Children’s Court Resource Handbook published

Update 14, May 2022

[1-0000] Care and protection matters — background material refers to P Gray, “Beyond placement: realising the promise of the Aboriginal and Torres Strait Islander Child Placement Principle” (2021) 33 JOB 99 at [1-0027].

Care tree, written and updated by his Honour Magistrate Paul Hayes, has been inserted at [2-0500] and includes the following topics:

  • parties, the right of appearance and principles of participation
  • service
  • minute of care order
  • expedition and adjournments
  • hearings, procedure and rules of evidence
  • unreasonable conduct and unrepresented litigants
  • application under s 61 first return date, interim contact order, long order, timetable
  • establishment hearing
  • directions in relation to the placement stage
  • joined application
  • assessment hearing and order
  • dispute resolution conferences
  • readiness hearing
  • final order, structure of proceedings and guardianship
  • s 90 application
  • guardian ad litem and amicus curiae-parents
  • re-listing for non-compliance with directions
  • emergency care and protection orders
  • Aboriginal and Torres Strait Islander placement principles and identification
  • parent capacity order
  • costs
  • order for supervision
  • prohibition orders
  • order for undertakings
  • withdrawal of care application
  • apprehended violence order, and
  • applications for contact orders.

[4-0000] Care and protection matters — important cases has been updated. The following cases have been added:

  • GR v Secretary, Department of Communities and Justice [2021] NSWCA 157 — when appointing a guardian ad litem where child or young person is incapable of giving proper instructions to legal representative, court is to consider discretionary factors in s 100(1) at [4-1310] Guardian ad litem
  • GR v The Department of Communities & Justice [2021] NSWSC 1081 — where restoration to mother not a realistic possibility due to ongoing unacceptable risk of harm at [4-2335] Realistic possibility of restoration
  • GR v Secretary, Department of Communities and Justice [2021] NSWCA 267 — where the court dismissed application to set aside subpoenas to allow child to live with mother or allow daily contact at [4-2340] Realistic possibility of restoration and dismissed application for a tutor at [4-1315] Guardian ad litem
  • GR v Secretary, Department of Communities & Justice [2021] NSWCA 301 — where court ordered Independent Legal Representative be appointed for young person under legal incapacity at [4-0815] Child Representatives/Independent Legal Representative (ILRs)
  • Y v The Secretary, Department of Communities and Justice (No 6) [2021] NSWDC 392 — court refused restoration due to appellant’s violence at [4-2345] Realistic possibility of restoration
  • Y v The Secretary, Department of Communities and Justice (No 7) [2021] NSWDC 477 — successful application by the Secretary, Department of Communities and Justice for a compensatory specified gross sum costs order due to exceptional circumstances pursuant to Care Act s 88 at [4-1120] Costs
  • Department of Communities and Justice (DCJ) and Cara (a pseudonym) [2021] NSWChC 3 — court has jurisdiction to make a prohibition order under Care Act s 90A against a parent whom does not have parental responsibility at [4-2015] “Parent” definition
  • AB & JB v The Secretary [2021] NSWDC 626 — maternal grandparents joined as a party to care proceedings at [4-1515] Joinder
  • A v Department of Communities and Justice [2021] NSWSC 937 — proceedings dismissed due to no identifiable common questions of law or fact and matter not properly constituted as a representative action at [4-1640] Jurisdiction
  • Secretary, Department of Communities and Justice v KH [2021] NSWCA 308 — motion by Secretary granted to stay District Court orders pending determination of judicial review application at [4-2350] Realistic possibility of restoration
  • CM v Secretary, Department of Communities and Justice [2021] NSWSC 1442 — Guardian ad litem appointed because mother not capable of adequately representing herself within Care Act s 98(2A), and incapable of giving proper instructions to legal representative within s 101 at [4-1320] Guardian ad litem
  • JH v Secretary, Department of Communities and Justice [2021] NSWSC 1539 — summary dismissal of application for review of interlocutory establishment decision because no reasonable cause of action at [4-1645] Jurisdiction
  • Burton v DPP(NSW) [2021] NSWSC 1230 — Care Act s 105 prohibiting publication of names of children and young persons connected with care proceedings justified by liklihood of damage despite slight burden on implied freedom of political communication at [4-1410] Identification of children in the media

[8-0000] Criminal matters — important cases has been updated. The following new cases have been added:

  • Secretary of the Department of Communities and Justice v Rod Rivers [2020] NSWChC 9 — proper method of calculating extension of detention order under s 68(3) is to have reference to time at large and time in custody not referable to original offences for which parole order in question was made at [8-2010] Youth Parole
  • Secretary of the Department of Communities and Justice v Julian Minster [2020] NSWChC 10 — implied power for Children’s Court to rescind a parole revocation at [8-2015] Youth Parole
  • Hoskins v R [2021] NSWCCA 169 — appeal against severity of sentence allowed due to social disadvantage and hardship of Aboriginal applicant — primary judge erred in not applying Bugmy v The Queen (2013) 249 CLR 571 principles at [8-1915] Sentencing
  • EL v R [2021] NSWDC 585 — robbery armed with offensive weapon — appellant diagnosed with Autism Spectrum Disorder, Attention Deficit/Hyperactivity Disorder and Oppositional Defiant Disorder — presumption of doli incapax not rebutted — emotional maturity similar to someone aged between 10 and 12 years at [8-0850] Doli incapax.

[11-0000] Youth Koori Court

A new article has been added at [11-0040]: