prevailing at the time of the offending – Sentence of 4 years and 4 months imprisonment with a non-parole period of 2 years manifestly excessive in the circumstances – Applicant re-sentenced

CA v R [2019] NSWCCA 93 

CRIMINAL LAW – sentence appeal – specially aggravated break and enter and commit a serious indictable offence – applicant sentenced to imprisonment for 3 years and 9 months with a non-parole period of 2 years – applicant aged 12 years and 10 months – 78 year old woman severely beaten with bricks and a piece of wood – significant psychological and physical injuries – lack of contrition and remorse – whether proper allowance made for applicant's youth – whether proper allowance made for immaturity and impulsiveness of youth – whether proper allowance made for applicant's deprived and violent background – whether too much weight given to protection of community – whether proper allowance made for time in custody solely related to this offence – whether totality properly taken into account – whether sentence was manifestly excessive – one appeal ground made out – re-sentence.

NSW Supreme Court

R v Mercury [2019] NSWSC 81 

EVIDENCE — Discretions — Exclusion of evidence — Criminal proceedings –Objection to admissibility of alleged confession to murder – Confession contained in typewritten record of interview dated 29 April 1971 – Accused aged 17 years at time of interview – No parent, guardian, adult or lawyer present at interview – s 13 Children (Criminal Proceedings) Act 1987 (NSW) applies – Whether "proper and sufficient reason" for absence of a support person considered – No rules mandating presence of support person in 1971 – Low intellect, immaturity, disturbed upbringing, disturbed mental state and personal vulnerability of accused considered – Record of interview inadmissible in the "particular circumstances of the case"

A v Secretary, Family and Community Services (No 2) [2019] NSWSC 43 

ADMINISTRATIVE LAW – Judicial review – Parens patriae – Orders sought in relation to proceedings on foot in the Children's court and restoration supervision and parental responsibility of children – whether orders of prohibition and declaratory relief should be made – whether orders as to day to day care of child should be made – orders refused 
ADMINISTRATIVE LAW – Judicial review – Grounds of review – Error on the face of the record – Children's Court has no role in calling or testing evidence – Briginshaw v Briginshaw [1938] HCA 34 
ADMINISTRATIVE LAW – Judicial review – Grounds of review – Jurisdictional error 
ADMINISTRATIVE LAW – Judicial review – Grounds of review – Denial of procedural fairness 
FAMILY LAW AND CHILD WELFARE – Child welfare under State legislation – Children and Young Persons (Care and Protection) Act 1998 (NSW) , Div. 2 Pt 2 – Order requiring not the production of documents but their creation

EC v Secretary, Family and Community Services [2019] NSWSC 226

FAMILY LAW AND CHILD WELFARE – child welfare under state legislation – legal proceedings – appeal from Presidential Children's Court – application by Barnardos to be joined to proceedings – application under s 98(3) of the Children and Young Persons (Care and Protection) Act 1998 – whether a corporation can be a 'person' under s 98(3) – whether Barnardos had a 'genuine concern for the safety, welfare and well-being' of the children – whether Court should exercise its discretion under s 98(3)

NSW District Court

R v RI [2019] NSWDC 129 

Juvenile offender dealt with on indictment – whether to deal with offender according to law – opportunity lost to have matters dealt with in the Children's Court – discretion to declare offender not to be a registrable person


Child welfare - care and protection of children - care and protection orders - appeal from Children's Court to District Court - application for leave to apply to Children's Court to rescind orders made

NSW Children's Court

DFaCS & the Steward Children [2019] NSWChC 1 

CHILDREN - Care and Protection - whether there is a realistic possibility of restoration of children to their parents following their removal-s83 Care Act

Department of Family and Community Services (DFaCS) and the Prince Children [2019] NSWChC 2

CHILDREN – Care and Protection – whether the child is in need of care and protection: s 90 Children and Young Persons (Care and Protection) Act 1998

Department of Family and Community Services and Leo [2019] NSWChC 3

CHILDREN – Care and protection

Department of Family and Community Services and Bridget [2019] NSWChC 4

CHILDREN – Care and Protection – Leave to vary or rescind a care order