Care appeal — child in need of care and protection — child approximately 6 years of age — no realistic possibility of restoration to either parent — child placed into foster care at a young age where he remained for almost 4 years — appeal by the Secretary and paternal grandmother against the Children’s Court decision to place the child’s care with the foster carer, and in lieu to place child into the paternal grandmother’s care — competing suitable persons — no credibility issue of witnesses — analysis of s 83(3) placing child with a “relative” — consideration of “permanency” planning pursuant to ss 10A and 78A — short term and long term considerations — best interest of the child.

Care proceedings — care order — interim care order — safety plans.

Care and protection — care and protection orders — appeal from Children’s Court to District Court — whether the need for care and protection of the child has been established — general principles applicable — alleged sexual assault of children by mother — alleged mental health issues — lack of insight.

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.