Children's Law News Volumes 


CLN 2 - November 2019

NSW Court of Appeal

JE v Secretary, Department of Family and Community Services [2019] NSWCA 162

ADMINISTRATIVE LAW – judicial review – appeal from Children's Court to District Court – whether error of law on the face of the record or jurisdictional error established – where common ground that applicant not accorded procedural fairness 
ADMINISTRATIVE LAW – procedural fairness – common ground applicant denied procedural fairness – whether discretionary grounds to refuse relief – whether proceedings should be remitted to the District Court 
APPEAL – leave to appeal – where statement of claim in District Court struck out for disclosing no reasonable cause of action – discretion to extend time to apply for leave – where no explanation for 29 months delay – whether case is fairly arguable

GR v Secretary, Department of Family and Community Services and Justice [2019] NSWCA 177

FAMILY LAW – children – parental responsibility – parens patriae jurisdiction – child with condition requiring medical intervention – interim care order conferring parental responsibility on Minister – whether summons seeking to set aside interim care order should have been summarily dismissed 
PROCEDURE – appeal against summary dismissal of summons – plaintiff required to show cause why proceedings should not be dismissed – obligations of the Court to self-represented plaintiff – whether plaintiff had arguable case – appropriate orders on appeal


BA and LA v Secretary, Department of Communities and Justice [2019] NSWCA 206

CHILD WELFARE – parental responsibility allocated to Minister – final orders in Children’s Court – appeal to District Court – whether jurisdictional error or error of law on the face of the record of District Court –procedural unfairness – failure to tender evidence – relevant considerations

NSW Court of Criminal Appeal

IM v R [2019] NSWCCA 107

CRIME – appeal against sentence– where discount for utilitarian value of guilty plea in sentence for federal offence not taken into account – where error conceded by Crown – need to resentence 
SENTENCING – terrorist offence – conspiracy – preparation and planning of terrorist act or acts involving threat to human life – objective seriousness – significance of punishment, deterrence and protection of the community – mitigating factors – youth (14 years and 2 months at time of offending) and prospects of rehabilitation

BC v R [2019] NSWCCA 111

CRIMINAL LAW – appeal against conviction – appellant charged with child sexual assault offences against four young children – appellant found guilty and aggregate sentence imposed – counts one, two and three involved offences committed when appellant aged between 11 and 13 – whether guilty verdicts on those counts were unreasonable – whether Crown had rebutted doli incapax presumption – verdicts on counts one, two and three quashed – whether evidence of complainants admissible as tendency evidence on counts involving other complainants – whether probative value of evidence substantially outweighed prejudicial effect – appeal allowed in relation to conviction on counts one, two and three and dismissed in respect of counts four to twenty

Robb v R [2019] NSWCCA 113

CRIME — Appeals — Appeal against sentence — Application for leave to appeal — Misapplication of principle — Commencement date of sentence — Offence committed while on day release

Howard v R [2019] NSWCCA 109

CRIMINAL LAW – Sentence – Appeal – Sending an explosive substance with intent to burn – Whether offending premeditated – Whether immaturity played a part in the offending – Consideration of sentencing principles relating to youthful offenders – Whether sentence manifestly excessive

SW v R [2019] NSWCCA 194

CRIME - appeals - appeal against sentence – whether sentence manifestly excessive - applicant pleaded guilty to a number of sexual offences - three further offences taken into account on a Form 1 - offending occurred when the applicant was 15 and 16 years of age - complainant was the applicant’s stepbrother aged 10 and 11 years at the time - approximately 16 year delay in prosecuting the offences - whether the sentencing judge gave sufficient weight to the offender's youth and the delay - where the offending was significant - where the offences charged were representative offences - where the offending involved threats and a degree of coercion - consideration of how the offender would have been sentenced but for the delay - sentence not unreasonable or plainly unjust - appeal dismissed

JE v R [2019] NSWCCA 225

CRIMINAL LAW – sentence appeal – two offences of aggravated sexual assault in company, one count of aggravated indecent assault, one count of produce child abuse material – sexual assault by two school boys on female fellow student – whether unjustified disparity in sentences imposed – moral culpability of one offender greater than other – unexplained inconsistency in indicated sentences – disparity established – need to re-sentence.

BM v R [2019] NSWCCA 223

CRIME – appeals – appeal against sentence –whether sentencing judge failed to assess objective seriousness of offences properly – offending occurred when applicant was 13, 14 or 15 years old – causative mental disorder – appeal allowed – applicant re-sentenced

NSW Supreme Court


EQUITY- Adoption – Whether a child is an Aboriginal child for the purposes of the Act – Application of the Aboriginal child placement principles – Whether reasonable inquiries were made- When was a child ‘placed for adoption’ – Whether adoption order in best interests and clearly preferable- Where child has consented to own adoption

Adoption of B [2019] NSWSC 908

CHILD WELFARE – adoption – order – whether it is clearly preferable that an adoption order be made 
CHILD WELFARE – definition of “Aboriginal child” – whether the child is of Aboriginal descent

GR v Secretary, Department of Family and Community Services and Justice [2019] NSWSC 1073

FAMILY LAW – Children – Parens patriae jurisdiction – Whether Court should set aside care orders made by Children’s Court

GR and Secretary, Department of Family and Community Services and Justice [2019] NSWSC 1146

FAMILY LAW – children – parental responsibility – parens patriae jurisdiction – child with condition requiring medical intervention – interim care order confirming parental responsibility of the Minister – application by the mother to discharge interim orders made in related care proceedings and for parental responsibility to be restored to her – whether there are exceptional circumstances warranting the Court’s exercise of its parens patriae jurisdiction.

An Adoptive Father v Minister for Family and Community Service [2019] NSWSC 878

CIVIL PROCEDURE – Subpoenas – application to set aside – access to documents sought under notice to produce – two young persons were removed from the care of their father, the plaintiff, who had adopted them in an overseas country – the removal from the plaintiff took place under authority conferred by the Children and Young Persons (Care and Protection) Act 1998 and left the children under the care of the defendants, the Minster and the Department of Family and Community Services – grounds for removal were the plaintiff’s violence and alleged sexual abuse towards them – plaintiff admits a non-sexual assault on one child and is indicted for trial for alleged sexual assault on one child – Presidential Children’s Court proceedings confirmed the removal of the two children and ordered they be kept under the care and control of the Minister until the age of eighteen – the plaintiff brings an appeal from the President of the Children’s Court to this Court – plaintiff issues notice to produce – plaintiff abandons any contention on the appeal to this Court that the children should be restored to his care – plaintiff confines his appeal to submissions that an early foster carer of the children (“the first foster carer”) was unsuitable for the future care of the children and the children’s placement planning is inadequate – the first foster carer was since replaced by the defendants with new carers (“the second foster carers”) – the plaintiff does not challenge the continuation of the children’s care by the second foster carer – on the appeal the plaintiff issues a notice to produce for documents concerning the children’s care by the first foster carer – the defendants submit that the documents sought under the notice to produce are no longer relevant to the issues for trial – whether the plaintiff should be given access to the documents produced in accordance with the notice to produce.

An Adoptive Father v Minister for Family and Community Services (No.2) [2019] NSWSC 1305

CHILDREN AND YOUNG PERSONS – appeal to the Supreme Court under the Children (Care and Protection) Act 1998 (“the Care Act”), s 91 against an order of the Children’s Court allocating parental responsibility of two children to the Minister, the first defendant, under Care Act, s 79 – the two children were removed from the care of their father, the plaintiff, who had adopted them in an overseas country – the removal of the children from the plaintiff took place under authority conferred by the Care Act – children under the care of the Minster – grounds for removal were the plaintiff’s violence and alleged sexual abuse towards them – plaintiff admits a non-sexual assault on one child and is indicted for trial for an alleged sexual assault on the other child – the Presidential Children’s Court proceedings confirmed the removal of the two children and ordered that they be kept under the care and control of the Minister until the age of eighteen – the plaintiff brings an appeal from the President of the Children’s Court to this Court – plaintiff’s appeal does not challenge the finding of the Children’s Court allocating parental responsibility of two children to the Minister – plaintiff confines his appeal to grounds that an early foster carer of the children (“the first carer”) was unsuitable for the future care of the children and that the children’s permanency planning is inadequate in part because it does not exclude the risk that the children may have future contact with the first foster carer – the defendants have since replaced the first carer with new carers (“the second carers”) – the plaintiff does not challenge the continuation of the children’s care by the second carers – whether the plaintiff’s appeal is competent – whether permanency planning in respect of the children has been addressed – whether the Court should direct that a new care plan and a new permanency plan be filed – whether the plaintiff’s appeal should be dismissed

Child A v Hasler & Ors [2019] NSWSC 672

APPEAL – appeal from an order of the Children’s Court – application by police for an order permitting the carrying out of a forensic procedure – decision of the Magistrate to refuse leave to the suspect to cross-examine a witness to the application – question of whether evidence was illegally or improperly obtained by police – decision of the Children’s Court that the evidence was lawfully obtained – challenge to the making of an order

NSW District Court

R v Richard (a pseudonym) [2019] NSWDC 272

PROCEDURAL RULING – Fitness to stand trial - intellectual disability – child – serious sexual offences – fitness issue properly raised – referral to Mental Health Review Tribunal – criteria – accused unfit. 
EVIDENCE – Expert evidence – fitness to stand trial – uniform opinion that accused is unfit.

CRIMINAL – sentencing – aggravated indecent assault – offender’s intellectual functioning – young victims – age of offender at time of count 1

R v JA [2019] NSWDC 314

CRIMINAL LAW – sentencing – 3 convictions – one following a jury trial – 2 following guilty plea – historical child sex abuse

R v Flanagan; R v Brennan (a pseudonym) [2019] NSWDC 306

SENTENCING - Juvenile offender - To be dealt with “according to law”. 
SENTENCING - Non-parole period - special circumstances – principles to be applied. 
SENTENCING - Relevant factors on sentence – youth – immaturity – deprived background – long history of offending – drug use – intellectual disability – serious offending - aggravated break and enter – aggravated take and drive vehicle- knife used – on parole – aggregate sentence – totality – parity adult and child.

R v RJ [2019] NSWDC 468

Crime – sentence – juvenile - sexual intercourse with child under ten - indecent assault of child under 16

R v DN [2019] NSWDC 492

EVIDENCE — Admissions — Criminal proceedings — Improperly obtained 
EVIDENCE — Discretions — Exclusion of evidence — Admissions 
CRIME — Child sex offences — young offender

NSW Children’s Court

Secretary Department of Communities and Justice and Fiona Farmer [2019] NSWChC 5

CHILDREN - Care and Protection - realistic possibility of restoration

The Secretary of the Department of Family and Community Services (DFaCS) and Krystal [2019] NSWChC 6

CHILDREN – STATUTORY INTERPRETATION - Children and Young Persons (Care and Protection) Act 1998 – parties to care proceedings – meaning of “party” – definitions of “parent” and “parental responsibility” – right of appearance of parents from whom parental responsibility was removed prior to the commencement of the Care proceedings – joinder pursuant to s 98(3) – appearance of persons having a “genuine concern for the safety, welfare and well-being” of a child – consideration of s. 256A Children and Young Persons (Care and Protection) Act 1998 when person holding parental responsibility has been charged with sexual offences in relation to a child the subject of Care proceedings

Victorian Supreme Court of Appeal


CRIMINAL LAW — Sentencing — Three charges of sexual penetration of a child under the age of 16 years — Four related summary charges — Applicant sentenced to five years, three months and 21 days’ imprisonment with a non-parole period of three years — Whether sentences manifestly excessive — Early guilty plea — Young offender — Remorse — Low risk of recidivism — Family support — Need for protective custody in adult gaol — Principle of parsimony —Application for leave to appeal against sentence granted — Appeal allowed — Applicant resentenced to two years, 10 months and 21 days’ imprisonment with a non-parole period of one year and nine months.


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