Important cases — Care and protection

[3-1060] Department of Communities and Justice (DCJ) and Skyla [2023] NSWChC 12

Last reviewed: June 2024

Care and protection — establishment — availability of parent — no parent available.

DCJ and Evie and Grace [2023] NSWChC 1

Twin infants had healing fractures at multiple sites — most probable cause was the application of excessive force by a parent — parents unable to explain injuries and children were assumed into care and placed with their maternal great aunt — non-exhaustive list of factors in assessing safety at [53] — parents are intelligent, educated and engaged with services as recommended by the Department — parents have made the children available for medical assessments and reviews and have personally undertaken medical tests in search of a medical explanation for the injuries — parents have both attended psychologists to address concerns about their capacity to support their children — exposure of the harm will cause both parents to reflect on the way they have handled the children and to closely observe the other when handling the children — children’s maternal uncle and grandparents will remain connected to the children and are alert to any signs of physical distress — children attend childcare three days each week and are supported by a nanny — risk of harm has been sufficiently mitigated such that the children are likely to be safe in the care of their parents — realistic possibility of restoration of children to their parents.

Y (a pseudonym) v Secretary, Communities and Justice (No 4) [2021] NSWDC 81

Care and protection — application by the Secretary, Department of Communities and Justice to set aside appellant’s subpoenas that seek production of documents — no legitimate forensic purpose identified — subpoenas oppressive and too wide — fishing — subpoenas set aside.

Department of Communities and Justice and Jacinta [2021] NSWChC 5

Section 71 Care Act — Secretary, the parents and the Direct Legal Representative (DLR) reached agreement to allow child to return home immediately — Magistrate refused to make findings and orders by consent — s 9(1) Care Act requires that in any decision the court makes, the safety, welfare and well-being of the child are paramount — parental responsibility allocated to the Minister for Families, Communities and Disability Services until the child attains 18 years of age.

CXZ v Children’s Guardian [2020] NSWCA 338

Care and protection — principles to be applied in determining whether person poses risk to safety of children under s 18 Child Protection (Working with Children) Act 2012 (NSW) — primary judge erred by finding tribunal failed to discharge its function — M v M (1988) 166 CLR 69 does not require each allegation of risk to be assessed by a three-step process — tribunal properly assessed whether evidence disclosed applicant posed a risk — leave to appeal granted.

Secretary, Department of Communities and Justice v B [2020] NSWDC 736

Care and protection — care order — appeal from Children’s Court to District Court by plaintiff Secretary — need for care and protection of child established — sexual assault of other child — perpetrator not clear — mother had drug and mental health issues — lack of insight into seriousness of the injuries — general principles applicable — appeal allowed.

A v Secretary, Department of Communities and Justice (No 4) [2019] NSWSC 1872

Care and protection — allegation father sexually abused daughter — both children removed from parents and placed in care of Minister — children at unacceptable risk of harm — the ground for care orders under s 71(1)(c) has been made out in relation to both children — orders made by the Children’s Court confirmed.

Re Benji and Perry [2018] NSWSC 1750

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) Care Act — 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.

NU v NSW Secretary of Family and Community Services [2017] NSWCA 221

Care and protection — allegation father sexually abused daughter — appropriate test to be applied in cases of custody/ access to child — inability to make positive finding of abuse not ultimate determinative of unacceptable risk of harm — Browne v Dunn rule did not apply — no error of law demonstrated — summons dismissed.

AA v DFaCS [2016] NSWCA 323

Care and protection — whether actions of DFaCS under Care Act valid — father charged interstate but not convicted of indecent and sexual assault involving a child under 12 years — 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 and 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 — 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.

DFaCS re Eggleton [2016] NSWChC 4

Application under Care Act — 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.

Re June [2013] NSWSC 969

Application by foster carers challenging decision of 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) Care Act — whether magistrate failed to properly apply s 79(3) — 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 — 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.

Re Sophie (No 2) [2009] NSWCA 89

Care and protection — 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.

Re Jayden [2007] NSWCA 35

Care and protection — 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 Care Act considered — legal practitioners — parties to proceedings — whether legal practitioners appointed by the Children’s Court pursuant to s 99 Care Act to represent children the subject of proceedings should be named as parties to proceedings in the Supreme Court.

SB v Parramatta Children’s Court [2007] NSWSC 1297

Care Act ss 71, 106A — s 106A(1) obliges the court to admit any evidence adduced that a parent or care-giver of a child, the subject of a care application, has previously had a child removed from, and not restored to, their care and protection — presumption that the child, the subject of the application, is in need of care and protection — presumption under s 106A is not itself a ground for making a care order — the court must be satisfied there are grounds identified in s 71(1) before a care order is made — matter remitted to be heard and determined according to law.

Re Alistair [2006] NSWSC 411

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.