Care and protection matters — important cases

[4-0000] Children’s Law News

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[4-0100] Decisions concerning care and protection matters

[4-0110] Re Jayden [2007] NSWCA 35

Children — care and protection — care and responsibility — review of interim care responsibility orders — interim order conferring parental responsibility of children on Minister for Community Services — serious issue to be tried as to whether final order should be made — Director-General of the Department of Community Services obtaining discharge of contact order to enable Minister to send children to New Zealand prior to final order — whether this amounts to an abuse of process — ss 69, 70, 70A and 72 Children and Young Persons (Care and Protection) Act 1998 considered — legal practitioners — parties to proceedings — whether legal practitioners appointed by the Children’s Court pursuant to s 99 Children and Young Persons (Care and Protection) Act to represent children the subject of proceedings should be named as parties to proceedings in the Supreme Court.

[4-0120] Re Timothy [2012] NSWSC 524

Children — care and protection — administrative law — judicial review — grounds of review — jurisdictional error and procedural fairness — decisions of Children’s Court Magistrates — who may make application for interim order regarding placement — Aboriginal Care Circle.

[4-0130] Re Sophie (No 2) [2009] NSWCA 89

Children — care and protection — Children and Young Persons (Care and Protection) Act 1998 — application for care order — child welfare — whether child in need of care and protection — child infected with a sexually transmitted disease — whether child was sexually abused by the father who had the same sexually transmitted disease — onus of proof — history of litigation chequered — appeal — father seeking an order in the nature of certiorari quashing orders upon the ground of an error of law on the face of the record — whether trial judge failed to place onus on the Director-General of proving sexual abuse on the balance of probabilities — summons dismissed.

[4-0140] Re Alistair [2006] NSWSC 411

Children — care and protection — finding child in need of care and protection — challenge to Magistrate’s decision to permit re-examination of evidence when considering placement — application res judicata/issue estoppel rejected — discretion to receive evidence miscarried — Magistrate when exercising discretion required to balance competing interests — In re B (Minors) Care Proceedings: Issue Estoppel (1997) 2 WLR 1 applied — pending criminal proceedings — appropriate remedy.

[4-0150] Re Tracey [2011] NSWCA 43

Children — care and protection — Children and Young Persons (Care and Protection) Act 1998 — Convention on the Rights of the Child (CROC) — application by mother for parental responsibility — treaty obligations under the CROC may be a relevant consideration to the exercise of discretion in determining care application — judge erred in failing to take into account CROC Articles in exercising her discretion.

[4-0160] Re Hamilton [2010] CLN 2

Children — care and protection — application to rescind a care order and restore one child to the father — application for restoration abandoned — application for a contact order sought instead — whether contact with the father is in the best interests of the children — father has a serious criminal record for sexual offences against children and for indecent exposure — children exposed to domestic violence between the parents — possible sexual abuse and sexual grooming of the children by the father — meaning of “unacceptable risk of harm” — meaning of “permanency planning” — no realistic possibility of restoration — whether permanency planing has been appropriately and adequately addressed — importance of maintaining contact between siblings who are not placed together — children with special needs — autism and post traumatic stress disorder.

[4-0170] Re Campbell [2011] NSWSC 761

Children — care and protection — application under Children and Young Persons (Care and Protection) Act 1998 for s 90 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 [2011] NSWCA 43 — proposal by carer for adoption.

[4-0180] FaCS v Kestle [2012] NSWChC 2

Children — care and protection — application under Children and Young Persons (Care and Protection) Act 1998 for s 90 leave to vary or rescind care orders — relevance of arguable case for leave — consideration of Statement of Wishes by children — consideration of paramountcy principle in leave applications — discretion to restrict grant of leave to particular issue or issues — s 94(4) and granting of adjournments.

[4-0190] Re Victoria & Marcus [2010] CLN 2

Children — care and protection — leave to bring an application to rescind a care order — application of Aboriginal and Torres Strait Islander Placement Principles — importance of encouraging and preserving the children’s Aboriginal cultural identity — children with special needs — autism.

[4-0200] M v M FC 88/063 [1988] HCA 68

Children — care and protection — standard of proof for sexual abuse matters — wife’s allegation that the father sexually abused the daughter of the marriage — trial judge not satisfied that the father had sexually abused the child but considered that there was a possibility that the child had been sexually abused by the husband — in the interests of the child the risk of abuse would be eliminated by denying access to the husband, including supervised access — appeal to the Full Court of the Family Court dismissed — appeal to the High Court for an order that the father be granted access to the child — paramountcy of the welfare of the child — whether the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child — High Court dismissed appeal — to achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

[4-0210] AQY & AQZ v Administrative Decisions Tribunal of NSW [2013] NSWSC 1028

Children — care and protection — jurisdictional error — whether Administrative Decisions Tribunal of NSW has jurisdiction to review the decision of the Director-General of the Family and Community Services to not grant certain persons the responsibility for the daily care and control of the child — whether decision is one in relation to the preparation of a permanency plan or the enforcement of a permanency plan that has been embodied in, or approved by, an order or orders of the Children’s Court — need for court to make a finding that permanency planning has been adequately addressed and approved of before final orders made — ex tempore judgment — urgent matter — finding that the Tribunal had jurisdiction to entertain the application.

[4-0220] Re June [2013] NSWSC 969

Children — care and protection — application by foster carers challenging decision of the Children’s Court — whether magistrate erred in failing to admit relevant evidence — need to weigh advantages of admitting probative evidence against disadvantages of admitting improperly obtained evidence — whether magistrate failed to comply with s 9(2)(c) Children and Young Persons (Care and Protection) Act 1998 — whether magistrate failed to properly apply s 79(3) Children and Young Persons (Care and Protection) Act — whether foster carers were entitled to an opportunity to be heard on matters of significant impact — what constitutes an opportunity to be heard — s 87 Children and Young Persons (Care and Protection) Act — where an order may have a significant impact on a person who is not a party to proceedings, there is a need for that person to be given an opportunity to be heard on that issue — ex tempore judgment — whether foster carers have standing to seek relief under s 69 Supreme Court Act 1970 — if not, whether manifest defects in hearing before and reasons of Children’s Court constitute “exceptional circumstances” — whether Supreme Court may, in the exercise of parens patriae jurisdiction, grant relief under s 69 — order quashed and matter remitted to the Children’s Court to be heard by a magistrate other than the magistrate who made the order that has been quashed.

[4-0230] Adoption of SRB, CJB and RDB [2014] NSWSC 138

Children — care and protection — adoption — children were removed from their birth parents’ care pursuant to a child protection order, on the grounds, inter alia, that they were living in an unsafe environment due to issues of domestic violence and substance abuse (including alcohol, cannabis and heroin) on the part of their birth parents — whether making of adoption orders clearly preferable to any other legal action which can be taken in respect of the care of the children — focus of the adoption order must be on the best interests of the child, not the wishes and aspirations of the adoptive applicants or birth parents — factors to consider as to whether adoption order preferable to other long-term orders — finding that the making of the adoption orders were clearly preferable to any other action which can be taken with respect to the care of the children — ex tempore judgment — s 64B(2)(b) Family Law Act 1975 (Cth) — ss 8, 59, 67(1)(d), 90, 91, 118 Adoption Act 2000.

[4-0235] JL v S, DFaCS [2015] NSWCA 88

Children — care and protection — care and protection orders — unsuccessful application for leave to apply to rescind care orders — appeal — whether error of law on the face of the record or jurisdictional error established — whether District Court correctly applied provisions of the Children and Young Persons (Care and Protection) Act 1998, s 90 — whether judge biased in approach to assessing applicant’s case — whether there was a denial of procedural fairness — what are the duties of a judicial officer to an unrepresented litigant — relevance of international treaty obligations (United Nations Convention on the Rights of the Child) to exercise of discretion — whether judge placed excessive or too little weight on applicant’s evidence.

[4-0240] Re Henry; JL v S, DFaCS [2015] NSWCA 89

Children — care and protection — care and protection orders — judicial review — appeal from Children’s Court to District Court — whether the District Court correctly construed and applied the provisions of s 106A Children and Young Persons (Care and Protection) Act 1998 — challenge to Children’s Court order placing child under parental responsibility of Minister until aged 18 years of age — the court must assess, at the time the application is before it, whether there is a “realistic possibility of restoration”, that is to say, whether the “possibility of restoration is real or practical [and not] … fanciful, sentimental or idealistic, or based upon ‘unlikely hopes for the future’”: In the matter of Campbell [2011] NSWSC 761 (at [55]) — relevance of United Nations Convention on the Rights of the Child — what are the duties of a judicial officer to an unrepresented litigant.

[4-0245] S, DFaCS and the Knoll Children (Costs) [2015] NSWChC 2

Children — care and protection — application for costs under s 88 Children and Young Persons (Care and Protection) Act 1998 — application for costs to be paid to the carers by the paternal grandmother — whether there are exceptional circumstances to justify a costs order — application dismissed.

[4-0250] TF v DFaCS [2015] NSWSC 694

Children — care and protection — invocation of parens patriae jurisdiction of the Supreme Court — whether the Children’s Court had jurisdiction to make orders under ss 4(a) and 4(c) Children and Young Persons (Care and Protection) Act 1998— jurisdictional error — Children’s Court order quashed.

[4-0255] S, DFaCS re “Lee” [2015] NSWSC 1276

Children — care and protection — exercise of parens patriae jurisdiction — where orders in place for parental responsibility and secure accommodation — continued availability of jurisdiction where child soon to attain 18 years of age but is not capable of managing her affairs — importance of ability to detain and restrain child to ensure proper care — where guardianship order does not include powers to detain and restrain — where guardianship order does not provide adequate safety net as alternative to parental responsibility and secured accommodation orders — unwillingness to discharge court orders upon child’s attaining 18 years of age until satisfied appropriate replacement orders in place.

[4-0260] Police v DMO [2015] NSWChC 4

Children — care and protection — young person pleaded guilty to intimidating police office in execution of his duty — matter set down for defended hearing — whether admission of young person to mental health facility under s 33(1)(b) Mental Health (Forensic Provisions) Act 1990 (MHFP Act) operates to finalise charges — no decisions of intermediate or higher courts dealing with the interpretation of s 33 — an order under s 33(1)(b) where the person is detained in the mental health facility does not operate to finalise charges — s 33 provides court with a mechanism to have persons who appear to be suffering from mental illness to be assessed by an authorised medical officer at a mental health facility — the contention that once the person is admitted the charges cannot be relisted could not have been the legislature’s intention — no requirement in MHFP Act to establish link between offences charged and the mental illness.

[4-0265] Re Madison (No 2) [2015] NSWSC 27

Children — care and protection — parens patriae jurisdiction — application to vary orders for parental responsibility — orders sought for specific financial assistance — orders sought to transfer proceedings from Children’s Court to NSW Supreme Court — Minister in better position than father to discharge parental responsibilities — father’s financial request beyond Ministerial responsibilities — Supreme Court should not intervene, unless in exceptional circumstances, in proceedings that are ongoing in a specialist Tribunal which has been established to hear them.

[4-0270] S, DFaCS and the Marks Children [2016] NSWChC 2

Children — care and protection — application that father is not the children’s “parent” — alternative application to exclude father from the proceedings — exceptional circumstances — allegations of domestic violence, sexual interference, abduction and threats to kill the children — father in immigration detention — father and legal representative not to be served with materials — father prohibited from having contact with the children — father found to be a “parent” for the purposes of these proceedings — compelling reasons that it is in the children’s best interests that the father be excluded from proceedings — father poses unacceptable risk to the children.

[4-0275] S, DFaCS and the Harper Children [2016] NSWChC 3

Children — care and protection — mother’s application for restoration under Children and Young Persons (Care and Protection) Act 1998 — Secretary, DFaCS proposed care plan restoring children to their father — unacceptable risk of harm test — allegations mother deliberately injected fecal matter into eldest child via an intravenous line — mother poses an unacceptable risk of harm to children — no realistic possibility of restoration of the children to their mother — realistic possibility of restoration to their father.

[4-0280] DFaCS re Eggleton [2016] NSWChC 4

Children — care and protection — parens patriae jurisdiction — application under Children and Young Persons (Care and Protection) Act 1998 — application of the unacceptable risk of harm test — parental history of alcohol and drug abuse — accidental death of younger sibling — realistic possibility of restoration — strong and positive attachment between child and parents — magnitude of risk not sufficient to meet the threshold for unacceptable risk of harm.

[4-0285] Bondelmonte v Bondelmonte (2017) 259 CLR 662

Children — care and protection — children taken overseas by father in breach of parenting order — primary judge made interim order for children’s return pending further relocation orders — father’s appeal to the Full Court of the Family Court dismissed — father’s appeal to the High Court that the primary judge failed to take into consideration the views of the children in relation to the interim parenting orders — court not required to seek the views of the child but is required to consider any expressed view under s 60CC(3)(a) Family Law Act 1975 (Cth) — court not obliged to take into consideration the children’s views in the case of interim, temporary arrangements — parenting order may be made in favour of a parent of the child or some other person making interim orders in circumstances of urgency under s 64C Family Law Act — appeal dismissed.

[4-0290] SL v S, DFaCS [2016] NSWCA 124

Children — care and protection — judicial review in the supervisory jurisdiction of the Supreme Court — challenge to Children’s Court maternal grandparent parental order — whether District Court applied correct provisions of the Children and Young Persons (Care and Protection) Act 1998 subject to relevant amendments in 2014 — whether error of law on the face of the record or jurisdictional error — child suffered life-threatening head injuries when with mother — mother diagnosed with juvenile myoclonic epilepsy — whether injuries were non-accidental — whether child in need of care and protection — mechanism of injuries unexplained – no realistic possibility of restoration — whether there had been failure to make an appropriate contact order — whether reasons adequate for permanency planning — role of independent legal representative in care proceedings.

[4-0295] AA v DFaCS [2016] NSWCA 323

Children — care and protection — whether actions of DFaCS under the Children and Young Persons (Care and Protection) Act 1998 valid — father charged interstate but not convicted of indecent and sexual assault involving a child under 12 years — regular absences of oldest child from school — risk of harm report about the father’s alleged history of sexual assaults — risk of violence alerts — mother’s three older children from a former marriage assumed into care — older children living with biological father — DFaCS joined as an intervener in Family Court proceedings — older children subject to an emergency care and protection order — high risk birth alert issued for impending birth of child and any future children — whether DFaCS’s assumption of care order and the high risk birth alert valid — whether DFaCS statements about the children’s status and the character of the parents were misleading and should be withdrawn or removed from files — parents sought declarations, prerogative relief and damages — essentially sought judicial review of DFaCS decisions — claim for exemplary damages of $39 million — DFaCS case in totality conveyed a serious risk of harm — parents did not establish grounds for relief — allegations of misconduct against DFaCS officers not found — DFaCS not motivated by ill-will but acted in the children’s best interests.

[4-0300] Re M (No 6) [2016] NSWSC 170

Children — care and protection — appeal care orders made by a Presidential Children’s Court — Five children from three fathers removed from mother’s care — Children’s Court orders granted parental responsibility of the three youngest children to children’s fathers — whether realistic possibility of restoration to mother — mother pursued a peripatetic lifestyle, alienation from the fathers and her family, physical neglect, poor relationship with her children and a poor attitude to the DFaCS — mother not demonstrated that she had full insight into her situation — order for a rescission or variation of the care orders refused.

[4-0305] Re M (No 8) [2016] NSWSC 641

Children — care and protection — appeal by the mother for leave for rescission or variation of orders under s 90 Children and Young Persons (Care and Protection) Act 1998 — mother did not demonstrate that her conduct was likely to change in a way that would justify the court exploring the questions raised — application dismissed.

[4-0310] Re Tanya [2016] NSWSC 794

Children — care and protection — child with Down’s syndrome and intellectual disability — whether child in need of care and protection — restoration to mother not realistic possibility given relationship with a known paedophile — restoration to father realistic possibility.

[4-0315] Re Tilly v Minister, FaCS [2015] NSWSC 1208

Children — care and protection — parens patriae jurisdiction — application to prevent removal of child from temporary carer — carer accused of assaults against other children in her care — the presence of risk, as determined by the Children’s Guardian, an automatic bar to a person being engaged in child-related work — statutory obligation on FaCS to remove child — 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 — court has power to make child ward of the court — best interest of the child in out-of-home care — where removal would undermine the child’s bonds with the temporary carer — where need to protect child from risk of harm — where exercising jurisdiction would circumvent statutory child protection regime — court (not without regret) did not exercise parens patriae jurisdiction.

[4-0320] C v S, FaCS [2016] NSWDC 103

Children — care and protection — child placed in out-of-home care — placement into maternal grandmother’s care refused — refusal by Children’s Court to place the child in grandmother’s care because of the Office of the Children’s Guardian refusal to issue grandmother with the relevant clearance to work with children — reports from FaCS supported restoration to the grandmother — renewal of AVOs against child’s mother and abusive former spouse — orders of Children’s Court set aside — interim order for parental responsibility for the child to be allocated to grandmother — final orders to be made after FaCS prepares permanency plan.

[4-0325] DFaCS and the Eastway Children [2017] NSWChC 3

Children — care and protection — mother sought rescission of final Care orders — Secretary of Department consented to exercise of jurisdiction by Family Law Court (FLC) — mother sought FLC parenting orders for shared parental responsibility and for children to reside with her — father applied to Children’s Court for varying contact arrangements but not to vary parental responsibility allocation — mother withdrew Children’s Court application — mother and Secretary sought dismissal of father’s application — matter is a private dispute not requiring involvement of the Care Act, the Children’s Court or the Department — FLC is the preferable forum — case dismissed.

[4-0330] GO v S, DFaCS [2017] NSWDC 198

Children — care and protection — joinder of person with genuine concern for the welfare of a child to care proceedings — appellant great-grandmother of child subject to care proceedings and carer of mother — leave to appeal decision of Children’s Court for joinder — magistrate erred in finding that appellant and mother held same position in care proceedings — leave granted to appellant to cross-examine and adduce evidence as to suitability as an alternative carer of child.

[4-0335] R v Hayward [2017] NSWSC 1170

Children — care and protection — offences relating to physical abuse of a child — accused seeks to rely on subpoenaed material from the Department about mother’s history of inflicting injuries on the child/children — s 29 Children and Young Persons (Care and Protection) Act 1998 provides reports only admissible for limited proceedings in the Supreme Court — accused argued application to criminal proceedings in the Supreme Court — Second Reading Speech consulted and where reports are admissible intended to be “child welfare proceedings” — criminal proceedings do not fall within s 29(1)(d) even if the victim was a child — held s 29(1) report is not admissible in criminal proceedings in the Supreme Court.

[4-0340] DFaCS and the Slade Children [2017] NSWChC 4

Children — care and protection — application to transfer case management from NSW to Victoria — parental responsibility allocated to grandmother — grandmother and children moved to Victoria — children listed in AVO as persons in need of protection — orders sought by Secretary that care orders be rescinded, parental responsibility transferred to Minister and then to Victoria — court does not have jurisdiction to hear s 90 application where children not present in NSW or who are subject to a report — risk of harm reports not filed, so court unable to exercise function of the Children and Young Persons (Care and Protection) Act 1998 — appeal dismissed for want of jurisdiction.

[4-0345] Re Jeremy (a pseudonym); DM v S, DFaCS [2017] NSWCA 220

Children — care and protection — application for leave to vary care orders — significant change in any relevant circumstances — appellant mother of four children in the care of Minister — appellant sought orders of allocation of sole parental responsibility of two children — leave required for application s 90 Children and Young Persons (Care and Protection) Act 1998 — appellant entitled to have court properly investigate care situation — judge erred in law failing to apply provisions of Act — orders set aside, remitted to District Court for appeal.

[4-0350] Re A Foster Carer v DFaCS (No 2) [2018] NSWDC 71

Children — care and protection — s 88 Children and Young Persons (Care and Protection) Act 1998 — the appellant’s appeal costs to be paid by DFaCS due to exceptional circumstances — exceptional circumstances arose because DFaCS’s position was based on flawed care agency investigation report.

[4-0355] Re Benji and Perry [2018] NSWSC 1750

Children — care and protection — Children’s Court ordered children to be returned to their carers — “unacceptable risk of harm” test in M v M (1988) 166 CLR 69 — s 9(1) Children and Young Persons (Care and Protection) Act 1998 — necessary to balance possibility of harm if children are returned to their carers with probability of psychological harm if they are not returned — application dismissed.

[4-0360] Hayward v R [2018] NSWCCA 104

Children — care and protection — s 29(1)(d)(iii) Children and Young Persons (Care and Protection) Act 1998 — whether reports made to DFaCS admissible in criminal proceedings in Supreme Court — the phrase “in relation to” limits the scope of s 29(1)(d)(iii) to proceedings which affect the legal rights and interests of a child or young person in proceedings which concern their welfare — subpoena material which the applicant sought to admit is not admissible in the present proceedings in the Supreme Court — appeal dismissed.

[4-0365] Secretary, Department of Family and Community Services v Hayward (a pseudonym) [2018] NSWCA 209

Children — care and protection — ss 24, 29(1)(e), 29(1)(f)(ii) Children and Young Persons (Care and Protection) Act 1998 — s 29(1)(e) forbids use of compulsory process to produce or give evidence regarding contents of risk of significant harm report — no exception in criminal proceedings as s 29(1)(f)(ii) limits use to “proceedings relating to the report” — whether court in criminal case can compel disclosure of report makers’ identities — no power to order the Secretary to identify the maker of a report, nor to produce the unredacted reports, nor to provide information from which the identity of that person could be deduced — notice of motion dismissed.

[4-0370] DFaCS and Nicole [2018] NSWChC 3

Children — care and protection — s 71 Children and Young Persons (Care and Protection) Act 1998 — whether there is a realistic possibility of restoration — child is in need of care and protection — Secretary to prepare, file and serve Care Plan — case relisted for response to Care Plan.