Children’s Court of NSW Resource Handbook — Preliminaries

Re Lucinda Porter (No 2) [2023] NSWChC 2 — kinship/placement assessment requirements at [3-1000] Aboriginal and Torres Straight Islander placement principles

Re Malakhai [2022] NSWChC 6 — mother and child living in residential home without support and intensive parenting education program not provided contrary to recommendation of Family is Culture Report at [3-1000] Aboriginal and Torres Straight Islander placement principles

J & T v DCJ [2023] NSWDC 78 — non-acceptance of key aspects of evidence from an expert forensic psychologist relied upon by the DCJ [3-1200] Experts' reports

DN v Secretary, DCJ [2023] NSWSC 595 — Children's Court has jurisdiction to make s 90 orders once final care order has been made, or alternatively, by way of construction of s 4(c) at [3-1280] Jurisdiction

DCJ and Harry [2023] NSWChC 5 — overnight supervised contact, DCJ and Evie and Grace [2023] NSWChC 1 followed at [3-1480] Unexplained injury.

R v GW [2023] NSWSC 664 — unacceptable risks can be ameliorated by proposed conditions, service providers are prepared to address multiple underlying issues at [9-1100] Bail

R v JR [2022] NSWDC 618 — offender’s compulsive pattern of pornography use exacerbated mental health difficulties and contributed to offending behaviour at [9-1120] Brain science

R v Patrick [2023] NSWChC 4 — R v CL [2022] NSWChC 5 followed, jurisdictional limit at [9-1220] Jurisdiction

R v CL [2022] NSWChC 5 — determination that indictable offence may not properly be disposed of in a summary manner at [9-1220] Jurisdiction

Burton v DPP [2022] NSWCA 242 — s 105 Care Act not invalid for breach of implied constitutional freedom of communication at [9-1300] Non-publication and suppression orders

Cmr of Police, NSW Police Force v TM [2023] NSWCA 75 — respondent not entitled to the benefit of s 3A(2)(c)(ii) exception to s 3A(1) Child Protection (Offenders Registration) Act 2000 and was a registrable person required to report information to Commissioner of Police at [9-1320] Recording of conviction

TM v R [2023] NSWCCA 185 — failure to have regard to youth in assessing moral culpability and weight to be afforded to general deterrence at [9-1340] Sentencing

Carreno v R [2023] NSWCCA 20 — applicant’s youth taken into account but given less weight due to extreme violence and significant delay between offending and sentencing at [9-1340] Sentencing

Apulu v R [2022] NSWCCA 244 — no error in operation of principle of parity because co-offender sentenced in the Children’s Court at [9-1340] Sentencing

R v Thomas [2023] NSWChC 3 — graduation from Youth Koori Court and matter dismissed with a caution under s 33(1)(a)(i) at [9-1380] Youth Koori Court.

Abstract and a link to C Bower et al, “Fetal alcohol spectrum disorder and youth justice: a prevalence study among young people sentenced to detention in Western Australia”, published in 2018 at [12-8000]

Abstract and a link to N Reid et al, “Fetal alcohol spectrum disorder: the importance of assessment, diagnosis and support in the Australian justice context”, published in (2020) 27 Psychiatry, Psychology and Law Issue 2 at [12-9000].

Isles & Nelissen [2022] FedCFamC1A 97 — standard of proof for unacceptable risk of harm does not require civil standard of proof on the balance of probabilities, the court looks more to possibilities at [3-1400] Proof

Department of Communities and Justice (DCJ) and Janet and Xing-fu [2022] NSWChC 7 — standard of proof for unacceptable risk of harm, Isles & Nelissen [2022] FedCFamC1A 97 followed at [3-1400] Proof

Department of Communities and Justice (DCJ) and Bloom [2021] NSWChC 2 — test for realistic possibility of restoration at [3-1420] Realistic possibility of restoration

Department of Communities and Justice (DCJ) and Evie and Grace [2023] NSWChC 1 — restoration granted as mitigation of harm despite parents not providing an adequate explanation for children’s injuries at [3-1480] Unexplained injury.

Practice Note 17: Designated agencies in Children’s Court care proceedings at [6-1180]

Protocols at [6-3000]ff.

R v JH [2023] NSWSC 93 — a plea of guilty or a finding of guilt is not a necessary precondition to supervision on bail by Youth Justice at [9-1100] Bail

R v JB [2023] NSWSC 94 — Youth Justice can supervise a child on bail in the community where the child has pleaded not guilty to the offence at [9-1100] Bail

BDO v The Queen [2023] HCA 16 — presumption of incapacity under s 29(2) Criminal Code (Qld) not equivalent to moral wrongness required by common law (RP v The Queen (2016) 259 CLR 641) but is informed by it at [9-1140] Doli incapax

TA v R [2023] NSWCCA 27 — no essential requirement to expressly use the phrase “moral culpability” if the relevant factors in Bugmy are substantively addressed at [9-1340] Sentencing

R v Taumalolo [2022] NSWSC 1696 — sentencing for manslaughter and affray at [9-1340] Sentencing

DL v The Queen (2018) 265 CLR 215 — procedural unfairness due to departure from primary judge’s findings without giving notice to parties at [9-1340] Sentencing.

H Dhanji SC, J Roy and S McLaughlin, “Proving the criminal responsibility of children: RP v The Queen”, 2017 paper at [12-2000]

“Youth justice in Australia 2021–2022”, published in 2023 by the Australian Institute of Health and Welfare at [12-3000]

Abstract and a link to “Youth justice in Australia: themes from recent inquiries”, published in (2020) 605 Trends & issues in crime and criminal justice 1 by the Australian Institute of Criminology at [12-4000]

Abstract and a link to “What are the characteristics of effective youth offender programs?”, published in (2020) 604 Trends & issues in crime and criminal justice 1 by the Australian Institute of Criminology at [12-5000]

“Youth detention population 2022”, published in 2022 by the Australian Institute of Health and Welfare at [12-6000]

P Johnstone “Youth crime in NSW: An environmental scan”, paper presented at Local Court of NSW Southern Regional Conference 4–6 March 2020 at [12-7000].

Practice Note 13: Section 38 care plans at [6-1120]

Practice Note 14: Standardised care orders at [6-1140]

Practice Note 15: Requests for the provision of services to facilitate restoration in care proceedings at [6-1160].

Assessments by the Children’s Court Clinic at [2-3000]

“Parenting capacity” by T Donald and J Jureidini at [18-7000]

“Assessing parenting capacity in a child welfare context” by K Budd at [18-8000]

“Still unseen and ignored: tracking community knowledge and attitudes about child abuse and child protection in Australia” by J Tucci and J Mitchell at [7-4000]

“Parenting in a new environment: implications for raising sub-Saharan African children within the Australian child protection context” by H Tafadzwa Mugadza, V Williams Tetteh, A Renzaho and B Stout at [7-5000]

DCJ and Jacinta [2021] NSWChC 5 — refusal to consent to final orders; safety, welfare and well-being of the child are paramount at [3-1060] Care and protection

CM v Secretary, DCJ [2022] NSWCA 120 — not necessary for applicant to be legally represented before court appoints guardian ad litem at [3-1220] Guardian ad litem

Department of Communities and Justice (DCJ) and Lara [2017] NSWChC 6 — application for joinder under s 98(3) Care Act refused due to historical allegation of sexual assault of a child at [3-1260] Joinder

In re a Child [2022] NSWSC 671 — application for joinder refused due to lack of “genuine concern” under s 98(3) Care Act at [3-1260] Joinder

Harris (pseudonym) v Secretary, DCJ [2021] NSWCA 261 — Leave to appeal decision by Supreme Court to refuse to issue declaration denied as advisory opinion only, care proceedings heard in Children’s Court at [3-1280] Jurisdiction

Re Leonardo [2022] NSWSC 1265 — court in its parens patriae jurisdiction will intervene to make orders in the best interests of children in exceptional circumstances at [3-1340] Parens patriae

DCJ and Murphy [2020] NSWChC 12 — permanency plan must sufficiently identify or address cultural needs of child at [3-1380] Permanency planning

Secretary, DCJ v KH [2022] NSWCA 221 — summons for judicial review dismissed because reasons of primary judge were not an “ultimate determination” and therefore do not form part of the record at [3-1420] Realistic possibility of restoration

DCJ and Jamzie [2022] NSWChC 1 — test for restoration, Department of Communities and Justice (DCJ) and Bloom followed at [3-1420] Realistic possibility of restoration

Finn, Lincoln, Marina and Blake Hughes [2022] NSWChC 4 — application for supplementary Clinic Report to assess realistic options for children’s future and whether restoration to mother is possible at [3-1420] Realistic possibility of restoration

GR v Secretary, DCJ [2022] NSWCA 153 — insufficient prospects to justify grant of leave to appeal at [3-1420] Realistic possibility of restoration

R v ET [2022] NSWSC 905 — Bail granted under Bail Act 2013 ss 22 as special or exceptional circumstances shown at [9-1100] Bail

JD v Commissioner of Police, NSW Police Force [2022] NSWSC 911 — order that plaintiff breached a condition of bail set aside under Bail Act 2013 s 8(2) as finding of failure to comply with a bail condition made after sentencing at [9-1100] Bail

R v LM [2022] NSWSC 987 — bail refused as applicant failed to satisfy test of unacceptable risk under Bail Act 2013 s 19 at [9-1100] Bail

DPP (NSW) v PH [2022] NSWSC 1245 detention application refused as full-time incarceration not practically inevitable and ancillary finding of special circumstances at [9-1100] Bail

CW v R [2022] NSWCCA 50 — Dismissal of appeal as Bugmy principles correctly applied at [9-1340] Sentencing

Spinks v DPP [2021] NSWCCA 308 — Appeal against severity of sentence allowed due to no prior criminal convictions and to provide an opportunity for ongoing rehabilitation at [9-1340] Sentencing

DS v R [2022] NSWCCA 156 — sentences imposed manifestly excessive, appeal allowed at [9-1340] Sentencing

R v AR [2022] NSWCCA 5 — a Community Correction Order cannot be made unless a conviction is formally recorded, no discretion not to record a conviction for an indictable offence under s 14(2) Children (Criminal Proceedings) Act at [9-1340] Sentencing

R v Nerri [2022] NSWChC 2 — YKC Action and Support Plan complied with and prior offences dismissed under s 33(1)(a) Children (Criminal Proceedings) Act at [9-1380] Youth Koori Court

R v Linda [2022] NSWCHC 3 — YKC Action and Support Plan complied with and prior offences dismissed under s 33(1)(a) Children (Criminal Proceedings) Act at [9-1380] Youth Koori Court

M Whitbourne, “Youth Koori Court expanded under $20m Indigenous justice package”, Sydney Morning Herald, 18 July 2022 at [15-1200]

Sophie Beckett, “The significance of culture to wellbeing, healing and rehabilitation” 33(9) JOB 91 at [15-1200]

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.

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 [3-1220] 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 [3-1420] 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 [3-1420] Realistic possibility of restoration and dismissed application for a tutor at [3-1220] 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 [3-1120] 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 [3-1420] 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 [3-1180] 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 [3-1360] “Parent” definition

AB & JB v The Secretary [2021] NSWDC 626 — maternal grandparents joined as a party to care proceedings at [3-1260] 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 [3-1280] 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 [3-1420] 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 [3-1220] 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 [3-1280] Jurisdiction

Burton v Director of Public Prosecutions (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 [3-1240] Identification of children in the media

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 [9-1360] 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 [9-1360] Youth parole

Hoskins v R [2021] NSWCCA 169 — appeal against severity of sentence allowed due to social disadvantage and hardship of Aboriginal applicant at [9-1340] 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 [9-1140] Doli incapax.

E Ooi and S Rahman, “The impact of the NSW Youth Koori Court on sentencing and re-offending outcomes” Crime and Justice Bulletin No CJB248, April 2022.

Polsen v Harrison [2021] NSWCA 23 — Test is whether fair-minded lay observer might think judge might have pre-judged credibility of witness at Bias [3-1040]

CXZ v Children’s Guardian [2020] NSWCA 338 — Principles to be applied in determining whether person poses risk to safety of children under s 18 Child Protection (Working with Children) Act 2012 at Care and protection [3-1060]

The Secretary, Department of Communities and Justice v B [2020] NSWDC 736 — Care order where sexual assault of other child at Care and protection [3-1060]

Y (a pseudonym) v The Secretary, Communities and Justice (No 4) [2021] NSWDC 81 — Application by the Secretary, Department of Communities and Justice to set aside appellant’s subpoenas that seek production of documents at Care and protection [3-1060]

Children (Criminal Proceedings) Regulation 2021 at [7-0110]. This Regulation repeals and replaces the Children (Criminal Proceedings) Regulation 2016, which would otherwise be repealed on 1 September 2021 by the Subordinate Legislation Act 1989, s 10(2).

R v Connor Fontaine (a pseudonym) [2021] NSWSC 177 — Curfew conditions should not be used to attempt social engineering or for paternalistic interventions at Bail [9-1100]

Lacey (a pseudonym) v Attorney General for NSW [2021] NSWCA 27 — Stay may, in an appropriate case, include condition that matter be heard by female magistrate at Jurisdiction [9-1220]

Singh v R [2020] NSWCCA 353— Judge properly took into account applicant’s youth when sentencing at Sentencing [9-1340]

R v Lovett (a pseudonym) [2021] QCA 46 — Recording of conviction of juvenile did not render sentence manifestly excessive at Sentencing [9-1340]

S Duncombe, “The trauma-informed approach of the NSW Youth Koori Court” (2020) 32(3) JOB 21 at [15-1120]

S Norrish, “Thirty years on from the Royal Commission, what can judicial officers do?” (2021) 33(3) JOB 29 at [15-1140]

Adoption of B [2019] NSWSC 908 — Test whether child an Aboriginal person under s 4 Adoption Act at Aboriginal and Torres Strait Islander placement principles [3-1000]

Hackett (a pseudonym) v Secretary, DCJ [2020] NSWCA 83 — Test whether child an Aboriginal person under s 4 Adoption Act at Aboriginal and Torres Strait Islander placement principles [3-1000]

DCJ and Ryan Masters [2020] NSWChC 7 — applicant shared parental responsibility with Minister for cultural up-bringing, sufficient interest in welfare of child to enable standing at Aboriginal and Torres Strait Islander placement principles [3-1000]

DCJ and the Stonsky Children [2019] NSWChC 8 — Permanency principles and adoption at Adoption [3-1020]

DCJ and Jake [2020] NSWChC 2 — Permanency principles and adoption at Adoption [3-1020]

JE v Secretary, Department of Family and Community Services [2019] NSWCA 162 — judicial review of appeal from Children’s Court to District Court for denial of procedural fairness at Care plans [3-1080]

Department of Family and Community Services and the Jacobs children [2019] NSWChC 11 — finality of litigation, extension of time for filing of the supervision report not permissible at Experts’ reports [3-1200]

GR v The Department of Communities & Justice [2020] NSWSC 1622 — ILR should be removed and guardian ad litem appointed at Guardian ad litem [3-1220]

Burton v Office of the Director of Public Prosecutions [2019] NSWCA 245 — non-publication order at Identification of children in the media [3-1240]

DFaCS and Amber [2019] NSWChC 10 — effect of late filing of Reports under s 82 Children and Young Persons (Care and Protection) Act 1987 (Care Act) and finality of litigation — when the jurisdiction of the Children’s Court ends at Jurisdiction [3-1280]

GR v Secretary, DFaCSJ [2019] NSWCA 177 — Parens patriae jurisdiction at Parens patriae [3-1340]

Secretary, DFaCS and Krystal [2019] NSWChC 6 — s 3 Care Act definition of “parent” at “Parent” definition [3-1360]

BA and LA v Secretary, DCJ [2019] NSWCA 206 — Judicial review by NSWCA pursuant to s 69 Supreme Court Act 1970 at Permanency planning [3-1380]

DCJ and Jack and Jill [2020] NSWChC 3 — meaning of “permanency plan involving guardianship” at Permanency planning [3-1380]

DCJ and Teddy [2020] NSWChC 1 — Short Term Orders s 79(9) Care Act at Short-term orders [3-1440].

PQR v DPP (NSW) [2020] NSWSC 731 — Tendency evidence at Admission of evidence [9-1000]

Gray v R [2020] NSWCCA 240 — 5-year-old complainant competent to give unsworn evidence at Admission of evidence [9-1000]

CO v DPP [2020] NSWSC 1123 — Magistrate erred by sentencing plaintiff without background report at Admission of evidence [9-1000]

BC v R [2019] NSWCCA 111 — Tendency evidence and doli incapax at Appeal [9-1040]

Kannis v R [2020] NSWCCA 79 — judge erred by relying on dissimilar sentencing decisions to identify sentencing range at Appeal [9-1040]

DPP (NSW) v SB [2020] NSWSC 734 — objective test of lawfulness of arrest under s 99(1)(b) Law Enforcement (Powers and Responsibilities) Act 2002 at Arrest [9-1080]

Pickett v WA (2020) 94 ALJR 629 — Adult enabler or aider criminally responsible despite child offender not having capacity at Doli incapax [9-1140]

Kindermann v JQ [2020] NSWSC 1268 — only final forensic procedure orders require hearing and representation — magistrate erred by finding interim order could not be made without representation and a hearing at Forensic procedure [9-1200]

R v Richard (a pseudonym) [2019] NSWDC 272 — accused unfit to be tried for serious sexual offences due to intellectual disability at Mental Health (Forensic Provisions) Act 1990 [9-1280]

AB (A Pseudonym) v R (No 3) [2019] NSWCCA 46 — Suppression and non-publication orders at Non-publication and suppression orders [9-1300]

R v Fay [2020] QCA 154 — recording of conviction set aside as sentencing judge failed to consider relevant countervailing factors and the pre-sentence report at Recording of conviction [9-1320]

Dungay v R [2020] NSWCCA 209 — judge erred by taking into account applicant’s criminal history as a child in Children’s Court at Recording of conviction [9-1320]

Watson v R [2020] NSWCCA 215 — orders invalid as applicant not a “registrable person” within s 3A Child Protection (Offenders Registration) Act 2000 at Recording of conviction [9-1320]

CA v R [2019] NSWCCA 93 — judge erred by not giving proper allowance for applicant’s age and deprived background at Sentencing [9-1340]

IM v R [2019] NSWCCA 107 — principles for sentencing juveniles convicted of terrorism offences at Sentencing [9-1340]

Howard v R [2019] NSWCCA 109 — applicant’s youth and immaturity, genuine remorse and gathering insight not properly reflected in sentence for throwing explosive with intent to burn at Sentencing [9-1340]

SW v R [2019] NSWCCA 194 — sentence for six sexual offences not manifestly excessive given offending significant and involved coercion and applicant’s prior record at Sentencing [9-1340]

JE v R [2019] NSWCCA 225 — unjustified disparity between applicant and co-offender’s sentence given respective moral culpability at Sentencing [9-1340]

BM v R [2019] NSWCCA 223 — judge failed to take applicant’s age and causative mental condition into account in assessing objective seriousness of offences at Sentencing [9-1340]

R v MW [2019] NSWDC 307 — sexual offence occurring when offender 15-years-old did not cross imprisonment threshold — Community Correction Order imposed at Sentencing [9-1340]

R v Flanagan; R v Brennan (a pseudonym) [2019] NSWDC 306 — parity principle applied to sentencing 18 years 10 months old offender and 17 years 10 months old offender for aggravated break and enter offence at Sentencing [9-1340]

Best v R [2019] VSCA 124 — sentence imposed manifestly excessive given early guilty plea, young offender, remorse, low risk of recidivism, family support and need for protective custody in adult gaol at Sentencing [9-1340]

LS v R [2020] NSWCCA 120 — sentence imposed manifestly excessive due to youth, ADHD and autism at Sentencing [9-1340]

WB v R [2020] NSWCCA 159 — sentencing judge erred by assessing objective seriousness on a collective basis and sentence manifestly excessive at Sentencing [9-1340]

Schembri v The Queen [2020] VSCA 217 — leave to appeal 5 year head sentence for sexual penetration of child and drug trafficking offences refused at Sentencing [9-1340]

TF v R [2020] NSWCCA 248 — disproportion between overall sentence and non-parole period — balance of term manifestly excessive at Sentencing [9-1340]

Robb v R [2019] NSWCCA 113 — offence committed during non-parole period while applicant on day release — judge erred in determining commencement date for sentence at Youth Parole [9-1380].

D v C; Re B (No 2) [2018] NSWCA 310 analyses the obligation on the court not to conduct proceedings in an adversarial manner.

A v Secretary, Family and Community Services (No 2) [2019] NSWSC 43 held the Supreme Court cannot resolve factual issues unresolved in the Children’s Court.

EC v Secretary, NSW Department of Family and Community Services [2019] NSWSC 226 where Barnardos successfully applied to be joined to proceedings under s 98(3) Care Act.

LZ v Secretary, Department of Family and Community Services [2019] NSWDC 156 where an appeal from Children’s Court to District Court to vary or rescind a care order was dismissed.

DFaCS and the Steward Children [2019] NSWChC 1 clarified “within a reasonable period” in s 83 Care Act.

DFaCS and the Prince Children [2019] NSWChC 2 held an Independent Legal Representative for one child has standing to bring an application for all siblings.

DFaCS and Leo [2019] NSWChC 3 granted leave to the Independent Legal Representative to bring an application pursuant to s 90 for leave to vary or rescind care order as no long-term permanency plan.

DFaCS and Bridget [2019] NSWChC 4 granted leave to vary or rescind a care order.

Secretary of the Department of Communities and Justice (DCJ) and Fiona Farmer [2019] NSWChC 5 held there was a realistic possibility of restoration of child to father within a reasonable period.

The role of holistic approaches in reducing the rate of recidivism for young offenders at [20-1000] by Associate Professor Jioji Ravulo.

Youth on Track randomised controlled trial: process evaluation by Lily Trimboli, NSW Bureau of Crime Statistics and Research.

Forensic evidence in child protection proceedings at [7-2000] by his Honour Judge Johnstone.

amendment to Children (Detention Centres) Act 1987 Pt 4C and the Victims Register at [11-1120]

Children (Detention Centres) Regulation 2015 at [7-0210].

Children’s Court Regulation 2019 at [7-0305].

R v RI [2019] NSWDC 129 Pt 3 Div 4 Children (Criminal Proceedings) Act 1987 applies where offender two days from his 18th birthday when offences committed.

R v Mercury [2019] NSWSC 81 held police interview inadmissible pursuant to s 13 Children (Criminal Proceedings) Act 1987.

DM v R [2018] NSWCCA 305court granted le ave to appeal severity of sentence.

Clarke-Jeffries v R [2019] NSWCCA 56 sentence appealed for using a carriage service to solicit child pornography material.

CA v R [2019] NSWCCA 93 applicant re-sentenced due to age and deprived background not being given proper allowance.

The Children’s Court of NSW: 2019 at [2-4000]

Children’s Court update 2019 (care and protection jurisdiction) at [2-5000].

The Children’s Court of NSW: 2019 at [5-0180]

Children’s Court update 2019 (criminal jurisdiction) at [8-1000].

Re A Foster Carer v DFaCS(No 2) [2018] NSWDC 71 where DFaCS paid appeal costs due to exceptional circumstances.

Re Benji and Perry [2018] NSWSC 1750 where “unacceptable risk of harm” test applied.

Hayward v R [2018] NSWCCA 104 held that reports made to DFaCS inadmissible in criminal proceedings in Supreme Court.

Secretary, Department of Family and Community Services v Hayward (a pseudonym) [2018] NSWCA 209 held that the risk of significant harm report and identities of makers of report inadmissible in criminal proceedings.

DFaCS and Nicole [2018] NSWChC 3 examines grounds for care orders under s 71 Care Act.

Committal proceedings at [11-1080].

State submissions in parole proceedings for terrorism related offences at [11-1120] under s 86 Children (Detention Centres) Act 1987.

AB (A Pseudonym) v R (No 3) [2019] NSWCCA 46 calculus of risk test applied in grant of suppression and non-publication orders.

DS v R [2018] NSWCCA 195 on admissibility of tendency evidence.

Johnson v The Queen (2018) 92 ALJR 1018 on propensity evidence in sexual assault trial.

R v ST [2018] NSWDC 22 where matter remitted to Children’s Court.

Campbell v R [2018] NSWCCA 87 where alternatives to full-time custodial sentence examined on appeal.

R v AH [2018] NSWSC 973 juvenile offender sentenced for terrorism offences.

Director of Public Prosecutions v Hutchison [2018] VSCA 153 non-custodial sentence for committing indecent act with child under 16, producing and possessing child pornography.

Honeysett v R [2018] VSCA 214 examined principles to be applied when determining weight given to participation in Koori Court.

R v BJ [2018] NSWDC 122 examined weight given to mitigating factors in sentencing juvenile co-offenders.

R v Alou (No 4) [2018] NSWSC 221 on sentencing juvenile offender for aiding and abetting commission of a terrorist act.

Expert clinical evidence in care proceedings at [7-3000]

DFaCS and the Eastway Children [2017] NSWCh 3 where Family Law Court was held to be the preferable forum in a private dispute not requiring involvement of the Care Act, the Children’s Court or the Department.

GO v S, DFaCS [2017] NSWDC 198 where the appellant was the great-grandmother of a child subject to care proceedings and carer of mother, leave was granted to adduce evidence as to suitability as an alternative carer of child.

R v Hayward [2017] NSWSC 1170 held that a s 29(1) report is not admissible in criminal proceedings in the Supreme Court.

DFaCS and the Slade Children [2017] NSWChC 4 held that the court does not have jurisdiction to hear a s 90 application where children not present in NSW or who are subject to a report.

Re Jeremy (a pseudonym); DM v S, DFaCS [2017] NSWCA 220 where it was held the judge erred in law failing to apply provisions of Act and the appellant was entitled to have court properly investigate the care situation.

Early intervention, diversion and rehabilitation from the perspective of the Children’s Court of NSW at [5-0150]

Updates in the Children’s Court jurisdiction at [19-1000]

Tikomaimaleya v R [2017] NSWCCA 214 where it was held that the judge did not err by admitting complainant’s pre-recorded interview with police

R v SG [2017] NSWCCA 202 where it was held that relevance under the Evidence Act is to be given wide interpretation and the trial judge had erred in not assessing probative value of evidence under s 137

Director of Public Prosecutions (NSW) v Saunders [2017] NSWSC 760 held that where an order issued that person must attend a psychiatrist/psychologist, the magistrate must name a particular place or person

Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206 an application for leave to appeal against refusal to grant permanent injunction restraining disclosure that child was in care was refused

NU v NSW Secretary of Family and Community Services [2017] NSWCA 221 where it was held that inability to make positive finding of abuse not ultimate determinative of unacceptable risk of harm

Director of Public Prosecutions (NSW) v GW [2018] NSWSC 50 arrest for breach of bail without consideration of alternatives is not necessarily improper and the evidence obtained not necessarily in consequence of impropriety

Ohanian v R [2017] NSWCCA 268 held that effects of childhood deprivation do not diminish and re-exercise of sentencing discretion warranted due to error

DJ v R [2017] NSWCCA 319 the applicant and Crown requested the District Court to pass sentence for related offences on a certificate under s 166 Criminal Procedure Act 1986

Cross-over kids: the drift of children from the child protection system into the criminal justice system at [1-0024]

Children’s Court: driving a paradigm shift at [17-3000]

Care and protection matters — important cases from [3-1000]

Criminal matters — important cases at [9-1000] and from [8-0265] for decisions concerning young offenders and from [8-0615] for decisions regarding sentencing.

Care appeals from the Children’s Court at [17-4000]

Children’s participation: a look towards the future at [17-1000]

Children’s Court update 2016 at [17-2000].

Secretary, Department of Family and Community Services; re “Lee” [2015] NSWSC 1276 where the court retained supervision of an almost 18-year-old person with challenging needs who was not capable of managing her own affairs. The court was not willing to discharge court orders upon the child attaining 18 years of age until appropriate replacement orders were put in place.

Police v DMO [2015] NSWChC 4 where the admission of a young person to a mental health facility pursuant to an order under s 33(1)(b) of the Mental Health (Forensic Provisions) Act 1990 did not operate to preclude the relisting of charges with regard to three offences.

Children (Criminal Proceedings) Regulation 2016 at [7-0110]

Young Offenders Regulation 2016 at [7-0550].

The Queen v GW (2016) 90 ALJR 407 where the High Court held the statutory presumption of competence to give unsworn or sworn evidence is only displaced where the court is satisfied on the balance of probabilities (s 142 of the Evidence Act) of the contrary. The Evidence Act does not give primacy to sworn evidence; it is neutral in its treatment of the weight that may be accorded to evidence whether it is sworn or unsworn.

JW v District Court of NSW [2016] NSWCA 22 where a single judge of the Court of Appeal held the Court of Appeal has jurisdiction to make interlocutory orders to set aside a District Court judge’s order refusing to grant a stay as procedural errors attended the committal process. The Court of Appeal does not have jurisdiction to set aside an order of a Children’s Court’s magistrate committing the applicant for trial for an offence as the Children’s Court is not a “specified tribunal” pursuant to s 48(1) Supreme Court Act 1970.

R v NK [2016] NSWSC 498 where the court held that, in the case of a 16-year-old school student charged with a terrorism offence, there must be exceptional circumstances to justify the granting of bail. The age of the applicant and vulnerability to adult persuasion or influence should be considered by the court and strict bail conditions set addressing bail concerns.

JB v R (No 2) [2016] NSWCCA 67 where the applicant was acquitted of murder committed when he was a child after an unsuccessful appeal to the Court of Criminal Appeal and special leave to appeal to the High Court was refused. The applicant sought an inquiry into his conviction under s 78 of the Crimes (Appeal and Review) Act 2001. Detailed analysis of evidence likely to be called at retrial was found to be unlikely to establish guilt.

RP v R (2015) 90 NSWLR 234 where the Court of Criminal Appeal held in dismissing a sentence appeal, the sentences imposed were not manifestly excessive and no lesser sentence was warranted. Despite the applicant’s youth and immaturity together with his low intellectual abilities, a s 9 bond was not an appropriate sentence; no lesser sentence than imprisonment was warranted. The applicant’s difficult time in custody did not justify suspension of the sentence.

TC v R [2016] NSWCCA 3 where a 55-year-old offender was convicted for an historical indecent assault offence committed when he was still a child at law. The sentencing judge convicted the applicant and imposed a 2-year good behaviour bond. The applicant appealed and sought to have the formal conviction expunged. The court considered whether the sentence was unreasonable or unjust and whether no lesser sentence was warranted in law. Leave to appeal was granted, appeal dismissed and sentence upheld.

Kiernan v R [2016] NSWCCA 12 where the applicant sought to appeal the sentence based on whether the offence was properly found to be within the mid-range of objective seriousness; whether applicant’s abusive upbringing was properly taken into account and whether sentence was manifestly excessive. Leave to appeal was granted but appeal dismissed.

Ingrey v R [2016] NSWCCA 31 where the applicant, an Aboriginal person, successfully appealed the sentence on the basis that the sentencing judge did not have regard to his subjective case including social disadvantage. The court allowed the appeal, quashed the sentence and re-sentenced the applicant.

Form 1: Application and report initiating care proceedings

Form 3: Application for rescission/variation or care order

Form 4: Application for contact orders

Form 5: Application for parent capacity order

Form 6: Application for variation or revocation of parent capacity order

Form 41: Contract breach notice

Form 42: Notification of breach of prohibition order.

In Secretary, Department of Family and Community Services (NSW) and the Knoll Children (Costs) [2015] NSWChC 2, an application for costs to be paid to the carers by the paternal grandmother were dismissed but allowed against the Secretary. The Children’s Court cannot make an order for costs in care proceedings unless there are exceptional circumstances that justify it in doing so. “Exceptional circumstances” are not exhaustively defined or limited by earlier decisions.

In TF v Department of Family and Community Services (NSW) [2015] NSWSC 694, an order of the Children’s Court was quashed due to jurisdictional error.

In RP v R [2015] NSWCCA 215, the sole issue at trial was that of doli incapax where the applicant was tried by judge alone for sexual offences committed when he was aged between 11 years 6 months and 12 years 3 months. The presumption will be rebutted more easily the older the defendant and the more obviously wrong the act.

In Siddiqi v R (Commonwealth) , a 19-year-old offender was sentenced for a drug offence. He had been before the Children’s Court seven years prior, where three offences were found proven but no convictions were recorded. The sentencing judge contravened s 15(1) Children (Criminal Proceedings) Act 1987 by considering the three prior offences and concluding that they did not entitle the offender to much leniency.

Practice Note 10: Parent capacity orders at [6-1100].

JL v Secretary, Department of Family and Community Services [2015] NSWCA 88 addressed arguments as to the meaning of some of the concepts in s 90(2) of the Children and Young Persons (Care and Protection) Act 1998, including the meaning of “relevant circumstances” and “arguable case”. Further, the court made comments about the relevance of the United Nations Convention on the Rights of the Child in considering an application for leave under s 90 and about the duties of a judicial officer to an unrepresented litigant.

Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89 concerned a challenge to a Children’s Court order placing a child under parental responsibility of the Minister until aged 18 years of age. It was held that 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]). The court also made some important observations in relation to the purpose and scope of s 106A of the Children and Young Persons (Care and Protection Act 1998 and made comments similar to those in JL v Secretary, Department of Family and Community Services (above) about the relevance of the United Nations Convention on the Rights of the Child and about the duties of a judicial officer to an unrepresented litigant.

Practice Note 11: Youth Koori Court at [15-1100]

R v GW [2015] NSWDC 52 concerned the doli incapax presumption that a child between 10 and 14 years is not criminally responsible in a case where a wooden bench was defaced with a graffiti item (a thick marking pen). Although the admission of a bail report could be used as a record of past findings of guilt to negative doli incapax, in this case, the manner in which the material was presented to the court (ie not in a form that complied with s 178 Evidence Act 1995) led to the reluctant conclusion that the evidence should be rejected.

R v RM [2015] NSWCCA 4 concerned seven charges, including aggravated indecent assaults on a child under 10, committed by a respondent who was a juvenile at the time the offences were committed. On appeal, it was contended that the sentencing judge had erred in a number of respects and that the sentences imposed were manifestly inadequate. Although the Court of Criminal Appeal found that the sentence was manifestly inadequate, after taking all circumstances into consideration, it chose to exercise its residual discretion, and declined to intervene to do other than correct the technical errors made by the sentencing judge.

Johan v R [2015] NSWCCA 58 concerned a juvenile with a serious drug habit and an intelligence that was assessed in the mild intellectual disability range. His offences involved the use of dangerous weapons, four armed robbery offences, aggravated break and enter, and most of the offences were committed in the company of another person. The appeal was dismissed on the basis that the sentence imposed was not manifestly excessive.

RL v R [2015] NSWCCA 106 concerned the sentencing of an adult for sexual offences committed as a juvenile and the effect of the delay between the commission of the offences and when the charges were laid. As to whether there was a need for the appeal court to determine the appropriate sentence, it was found that it is not sufficient to ask if an impugned sentence was within range (Kentwell v The Queen (2014) 88 ALJR 947 was applied).

RH v Director of Public Prosecutions (NSW) [2014] NSWCA 305 concerning an appeal case where young offenders were involved in an aggravated break and enter at a regional fire station. At issue was whether the Crown had rebutted the presumption of doli incapax. The Supreme Court held that the magistrate erroneously applied an objective instead of a subjective test. The Court of Appeal confirmed that the test is subjective. However, it held that it was not open on the material before the judge to then find beyond reasonable doubt that the presumption had been rebutted.

TS v Constable Courtney James [2014] NSWSC 984 where it was held that the Evidence Act 1995 (NSW), together with s 24 of the Crimes (Forensic Procedures) Act 2000 (NSW), apply to applications for forensic procedures.

Application of the Attorney General for New South Wales dated 4 April 2014 [2014] NSWCCA 251 concerning an order for the production of FACS reports regarding a deceased child made in criminal proceedings where the accused was indicted for the murder of the child. It was held that s 29 of the Children and Young Persons (Care and Protection) Act 1998 is constitutionally valid and should not be construed so as to preclude the accused in a criminal trial from compelling, by subpoena, production of s 29 reports that are relevant to the issues at the trial.

There is a need for the court to make a finding that permanency planning has been adequately addressed and approved of before final orders can be made — AQY & AQZ v Administrative Decisions Tribunal of NSW [2013] NSWSC 1028

Foster carers were entitled to an opportunity to be heard on matters of significant impact — Re June [2013] NSWSC 969

The making of adoption orders was clearly preferable to any other legal action which could be taken in respect of the care of the children — Adoption of SRB, CJB & RDB [2014] NSWSC 138

There was no obligation to prove that a police officer formed the view that it was impracticable to give information before exercising power to seize property to prevent a breach of the peace — Poidevin v Semaan [2013] NSWCA 334

A doli incapax cannot be rebutted merely by virtue of the commission of the offence itself — RH v Director of Public Prosecutions (NSW) [2013] NSWSC 520

Improperly obtained evidence from a vulnerable person excluded under ss 90, 138 and 139 of the Evidence Act 1995 — R v FE [2013] NSWSC 1692

Aggregate sentence for multiple offences including a serious home invasion was manifestly excessive given the applicant’s intellectual impairment, youth and absence of prior offending — PD v R [2012] NSWCCA 242

Sentencing judge erred in not giving proper attention to the fact that the applicant had a four-week old baby at the time of sentence — HJ v R [2014] NSWCCA 21.