Children's Law News
2009
Number 7 - October 2009 (MS Word - 54kb)
CASELAW
Supreme Court Decisions
Re Louise and Belinda [2009] NSWSC 534 – Forster J
Section 72 was never intended to restrict or qualify the circumstances in which an order under section 90(1), rescinding or varying an existing care order, could be made. Section 71(1) is applicable where the Court is considering the fate of an application for care orders under sections 61 or 62 but not where the application is made under section 90 for the rescission or variation of an existing care order. “Harm” in section 90(d) includes an adverse effect on the safety, welfare and well-being of a child. Section 9(d) is not intended to promote either living with natural parents or living with carers. Absent considerations to the contrary, it promotes stability, absence of change and the maintenance of the status quo. Section 9(d) is ambulatory. In the case of a care application made under section 60 it has the effect of requiring the court to be reluctant to remove a child from its natural parents unless there is a compelling reason to do so. Where an application is made under section 90 the least intrusive form of intervention would normally mean not interfering with existing care arrangements. The force of the requirement imposed by section 9(d) will vary from case to case, and a court will undoubtedly have regard inter alia to the strength of the respective bonds that a child may have with his or her natural parents and his or her foster carers
Re Thomas [2009] NSWSC 217 – Brereton J
Parens patriae - Scope of power - Where 15-year-old child has extensive history of serious self-harming, violent and anti-social behaviour – Where experts strongly support preventative confinement of child in secure accommodation to facilitate treatment plan – Where Director-General seeks order authorising indefinite involuntary detention of child in secure accommodation unit – Whether such order may be made in parens patriae jurisdiction – Relevance of child’s human rights under Convention on Rights of the Child
Number 6- June 2009 (MS Word, 509kb)
CASE LAW
Children’s Court Decisions
Re Chanlina – Mitchell SCM
Considers the importance of culture and attachment in deciding whether a child should be returned to her mother
Paper – ‘Non -Accidental Injury in Care Proceedings A Digest for Practitioners’
A paper by Stephan Herridge, solicitor
Number 5 - May 2009 (MS Word, 454kb)
CASE LAW
Children’s Court Decisions
Re Lincoln and Raymond – Mitchell SCM – April 2009
Baby is found to have been shaken – expert evidence of Dr Innes as to alternative explanation for extensive and serious injuries to baby is rejected. Re Anthony considered and approved
Re Michael – Mitchell SCM – April 2009
Where the Minister is seeking parental responsibility it s settled that the Children’s Court is not entitled to demand to know the identity of the proposed carers and certainly not entitled to insist that the proposed carers provide evidence to the court or make themselves available for cross-examination. However where proposed carers put themselves forward or are put forward by the Director-General as persons to whom parental responsibility or a share of parental responsibility for a child or young person should be allocated, then, particularly when a parent raises a specific objection to that particular carer or carers, the court will normally require evidence from them and, if sought, their availability for cross-examination
R v TM and FM – Still CM – April 2009
Matters to be taken into consideration on sentencing young persons charged with indictable offences in the Children’s Court
Number 4 - April 2009 (MS Word, 454kb)
CASE LAW
Supreme Court Decision Re Frieda and Geoffrey [2009] NSWSC 133 – White J
Magistrate is found to have erred in his assessment of risk of harm to children – interim hearing - the question is not whether the parents have recognised the problem and attempted to do something about it. The primary question is what is required in order to protect the children from an unacceptable risk of harm. The question under s 9(d) is what is the least intrusive intervention in the life of the children consistent with the paramount concern of protecting them from harm and promoting their development? Given the clear evidence of risk of harm and the and the absence of evidence that action has been taken to date which could be expected to be effective to deal with that risk, there is no proper basis for the Magistrate’s conclusion that leaving the children with the parents until the case can be heard does not represent such an unacceptable risk of real harm to them as to warrant an interim order removing them from their parents. To place any significant reliance on the parents’ undertakings there would have to be a basis for the Magistrate to be satisfied that the undertakings would be honoured
Paper – ‘Uxoricide: When dad kills mum, what to do with the child?
A paper by Dr CJ Lennings
Number 3 - March 2009 (MS Word, 454kb)
CASE LAW
District Court Decisions
BS v Minister for Department of Community Services- Robison J
Meaning of “exceptional circumstances” in relation to a costs order pursuant to s88 of the Children and Young Persons (Care and Protection) Act 1998. In making the costs order against the Department the factors taken into account include that the Department’s case was untenable given the uncontradicted yet weighty expert evidence
RL and DJ v Department of Community Services – Garling J
The section 13 principles do not apply to a placement which is not an out of home care placement. “Related” or “relative” as defined in the Regulations included a step-grandparent in this case
Paper – ‘A Sensible Balance: Re Sophie and the Standard of Proof in Care Proceedings’
A paper by Michael Hinchey, April 2009
Number 2 - February 2009 (MS Word, 344kb)
CASE LAW
Children’s Court Decisions
Re: In the matter of Leonard – Senior Children’s Magistrate Mitchell
“realistic possibility of restoration,” in s83 is cast in the present rather than the future tense. The realistic possibility needs to be shown as existing at the time of the hearing even if the appropriate time for effecting the restoration has not yet arrived.
Re: DPP v Thomas Jones – Children’s Magistrate Hannam
When deciding whether to commit the matter to the District Court or dispose of the matter in a summary way in the Children’s Court the issue to be determined is whether there would be adequate scope to appropriately sentence the young person if found guilty in light of the maximum control orders that a Children’s Magistrate may impose
Number 1 - January 2009 (MS Word, 370kb)
CASE LAW
Supreme Court Decision
Re: Georgia and Luke (No 2) [2008] NSWSC 1387 – Palmer J
Parens Patriae jurisdiction and interference with Children’s Court Proceedings – Whether “extraordinary circumstances” exist – DoCS’ officers remove children for no justifiable reason – Children’s Court Clinic assessor strongly recommends immediate return of children – DoCS’ officers seek to delay return for further four months by further proceedings in Children’s Court – welfare of children at serious risk – abuse of power by DOCS officers.-HELD: Extraordinary circumstances warrant interference by Supreme Court in Children’s Court proceedings
Paper – ‘Advocacy in Care Proceedings’
A paper by Robert James McLachlan, solicitor
2008
Number 10 - December 2008 (MS Word, 411kb)
CASE LAW
Supreme Court Decision
Re KF v Parramatta Children’s Court [2008] NSWSC 1131– Hidden J
Care proceedings - application for prerogative, declaratory relief - refusal by Children's Court magistrate to allow the mother to supply material to an expert for report - practice note no 30 - whether magistrate's leave required - effect of s105 Children and Young Persons (Care and Protection ) Act 1998
District Court Decision
Re Saunders and Morgan & Anor v Department of Community Services – Johnstone DCJ
A realistic possibility of restoration - First, a possibility is something less than a probability; that is, something that it is likely to happen. Secondly, a possibility is something that may or may not happen. That said, it must be something that is not impossible. The section requires, however, that the possibility be ‘realistic’ which requires that the possibility of restoration is real or practical….‘sensible’and ‘commonsensical’. Furthermore, the determination must be undertaken in the context of the totality of the Care Act, in particular the objects set out in s 8 and other principles to be applied in its administration
Number 9 - November 2008 (MS Word, 380kb)
CASE LAW
Court of Appeal Decision
Re Sophie: [2008] NSWCA 250 – Giles JA, Handley AJA and Sackville AJA
Appeal from decision of District Court which allowed an appeal from a care and protection order made by the Children’s Court under s 71 (1) (c) of the Children and Young Persons (Care and Protection) Act 1998. Application for relief in that nature of certiorari under s 69 of the Supreme Court Act 1970 - EVIDENCE - Burden of proof – Allegation that father had sexually abused five year old daughter – whether trial judge correctly applied standard of proof – application of s 140 (2)(c) of the Evidence Act 1995 – whether matter should be remitted to the District Court
Children’s Court Decision
In the matter of Hilary & Ors - SCM Mitchell
In the circumstances of this case the appropriate order for a refusal of contact is an order made pursuant to Section 86(1)(c) of the Children and Young Persons (Care and Protection) Act 1998 rather than an order pursuant to s90A.
Paper – ‘Applications for Care Orders in the Children’s Court. A Discussion Paper on the current state of the law.’
A paper by Robert Hosking, solicitor
Number 8 - October 2008 (MS Word, 369kb)
CASE LAW
Supreme Court Decision
Re Paul [2008] NSWSC 960 – Hamilton J
FAMILY LAW AND CHILD WELFARE - Child welfare other than under Family Law Act 1975 (Cth) - Wards of Court - Supreme Court - Inherent jurisdiction to protect infants - Orders for Court’s consent to medical treatment of infants in lieu of parents’ consent - Whether order for wardship necessary. Decided – order for medical treatment made. No need for wardship order.
Children’s Court Decision
In the matter of Julia - SCM Mitchell
Application for assessment pursuant to section 54 (1) of the C & YP (C & P) Act 1998. Whether the Children’s Court can make an order for assessment in relation to parenting capacity if person does not give consent. Whether adverse inference can be drawn by Children’s Court if person does not consent to or participate in the assessment.
In the Matter of Anthony – SCM Mitchell
Ten week old child suffered severe injuries consistent with “Skaken Baby Syndrome”. Both parents denied culpability and supported each other in their individual denial of responsibility. Parents sought to introduce alternative medical explanations for injuries. Assessment concluded that only a medium risk of further injury existed if child returned to parents’ care. Briginshaw standard applied and permanency planning principles addressed. Child placed in kinship placement until 18 years with liberal contact to both parents.
Number 7 - September 2008 (MS Word, 375kb)
CASE LAW
Children’s Court Decision
In the matter of Earl & Tahneisha - SCM Mitchell
In considering the proposal for long-term care for Earl and Tahneisha the question of the children’s possible Aboriginal heritage arose. The definition outlined in s5 of the Act was considered and it was found that the children were not of Aboriginal heritage and that the placement principles in s13 of the Act did not apply.
In the Matter of Melanie - SCM Mitchell
Child born with severe medical problems. No realistic possibility of restoration to either parent. Permanency planning principle addressed (s 83 (7)) despite the lack of identified permanent placement. Children’s Court decisions in Re: Rhett and Re: Ashley cited with approval.
Paper
‘Re: Alan. Do the requirements of section 90 apply to any application seeking to vary or rescind an interim order?’
Robert MacLachlan, Solicitor
Paper
‘Preparing and Running a S 90 Case. A Perspective from the Bench’
CM Mulroney
Number 6 - July 2008 (MS Word Document)
CASE LAW
Children’s Court Decision
Re – Samantha S- SCM Mitchell
Samantha is a seventeen year old girl who suffers multiple disabilities including, in the majority psychiatric opinion, a mental illness. Samantha’s parents disagreed with this opinion and presented contrary expert evidence. The Children’s Court considered that in all other respects the parents’ care of Samantha was beyond reproach. However, considering several authorities from the House of Lords, the SCM affirmed the role of the Children’s Court is to decide what is in the child’s best interests even if that means putting aside the considered opinions of otherwise reasonable and appropriate parents.‘
Re Jillian and Jacinta – CM O’Brien
The Children’s Court found that restoration was a realistic possibility and directed the Director-General to file a new care and permanency plan.
Number 5 - June (MS Word Document)
CASE LAW
Children’s Court Decision
Re Ashley – SCM Mitchell
The court, in considering the plans for the child, will perform a dual function namely determining whether it can make a final care order approving the plan on the basis that permanency planning has been adequately and appropriately addressed and, if it has been, determining whether the plan should be approved in that it properly addresses the safety, welfare and well-being of the child or young person.
A Paper
'Re RHETT' - A Decision Misunderstood
A paper by John Crawford Acting Magistrate and former Children’s Magistrate
Number 4 - June (MS Word Document)
CASE LAW
District Court Decision
DoCS v SM and MM
Discusses the meaning of “exceptional circumstances’ in relation to an order for costs in section 88 of the Children and Young Persons (Care and Protection) Act 1998. The fact that these parents had to pay their legal costs as a result of the Department’s appeal is relevant to the consideration of exceptional circumstances.
A Paper
Children and the High and Supreme Courts 2007-2008
A paper by Andrew Haesler SC.
Number 3 - May (MS Word Document)
CASE LAW
Supreme Court Decision
Re Alan [2008] NSWSC 379 – Gzell J
Parens patriae jurisdiction – Parents dissatisfied with interim care order of Children’s Court – Order sought dismissing orders of the Children’s Court – Whether parens patriae jurisdiction should be enlivened only in exceptional circumstances – whether exceptional circumstances established – whether parents should pay costs of Department of Community Services and independent child’s representative
Children’s Court Case
Re: Lawrence - Bone M
The application of s106A of the Children and Young Persons (Care and Protection) Act 1998 – examines "the circumstances that gave rise to the previous removal" in s106A
Number 2 - March (MS Word Document)
CASE LAW
Supreme Court Decision
Director of Public Prosecutions v AB & ANOR [2008] NSWSC 115
Sexual offences – child offender – jurisdiction of the Children’s Court – prosecution withdrawn – statutory effect – consequences of withdrawal – whether a certificate of acquittal can be given
Children’s Court Cases
Re: -The BW Children – Truscott CM
The term “person” in s79(1)(a)(iii) means an individual or natural person in his/her personal capacity and does not empower the Court to make s79 Orders allocating of persons such as a Principal Officer of/or a Designated Agency.
Re: Dyson –Mitchell SCM
A baby with brain damage was placed in the long term parental responsibility of the Minister as the Court could not be satisfied that the baby’s twenty year old aunt would be able to sustain a placement in the long term.
Number 1 - January (MS Word Document)
CASE LAW
CHILDREN'S COURT CASES
Re: Rhett - SCM Mitchell
When deciding whether to make a care order the court should normally have before it a care plan which is sufficiently firm and particularised for all concerned to have a reasonably clear picture of the likely way ahead for the child for the foreseeable future.
2007
Number 7 - November (MS Word Document)
CASE LAW
Supreme Court Decisions
SB v Parramatta Children’s Court [2007] NSWSC 1297
CHILDREN'S COURT CASES
Re: Peter, Niles and Toby – SCM Mitchell
Re: Jay – SCM Mitchell
PAPER
Establishment in Care Proceedings’ A paper by Robert McLachlan, solicitor
Number 6 - September (MS Word Document)
CASE LAW
Children’s Court Decisions
Re Leon, SCM Mitchell. Consideration is given to the consequences of the Director-General’s filing an inadequate report pursuant to section
Re Maree [2007] NSWLC 35, SCM Mitchell. The question the Children’s Court must resolve in a case where there is an allegation of sexual abuse by the father is not whether the father has committed any sexual impropriety, but whether, on the balance of probabilities, the arrangements sought to by the Director-General and other parties are in the interests of the child and, if not, what, if any other arrangements are in those interests. In order to do so, the court must make an assessment, on the evidence, of the risks to the child in the various situations posed by the parties
PRACTICE DIRECTION - Practice Direction 28 ‘Case Management in the Care Jurisdiction'
Number 5 - August (MS Word Document)
Supreme Court Decisions
Director-General, Dept of Community Services v D & Ors [2007] NSWSC 762 Brereton J Adoption – jurisdiction - whether court can make order allocating parental responsibility when court refuses to make adoption order - consent to adoption – grounds for revocation of a consent dispense order – grounds for making consent dispense order – whether serious cause for concern for welfare of child – trans-racial adoption – where child of African parentage securely attached to white proposed adoptive parents for nearly four years – where birth mother’s consent subsequently declared ineffective - undesirability of child being raised apart from natural mother family culture and ethnicity – undesirability of disrupting secure attachments – significance of birth mother’s parenting capacity – relevance of birth mother’s wishes – whether adoption in best interests of child – whether adoption clearly preferable to all other alternatives - contact – benefits of contact in reducing sense of abandonment and loss of mother and culture
PAPER - ‘S106A – A Revolution for Re-Inventing the Wheel’ A paper by Robert McLachlan, solicitor
Number 4 - July (MS Word Document)
Supreme Court Decisions
Re Simon [2006] NSWSC 1410 (Campbell J)
ABORIGINALS - general - construction of “Aboriginal person” in Aboriginal Land Rights Act 1983 (NSW) - requirement of lineal descent from inhabitants of Australia immediately before European settlement - FAMILY LAW AND CHILD WELFARE - CHILD WELFARE OTHER THAN UNDER FAMILY LAW ACT 1975 AND RELATED ACTS - adoption - operation of Aboriginal child placement principles - operation of special consent provisions concerning placement of Aboriginal child for adoption - definition of “Aboriginal” in Adoption Act 2000-
Re – Elizabeth [2007] NSWSC 729 (Palmer J)
A Community Treatment Order was made in respect of a young person by the Mental Health Review Tribunal. An interim care order was made by the Children’s Court. In issue was whether the parens patriae jurisdiction of the Supreme Court should be invoked. The Children’s Court is the appropriate forum for determination of all issues in the case.
Children’s Court Decision
In the matter of Tom (Crawford CM)
Establishing whether a child is aboriginal in care proceedings. The importance of sibling relationships in decisions regarding placement.
Number 3 - June (MS Word Document)
Children’s Court Decisions
Police v Raymond (Flood CM)
Fourteen year old boy granted conditional bail to reside as directed by the Department of Community Services remained in custody as the child welfare authority did not arrange accommodation. Child declared homeless pursuant to s120 of the Child and Young Persons (Care and Protection) Act 1998. Application for variation of bail condition that the condition that the child resides as directed by the Department of Community Services be removed.
In the matter of Madeline & Ors (SCM Mitchell)
Section 105 of the Children and Young Persons (Care and Protection)Act regarding publication considered in the context of coronial proceedings. Section 115(3)(b) interpreted to mean that an otherwise unlawful publication will be permitted in any one of the four circumstances recited in section 115(3)(b)(i) to (iv). Leave given for ‘publication’ solely for the legitimate purposes of the preparation of and conduct of an inquest to be held by a Deputy State Coroner.
Number 2 - March (MS Word Document)
Court of Appeal Decision Re – Jayden [2007] NSWCA 35 (Beazley, Hodgson and IPP JA CHILDREN – 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 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) considered - LEGAL PRACTITIONERS – parties to proceedings – whether legal practitioners appointed by the Children’s Court of New South Wales pursuant to s 99 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) to represent children the subject of proceedings should be named as parties to proceedings in the Supreme Court
Children’s Court Decision Re – Jackson (Mitchell SCM)
The application of s88 of the Children and Young Persons (Care and Protection) Act 1998. Costs awarded to the mother as the position adopted by the Director General was entirely mistaken and needlessly maintained to an exceptional degree.
PAPER Psychological Disability and Parenting – A paper by Dr Chris Lennings
Number 1 - February (MS Word Document)
Supreme Court Decisions Application of A – re D [2006] NSWSC 1056 (Palmer J) Adoption – whether children should be adopted or left in foster care – whether any general rule that adoption is preferable to foster care – relationship between Adoption Act and Children and Young Persons (Care and Protection) Act – whether adoption clearly preferable to long term fostering in the present case – whether consent of birth mother to adoption should be dispense.
Re: Don [2006] NSWSC 1125 (Sully J) Sections 93 and 94 of the Children and Young Persons (Care and Protection) Act 1998 require the maximum flexibility and speed appropriate to the particular case or issue. The principles to be applied in applications to set aside a subpoena set out. Section 109 considered.
PAPER‘Joining of Parties in Care and Protection Proceedings’ A paper by Children’s Magistrate Crawford
2006
Number 10 - November (MS Word Document)
Supreme Court Decisions - Re – Brett v Children’s Court of NSW [2006] NSWSC 984 (Sully J) - An application for leave to vary/rescind a care order is in one sense a procedural step taken in aid of a projected substantive application – this does not deprive the leave application itself of any substantive character as a process – in so far as a correct understanding of the ratio decidendi of re Edward suggests otherwise then such ratio is erroneous. A decision regarding leave requires a discerning assessment of all of the criteria that are laid down by s90(2) and (2a). such an assessment could not be made except on the basis of relevant findings of fact, clearly articulated.
Re ‘Emily’ v Children’s Court of NSW [2006] NSWSC 1009 (Sully J)- The related questions that the Court must answer when making a finding in relation to whether a child is in need of care and protection and when asked to make an order for interim parental responsibility are set out. Before making a Wardship order the Supreme Court would require a quite exceptional case – clear and cogent evidence of some egregious and otherwise irremediable impropriety or irregularity in the Children’s Court.
Number 9 - October (MS Word Document)
Court of Criminal Appeal Decision - Director of Public Prosecutions (NSW) v PM [2006] NSWCCA - Whether the DPP can bring proceedings in the District Court against a childby an ex officio indictment for an offence which is not a “serious children’s indictable offence” Section 31 Children (Criminal Proceedings) Act 1987 and s8 Criminal Procedure Act 1986(NSW) considered.
Supreme Court Decision In Re Yasmine& Ors [2006] NSWSC 983 (Michael Grove J) An order appointing a Guardian ad Litem is interlocutory in nature. A guardian ad litem can be discharged from appointment if, subsequent to appointment material is placed before the court that the person for whom the guardian ad litem has been appointed has become capable of giving instructions.
CASE SUMMARY ‘Arthur’ – Non-publication of name and identifying information – An exception by order of the Children’s Court – Crawford CM
Number 8 - September (MS Word Document)
Supreme Court Decision Re K&C and the Adoption of Children Act [2006] NSWSC 854 (Palmer J, 14 August 2006) Whether an independent Court expert should be appointed – the only expert opinion was that filed by an expert instructed by Barnardos and the Department of Community Services
Application of A – re D [2006] NSWSC 1056 (Palmer J, 25 August 2006) Whether children should be adopted or remain fostered – whether general rule that adoption is preferable to foster care – relationship between the Adoption Act 2006 and the Children and Young Persons (Care and Protection)
Act 1998
Children’s Court Decision In the matter of Amy (Murphy CM, 1 September 2006) S90 leave to vary contact order granted as agencies refused to accept referralsfor long term foster placement for child.
PAPER ‘Pro-active Representation of Children in Care Proceedings’ A paper by Robert
James McLachlan
Number 7 July (MS Word Document)
Supreme Court Decision - D v Director General, Department of Community Services (Barrett J, 31 May 2006) Privilege-Protected Confidences-where birth mother has made confidential Statements to doctor whose report she relies on-whether access should be refused-where issue is welfare of child-client legal professional privilege-where
some communication for purpose not of litigation but for securing appropriate care. Interrogatories where parties other than birth mother contend that child is thriving with proposed adoptive parents and birth mother unaware of adoptive
parents’ and child’s circumstances.
Children’s Court Decisions - In the matters of Darren, James and Tenille (Mitchell SCM, 18 May 2006) S90 leave application by parents after child self-places into their care. Parties cannot rely on an illegal or improper act – or any circumstances flowing from such acts as a significant change in relevant circumstances to found a s90 leave application.
In the matter of Ailsa (Mitchell SCM, 18 July 2006) In a care application brought pursuant to leave granted under s90 of an order made by consent under s38, the Director-General must specify and prove a ground (or grounds) contained in s71.
PRACTICE DIRECTIONS - Practice Direction 24 ‘Case Management in the Care Jurisdiction’ and Practice Direction 25 ‘Expert Evidence in Care Proceedings'
Number 6 June (MS Word Document)
1. Case Law - Court of Criminal Appeal Decision - R v BP & SW [2006] NSWCCA 172 Appeal against conviction - Appellants aged 11 and 12 at time of alleged offences - Doli incapax - Need for prosecution to prove beyond reasonable doubt that child between 10 and 14 knew that what he or she was doing was seriously wrong, not merely naughty or mischievous - Whether directions adequate - Whether jury's verdict reasonable.
- Supreme Court Decision - Re Barbara & Ors [2006] NSWSC 303 (Barrett J) Application by Director-General for final relief by way of order assigning to him care of three siblings, one 12 days old - proceedings pending in Children's Court - interim position secured by undertaking from grandmother.
- Supreme Court Decision - Re Barbara & Ors [2006] NSWSC 413 (Gzell J) Parens patriae jurisdiction - Application by Director-General of the Department of Community Services that the Minister of Community Services be allocated parental responsibility for three young children pending final determination of proceedings before the Children's Court - Whether grandmother had breached undertakings given to the court to act as a full time live in carer of the children.
- Supreme Court Decision - Re Barbara & Ors [2006] NSWSC 536 (White J) Director-General sought interim orders in Children’s Court allocating parental responsibility for three children to Minister – Children’s Court made interim orders substantially in accordance with orders sought by Director-General – Application by children’s parents for stay of orders of Children’s Court – Whether Supreme Court should exercise its parens patriae jurisdiction to grant stay of orders of Children’s Court – Parens patriae jurisdiction used in exceptional circumstances – Whether circumstances exceptional – Application dismissed.
- Children's Court Decision - In the matter of Louis and Edna (Mitchell SCM) Section 90 application by mother for rescission/variation of care orders - Interim application by mother for Children’s Magistrate who made final orders to disqualify himself from further dealings with the matter – Final orders previously made by Children’s Magistrate – Contention that determinations as to mother’s credit would lead to apprehension of bias – Test of Livesy’s Case applied – application for disqualification upheld.
Number 5 May (MS Document)
1. Case Law - Supreme Court Decision - Re Alistair (Kirby J, 12 May 2006) Finding child in need of care and protection - challenge to Magistrate's decision to premit 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.
- Children's Court Decision - In the matters of Julian and Allan (Crawford CM, 28 April 2006) s83(7)(b) does not create a presumption instead it creates a threshold to be met before restoration to a natural parent and restoration plan is approved by the court - "permanency planning" is a requirement within the application of the broader principle of the "safety , welfare amd well-being" being the paramount consideration, rather than being a principle (or requirement) that operates independently of that principle - unacceptable delay - child with physical and intellectual disability - proposal to move child from stable placement with grandparents to foster care - s9(d) 'least intrusive intervention in life of child and family' considered- separation of siblings - supervised contact - duration limited - role of support person - costs.
- Children's Court Decision - In the matter of Cassandra (Mitchell SCM, 15 May 2006) Application for leave for recission of order udner s90 - whether s90 is applicable to an order made under s38 - an order made pursuant to s38 is a care order - s90 available to vary or rescind s38 order.
Number 4 May (MS Document)
1. Case Law - Court of Criminal Appeal Decision - Moiakeola Tapueleul v Regina [2006] NSWCCA (Grove, Simpson, Howie JJ) Leave to appeal against severity of sentence - previous matters before Children's Court taken into account in adult proceedings - rejected - error in categorising offence - rejected - error in determining non-parole period - found - sentence manifeslty excessive - found - application for leave granted.
- Children's Court Decision - In the matter of Ingrid (Truscott CM, 15 March 2006) There are occasions when the Court can and should receive evidence from the Respondents to a leave application to file evidence - there is a distinction between a party having an entitlement to file evidence and the Court allowing the party to file evidence for the Court's assistance.
- Children's Court Decision - In the matters of Samantha, Nicholas, Chris, Campbell, Geoffrey, Cynthia and Byron (Mitchell SCM, 21 April 2006) Director -General's application for parental responsibility - events arising out of proceedings under Family Law Act 1975 - Orders inqdequate to ensure adequate protection of the children.
2. Legislation - Child Protection (international Measures) Bill 2006 - Second Reading speech by Ms Alison Megarrity.
Number 3 April (MS Document)
1. Case Law - Children's Court Decisions - Department of Community Services and Raymond, Cristian, Tamsin, Jennifer and Karen (Swain CM, 13 February 2006) Director-General's Application regarding breach of undertakings under s73 - Unertakings not signed - result in undertaking never being made.
- Children's Court Decisions - In the Matter of the Department of Community Services and Cristian, Tamsin, Jennifer and Karen (No. 2) (Swain CM, 27 February 2006) Director-General's Application regarding breach of undertakings under s73 and Application for leave to vary a Care Order under s90 - definition of "parent" under s73(1)(a) - "parent" to be defined in accordance with s3 of the Act - "parent" in s73 does not include a natural parent without parental responsibility.
- Children's Court Decisions - Police v MT (Farnan CM, YDAC, 9 March 2006) Applications of 2 young offenders to YDAC program - Discretion under Cl 8.4(d) of Practice Direction 23 to exclude those assessed as eligible from the program - Impact of offence history and subsequent offences - applications rejected.
2. Papers - Supervision - A Proposal for Reform- a paper by Children;s Magistrate Crawford
- Justice Health - Cobham Court Consultation & Liaison Project
Number 2 March (MS Document)
1. Case Law - Children's Court Decisions - In the matter of Jasper (Mitchell SCM, 30 January 2006) Mother's application for leave pursuant to s90 - issue to be determined in leave proceedings - distinction between leave proceedings and care proceedings - need to demonstrate "significant change in any relevant circumstances" (s90(2)) - matters to be considered by the Court before granting leave (s90(2A)).
2. UK Case Law - Meadow v General Medical council [2006] EWHC 146 - Appeal - finding of serious professional misconduct - expert medical witness - misuse of statistics in evidence before criminal courts - immunity from suit of expert witness - duty of expert witness - immunity from suit not extended to disciplinary proceedings - discliplinary action only permissible where expert acts contrary to professional obligations to court.
3. UK Publications - Review of infant Death Cases - Addendum to Report Shaken Baby Syndrome(14 February 2006)
Number 1 February (MS Document)
1. Proposals for Legislative Change
2. Case Law - Supreme Court Decisions - R v LMW [1999] NSWSC 1342 and R v LMW [1999] NSWSC 1343 (Studdert J, November 1999)
3. Papers - "Doli Incapax - The Criminal Responsibility of Children" - A paper by Matthew Johnston
1. Case Law - Supreme Court Decisions -Re Katherine (Studdert J, 26 November 2004)
2. Papers - “Is it Both Appropriate and Viable To Have a Beneficial Representative Role for Children in Criminal Proceedings and if so what Model Should be Adopted?” - A paper by Robert McLachlan, Solicitor
3. Legislation - Review of the Children and Young Persons (Care and Protection) Act 1998
1. Case Law - Supreme Court Decision
Re Frances and Benny [2005] NSWSC 1207 (Young CJ) - Application to quash orders of Children's Court- Director-General applied to Children's Court for child care orders- Court not satisfied with sufficiency of evidence to make order- Dismissed application- Whether superior court should exercise its supervisory or inherent parens patriae jurisdiction to deal with care orders- Parens patriae jurisdiction used in exceptional circumstances where other curial processes inadequate-Whether Children's Court correct to dismiss application because evidence insufficient- Child's welfare paramount- Court's duty is to adjourn rather than dismiss proceedings.
2. Papers
(a) ”Considerations in Making a Contact Order” - A paper by John Crawford, Children’s Magistrate
(b) “Contact Orders (Including Supervisions Thereof)” - A paper by John Crawford, Children’s Magistrate
3. Reports
(a) Contact Between Children in Out-of-home Care and their Birth Families (DoCS)
(b) Report of Reviewable Deaths in 2004 (NSW Ombudsman)
1. Legislation - Children and Young Persons (Care and Protection) Amendment Bill 2005
2. Case Law
(a) Supreme Court Decision - Re Frances and Benny [2005] NSWSC 1154 (Barrett J)
(b) Children’s Court Decision - In the Matter of Jillian (Mitchell SCM, 22 September 2005))
(c) Children’s Court Decision - In the Matter of Sinead (Bone M, 11 November 2005)
3. Papers - "Practical Points in Representing the Department of Community Services” - A paper by Children’s Magistrate Ellis
1. Case Law - Children’s Court Decisions
In the Matter of Spencer - Crawford CM - In making an order allocating parental responsibility to the Minister, the Court undertook a systematic consideration of the legislative tests relevant to permanency planning. A particularly difficult issue arising was the tension between the progress of the ongoing rehabilitation of the parent, its pace and the parent’s capacity for change and the need for permanency for the child.
In the Matter of Elizabeth - Mitchell SCM - Finding that the child was a child in need of care (s71) – anorexic child – failure of parents to agree on medical treatment of child – whether inability to agree an inhibiting factor to effective treatment – the exercise of parental responsibility where the child is placed on a schedule under the Mental Health Act 1990
2. Papers - “Life after George” - A paper by Children’s Magistrate Ellis
1. Case Law - Supreme Court Decision - JIW v The Director of Public Prosecutions (NSW) - [2005] NSWSC 760 (Kirby J) - Criminal Practice & Procedure, child almost 18 years charged dangerous driving causing death, s52A(1)(c), whether should be dealt with summarily or according to law, construction s31(3) Children (Criminal Proceedings) Act 1987, duty to give reasons, s31(4)
2. Court of Appeal Decisions
(a) Regina v AN [2005] NSWCCA 239 - Mental Health - Imposition of limiting term on juvenile offender with severe mental impairment - approach to sentencing a person who was a young child at the time of the offence - whether general deterrence warranted - long delay since offence - term imposed is manifestly excessive.
(b) Regina v MSS [2005] NSWCCA 227 - Sentencing of a juvenile of sexual assault offence after conviction
1. Case Law - Children’s Court Decision - In the Matter of Pierce (Mitchell ASCM, 21 July 2005)
2. Papers - Concurrent Evidence
3. Cases from other jurisdictions - Recent UK cases on ‘shaken baby syndrome’
1. Contact and Its Place in Care Proceedings - A speech by Acting Senior Children’s Magistrate Mitchell
2. Expert Evidence in Care Proceedings - A paper by Robert James McLachlan, solicitor
3. Is there property in expert medical witnesses? - A paper by Robert James McLachlan, solicitor
1. Children’s Court Decision – The Police v Ryan – Mulroney CM – The Court found that a young person who was charged with stabbing a fellow student suffered from Asperger’s Syndrome and that the young person had been bullied by his victim. Despite the seriousness of the offence, the Court held that young person suffered from a mental condition that made him particularly vulnerable and made it particularly difficult for him to cope in social situations and the Court dealt with him pursuant to s32 of the Mental Health (Criminal Procedure) Act 1990.
2. Supreme Court Decision – Royal Alexandra Hospital for Children v. Joseph and Ors – Gzell J - Parens patriae jurisdiction - Order sought by hospital to administer blood transfusion to a Jehovah's Witness child. The child is over 16 years and opposed the making of the order as did his parents.
3. ‘Sentencing in the Children’s Court’ A paper by Magistrate Beverley Schurr
Number 2 April (MS Document)
1. Children’s Court Decision – The Police v Ryan – Mulroney CM – The Court found that a young person who was charged with stabbing a fellow student suffered from Asperger’s Syndrome and that the young person had been bullied by his victim. Despite the seriousness of the offence, the Court held that young person suffered from a mental condition that made him particularly vulnerable and made it particularly difficult for him to cope in social situations and the Court dealt with him pursuant to s32 of the Mental Health (Criminal Procedure) Act 1990.
2. Supreme Court Decision – Royal Alexandra Hospital for Children v. Joseph and Ors – Gzell J - Parens patriae jurisdiction - Order sought by hospital to administer blood transfusion to a Jehovah's Witness child. The child is over 16 years and opposed the making of the order as did his parents.
3. ‘Sentencing in the Children’s Court’ A paper by Magistrate Beverley Schurr
Number 1 February (MS Document)
1. Publication – ‘Sudden unexpected death in infancy: A multi-agency protocol for care and investigation’ has been published in the United Kingdom.
2. Supreme Court Decisions
(a) Re Liam: - [2005] NSWSC 75 – McDougall J - Section 86 of the Children and Young Persons (Care and Protection) Act 1998 requires the Children’s Court to consider whether contact should be ordered, and if so contact of what nature and also whether any such contact should be supervised. This decision cannot be left to the discretion of the Director-General..
(b) Minister for Community Services v Children’s Court of NSW & 3 Ors (RE Nadya)[2005] NSWSC 154 - Hoeben J - A direction to a young person “That you reside as directed by the Department of Community Services …” was within power as there was no obligation being imposed on the Department to give a direction. The source of that power is to be found in s33 of the Children (Criminal Proceedings) Act 1987 and in Regulation 7 made under that Act.
3. Time Standards and Standard Directions for Care Applications applicable from 31 January 2004
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Number 9 December (MS Document)
1. Children’s Court Decision - In the matter of the Department of Community Services and the “Young” Children – Crawford CM – s90 application and sole parental responsibility to the Minister for residence v. joint parental responsibility with a parent.
2. Supreme Court Decision – Re H and the Adoption Act [2004] NSWSC 1242 – Young CJ -Adoption- whether name may be changed- Adoption Act 2000, s 101(5). "Given Name". The purpose and contents of affidavits.
3. ‘Working with Affidavit Evidence in Care Proceedings in the Children’s Court’ A paper by Children’s Magistrate John Crawford.
Number 8 October (MS Document)
1. Supreme Court Decisions:
(a) Re Katherine [2004] NSWSC 899 – Studdert J – procedural fairness and apprehension of bias in care proceedings.
(b) Minister for Community Services &1 Or v. Children’s Court of New South Wales & 3 Ors – [2004] NSWSC 1018 (Re Nadya) – Bell J - the express terms of s 70 do not admit of an interim order allocating parental responsibility to the Minister on an application brought under Ch 7. Such an application is not a care application and an order approving or giving effect (or partial effect) to an alternative parenting plan is not a care order as that expression is defined for the purposes of Ch 5 of the Act. The power conferred by s 15 of the Children’s Court Act 1987 does not authorise an interim order allocating parental responsibility to the Minister on an application brought under Ch 7.
2. “Monitoring and Review of Court Orders – s82 of the Children and Young
Persons (Care and Protection) Act 1998’ A paper by Children’s Magistrate Crawford
Number 7 September (MS Word Document)
1. Children’s Court Decision - In the matter of the “D” Children – Truscott CM – a s90 application can be brought to vary contact only, despite no s 86 contact order being made on the initial application.
2. Court of Appeal Decision – Re Andrew – [2004] NSWCA 210 - joinder of father to Supreme Court proceedings - where real risk to safety of mother and child - Children and Young Persons (Care and Protection) Act 1988 - natural justice - proper contradictor - where question in Supreme Court was one of law - whether service would pre-empt decision of Children's Court
3. Supreme Court Decision – Re Andrew [2004] NSWSC 842 – Wood CJ - Care Application - s 64 of Children and Young Persons (Care and Protection) Act 1998 - dispensing with service of Care Application on father - paramountcy of safety, welfare and well being of child - rights or interests of parents - mandatory and directory requirements of statute - whether Children's Court had power or discretion to dispense with service.
Number 6 September (MS Word Document)
1. Children’s Court Decisions:
(a)In the matter of Jason – Mitchell CM – Allocating parental responsibility to a parent when that parent is under the age of 18 years
(b) In the matter of Calvin (No 2) – Mitchell CM - the scope of section 82 and the limits of the Court’s power to supervise the care and welfare of a child or young person after a case has been determined and “final” care orders have been made - whether and for how long the appointment of a child’s guardian ad litem survives the making of those “final” care orders.
2. ‘Interim Orders – Parental Responsibility to the Minister – The Level and Extent of the Onus’ - This is a revised paper by Robert McLachlan, Solicitor, delivered to the Annual St James Practitioner’s Conference on the 19 June 2004
1. Practice Direction No. 23 – Youth Drug and Alcohol Court
2. Supreme Court Decision – Re Josie – Levine J – The Children’s Court having, even on an interim basis, allocated sole parental responsibility to the Minister, cannot derogate in any way from the Minister’s power to exercise it.
3. Supreme Court Decision – Director-General of the Department of Community Services v Priestley – Young CJ – The Court declined to hear a matter urgently and in so declining said that if the Supreme Court is to re-examine a matter involving child protection, some very strong evidence that the decision of the Children’s Court did not pay enough attention to a matter that is so fundamental that children really and truly are at risk rather than there being a suspicion they might be.
4. ‘Communicating with children over 10: If wishes were horses, beggars would ride’ A paper by Dr C.J. Lennings, University of Sydney - Recent changes in the law in New South Wales have changed the relationship between a solicitor and a child of 10 years or more. The paper reviews issues associated with the confidence a solicitor can have in communicating with a pre-adolescent and early adolescent child and the psychological factors such as temporal perspective and meta-cognitive processes that have to be taken into consideration. The paper reviews a recent case to highlight some of these issues.
1. Practice Direction No. 22 – Case management in the Care Jurisdiction
2. Children’s Court Decision – In the matter of Nellie – Marsden CM – Child who suffered serious injuries from a shaking incident caused by one or both parents who denied causing the injuries returned to the care of the parents after an assessment of current risk factors.
3. Court of Appeal Decision – Re Andrew – Joinder of the father in Supreme Court proceedings where there is a real risk to the mother and child – natural justice, proper contradict where question in the Supreme Court is one of law- whether service would pre-empt the decision of the Children’s Court
4. ‘The Children’s Court’s Power to Limit the Presentation of Evidence or the Cross Examination of Deponents of Documents’ - A revised paper by Robert McLachlan Solicitor delivered to the Annual St James Practitioner’s Conference on the 19 June 2004.
1. Children’s Court Decisions
a) In the matter of ‘Joe, Elaine and Lyle’ – Schurr CM –The Permanency Plan filed proposed siblings be placed in long term out-of-home care together. At the final hearing the Director-General proposed placing the children separately. The court found there was no Permanency Plan for the children and adjourned the final hearing for the Plan to be prepared.
b) In the matter of ‘Adam and Michael’ – Truscott CM – Standard of proof, the meaning of “likely”,-s72 of the Children and Young Persons (Care and Protection) Act 1998- It is only once the Court has found that the child is in need of care pursuant to s71 that it can then consider the question of what orders, if any to make, and it is then that the real possibility of harm or “unacceptable risk of harm” becomes the applicable test.
2. ‘Contact Orders’ – A paper by Children’s Magistrate Ellis
Table of Contents:
1. Children’s Court Decisions
(a) Police v LAH – Dive SCM - Whether s 138 can or should be applied to situations where the alleged crime and the evidence of that alleged crime flows from the consequences of an illegality or impropriety
(b) In the matter of Helen – Mitchell CM – Identifies circumstances that should be taken into account when making a contact order when a child is to be placed in out of home care with no prospect of restoration.
(c) In the matter of Trent – Mulroney CM – The Court has no power to dispense with the giving of notice of a care application to a parent nor to service of documents on a parent.
2. Supreme Court Decision – R v Wilson [2003] NSWSC 1257 – Sentencing of a foster carer for manslaughter of her foster child.
3. Audio Visual Links in the Children’s Court
Table of Contents:
1. Proclamation
2. Supreme Court Decision – Director-General, Department of Community Services v. Dessertaine [2003] NSWSC 972– Greg James J – whether it is necessary for the magistrate to determine all grounds asserted in the care application when finding that child is in need of care and protection and whether additional grounds can be considered when making a final order.
3. Court of Appeal Decision – ‘George’ v Children’s Court of New South Wales & 4 Ors [2003] NSWCA 389 – whether the Children’s Court has power to order the Director-General of the Department of Community Services to pay the fares and reasonable costs of parents accommodation to exercise contact with their child who is under the parental responsibility of the Minister.
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Table of Contents:
1. Children’s Court Decisions
(a) In the matter of Timothy - Mitchell CM - Commencement of Supervision Order deferred to the expiration of an order allocating parental responsibility to the Minister
(b) In the matter of Jordan, Joshua and Michelle- Zdenkowski CM - The Court does not require the availability of a permanent out-of-home placement in order to make a long-term order
(c) In the matter of May and Ben - Crawford CM -Unacceptable risk, binding effect of Family Court findings, conflict of expert opinion evidence-whether court in finding children to be in need of care if bound by ground in the application-relevant date when continuing situation-implications of s.72 -meaning of "sexually abused" in ground (c)-meaning of "domestic environment in which he or she is living" in ground (e).
2. Summary of the Young Offenders Amendment Act 2002
3. The Community Services Legislation Amendment Act 2002
4. ‘The Children’s Court Clinic’, A paper by Greg Moore, Barrister
Table of Contents:
1. Children’s Court Decision - In the matter of Bianca - Mitchell CM - The Department to pay fares and accommodation for parents on contact visits pursuant to section 15 of the Children’s Court Act 1987
2. Court of Appeal Decision - Re Tyrone - Issue as to the true construction of s74 of the Children and Young Persons (Care and Protection) Act 1998 not decided as the issue in these proceedings had become academic
3. Reports Published
4. ‘The Unrepresented Party: What duty does the Court owe to assist in the presentation of their case?’ A paper by Robert McLachlan, solicitor
Table of Contents:
1. Children’s Court Decision - In the matter of ‘Pamela’ - Schurr CM - Department of Community Services - Party status in care proceedings - s 98(3) of the Children and Young Persons (Care and Protection) Act 1998 - The Department of Community Services application to revoke the party status of Anglicare.
2. Certificates under s128 of the Evidence Act 1995
3. Procedures for Revocation of Community Service Orders in the Children’s Court
4. ‘Assessment Orders and the Children’s Court Clinic - Conduct and Controversy’ A paper by Deborah de Fina, Senior Solicitor, Legal Aid Commission
Table of Contents:
1. Children’s Court Decisions
(a) In the matter of Jordan, Joshua and Michelle (No 2) – Zdenkowski CM – s 90 applications are not proceedings inter partes but can be opposed – contact arrangements constitute relevant circumstances within s 90(2) however in this case there was in fact no significant change in relevant circumstance
(b) In the matter of Tanya – Mulroney CM – issue estoppel does not, strictly speaking, apply to this application for a care order
2. Supreme Court Decision - Re: David and Ewen [2003] NSWSC 279 - Campbell J - The exercise of the Supreme Courts parens patriae jurisdiction- s 247 of the Children and Young Persons Care and Protection Act 1998 - the attitude of the Supreme Court in an appeal from a discretionary judgment
3. Case Management – An excerpt from the English case of Re G & others (Children) (Care Proceedings: wasted costs) [1999] 4 All ER 371
4. ‘Establishing permanency for children - the issues of contact between children in permanent foster care and their birth families’ - A paper from Barnardos staff
Table of Contents:
1. Children’s Court Decisions
(a) In the matter of Pamela (No 2) - Schurr CM - The use of a pseudonym to replace the name of a person referred to in the course of the evidence in care proceedings, that person not being a child or young person.
(b) In the matter of Sasha - Zdenkowski CM - Formal non-compliance with the filing times of an application pursuant to s45 of the Children and Young Persons (Care and Protection) Act 1998 does not necessarily render the application invalid.
2. Supreme Court Decision - (Crime) - HA v The Director of Public Prosecutions and SB v The Director of Public Prosecutions - A finding of guilt in and the imposition of a penalty under s 33(1) of the Children (Criminal Proceedings) Act 1987 amounts to a conviction, and the Children’s Court in those circumstances has power to impose a disqualification under the traffic legislation.
3. ‘Representation of Children in Care Proceedings - A Brief Overview’ - A paper by Robert McLachlan, solicitor
Table of Contents:
1. Court of Criminal Appeal Decision – R v Hoang [2003] NSWCCA 237 – Section 25 of the Children (Criminal Proceedings) Act 1987 is a mandatory provision and requires a
Juvenile Justice Report be prepared.
2. Children’s Court Decisions
(a) In the matter of Ben and John – Mitchell CM – the operation of section 90 of the Children and Young Persons (Care and Protection) Act 1998
(b) In the matter of Calvin – Mitchell CM – the meaning of ‘review’ in section 82(2) of the Children and Young Persons (Care and Protection) Act 1998
Table of Contents:
Children’s Court Decisions
(a) Police v Jennifer and Julie – Dive SCM – Neither s43 nor s234 of the Children and Young Persons (Care and Protection) Act 1998 could be relied on by the Police in this case to make their actions lawful.
(b) In the matter of Pamela(No 3) – Schurr CM – The Court rejected tender of part of a document containing an interview of a five year old child purporting to set out the child’s wishes as it could not be satisfied that the child had an understanding of the nature of the questions being asked.
(c) In the matter of Pamela (No 4) – Schurr CM – Where evidence of a child’s wishes has already been led by other parties there is no enforceable duty of the separate representative to lead additional evidence of the child’s wishes if the separate representative believes that it is not in the interests of the child to do so.
(d) In the matter of Pamela (No 5) - Schurr CM – The court rejected the application for a further Children’s Court Clinic report sought so that there would be a clear expression of the child’s view of the rescission application. The court held that there was already evidence of the child’s wishes and that the application would force the child to become directly involved in the conflict in the court proceedings.
Table of Contents:
1. Children’s Court Decision -In the matter of Simon and Patricia – Mulroney CM –The provisions of s82(2) permit a complete change in both the nature and the duration of an existing order
2. Supreme Court Decision – The Minister for Community Services and Director-General Department of Community Services v The Children’s Court of New South Wales and others – Michael Grove J – In this the matter of ‘George’ it was held that s 15 of the Children’s Court Act 1987 does not provide a source of power for making an order that the Director-General pay the costs of travel and accommodation of theparents.
3. The Threshold Test – Limited concessions by parents that a child is in need of care – Implications of a finding being made on some only of the grounds alleged in the care application’ - A paper by John Crawford, Children’s Magistrate
Table of Contents:
1. Children’s Court Decisions
(a) In the matter of Jackson–Mitchell CM – The court has power to deal to finality with different aspects of parenting at different times – the meaning of the term “the subject of care proceedings’ in s 86
(b) In the matter of Matthias – Mitchell CM – whether documents that may cause a child over ten distress should be disclosed to the child or his legal representative; whether the court should appoint a guardian ad litem for the child
2. ‘Cross-examination in Care Proceedings – Does the Rule in Browne v. Dunne apply in Care Proceedings?’ – A paper by Children’s Magistrate Schurr
Table of Contents:
1. Court of Criminal Appeal Decision – Regina v JTB [2003] NSWCCA 295– Whether a witness aged 8 years could give ‘evidence’ without being sworn and enquiries as to her understanding.
2. ‘Formulating applications for an assessment order’ Comment from the Children’s Court Clinic.
3. ‘Employment Checks – The Implications of Apprehended Violence Orders against Children’ – A paper by Children’s Magistrate John Crawford
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Table of Contents:
1. Guardian ad Litem Panel
2. Children’s Court Decisions - In the matter of J, K and C, Crawford CM .
3.Supreme Court Decisions - Re Nerida, Kirby J
- Re Grace and Rita, Hulme J
Table of Contents:
1. Guardian ad Litem Panel
2. Children’s Court Amendment (Service) Rule 2001
3. The Children (Criminal Proceedings) Amendment (Adult Detainees) Act 2001
4. Assessment Reports from the Children’s Court Clinic
5. Children’s Court Decisions -
(a) In the matter of JS, Mitchell CM - s99(4) application
(b) In the matter of MB and BB, Crawford CM -supervision order and an order for the provision of support services pursuant to s74(c ) In the matter of FG, Crawford CM - admissibility of expert evidence
6. ‘Orders Prohibiting Acts by Parents’ A paper by John Crawford CM
Table of Contents:
1. Applications for appointment of Guardians ad Litem
2. Children’s Court Decisions -
(a) In the matter of Rajiv, Mitchell CM, procedure to be followed for Notices of Breach of Supervision Order and/or Undertakings
(b) In the matter of Daniel, Mitchell CM, order for support services, s74(4)
(c) In the matter of Alice, Crawford CM, joint conference of expert witnesses
3. Supreme Court Decision - Re Oscar [2002] NSWSC 453, Hamilton J
4. ‘Emergency Care and Protection Applications’ - A view from Bao-Er
5 ‘Guardian ad Litem’ A paper by Robert McLachlan, solicitor
Table of Contents:
1. Children’s Court Clinic Website
2. Crimes Amendment (Child Protection - Physical Mistreatment) Act 2001
3. Children’s Court Decision - Re M children - Section 90 of the Children and Young Persons (Care and Protection) Act 1998, Rescission and variations of orders and the issue of leave -Mitchell CM
4. Supreme Court Decision - Re James [2001] NSWSC 1178 Representation of a child in Supreme Court Proceeding - Hamilton J
5. Court of Appeal Decision - S v Department of Community Services - Leave applications, s 91 appeals to the District Court
6. Practice Note 1 of 2002 - Country Assistance Protocol
7. Practice Note 2 of 2002 - Adolescent Cannabis Check-Up
8. Practice Note 3 of 2002 - Children’s Court Clinicians attending court
Table of Contents:
1. The Bail Amendment (Repeat Offenders) Act 2002
2. ‘Assessment Orders - The Role and Accountability of Clinicians from the Children’s Court Clinic’ A paper by Robert McLachlan, solicitor
3. Practice Direction No. 20 - Hearing Dates and Applications for Adjournment - Criminal and Care
4. Practice Direction No. 21 - Service of Briefs of Evidence in the Criminal Jurisdiction
5. Practice Note 4 of 2002 - Preliminary Conferences - Listing and Cancellation Procedures for Country Courts
Table of Contents:
1. Children’s Court Decision - Re Tina - Mitchell CM, - Section 90, power to grant leave to seek rescission/variation and in the grant of leave, to limited areas in relation to which rescission/variation may be sought.
2. Supreme Court Decision - Re Tyrone - Sully J - Section 74, Order for provision of support services
3. ‘Domestic Violence: Its Relevance and Proof in Care Proceedings’ A paper by Robert McLachlan, solicitor
Table of Contents:
1. Children’s Court Clinic Procedure
2. Children’s Court Decision - Re Nerida - Dive SCM, - Section 90(2A), the exercise of the courts discretion to grant leave to bring a rescission/variation application
3. Supreme Court Decision - Re Peters & Ors - O’Keefe J, - cross-examination of Authorised Clinician, giving reasons to indicate that the purposes of the Act and the factors particular to the exercise of a discretion have been considered and weighed
4. Guardian ad Litems - addendum to Robert McLachlan’s paper
Table of Contents:
1. Children’s Court Decisions
(a) Re MB, PB and MMB - Zdenkowski CM, - the operation of Section 78A(4)
(b) In the matter of Ryan and Zeena - Mitchell CM - expert’s reports from family law proceedings not to be sent to the Children’s Court Clinic in these circumstances
(c) In the matter of Jack - Hunt CM - significant change in relevant circumstance, the exercise of discretion in s90, the applicant should not benefit from grant of leave on basis of own non-compliance, the use of alternative remedy under s 73.
2. ‘The Issue of Warrants’ A paper by John Crawford, Children’s Magistrate
Table of Contents:
1. Children’s Court Decision - In the matter of Toby - Crawford CM - The Director-General’s assessment of whether restoration is a realistic possibility pursuant to s 83.
2. ‘Assessment of Parenting Capacity pursuant to s.54(1) of the Children and Young Persons (Care and Protection) Act 1998’ A view from the Children’s Court Clinic
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1. Children’s Court Cases
2. Special Medical Treatment
3. Legislative Change
4. Supreme Court Judgement
1. Practice Manual Update
2. Children’s Court Case
3. A. ‘Parental Responsibility…’ Paper - Rod Best, Director, Legal Services DoCS
B. Reply to ‘Parental Responsibility…’ Paper Deborah de Fina, Senior Solicitor, Child Protection, Legal Aid
C. Comments by Rod Best in response to Deborah de Fina’s Reply.
4. Order Form - Practice Manual Update
1. The Children’s Court at St James
2. The Children’s Court Clinic
3. The Department of Community Services, Legal Services Unit
4. Legislative Change
5. ‘Privilege in Care Proceedings’ a paper by Robert McLachlan, solicitor
6. Supreme Court Decision - R v Department of Community Services, Hulme J
1. The NSW Office of the Children’s Guardian
2. The Duration of Children’s Court Orders - Two views
3. New Legislation - The Child Protection (Offenders Registration) Act 2000
4. Children’s Court Decisions
(a) In the matter of the Director-General, Department of Community Servicesand the child AF
Catchwords: parental responsibility and financial support, best interests of the child, permanency planning, least intrusive principle
(b) In the matter of the Director-General and the Department of Community Services and the child ZS
Catchwords: joint parental responsibility, least intrusive principle, permanency planning, best interests of the child
(c )Allocating parental responsibility in relation to an older child
(d) Section 82 Reports
Volume 1 Number 7 October/November
1. The Child Participation Principle in Child Protection Law in New South Wales’ a paper by Professor Patrick Parkinson
2. Supreme Court Decision - Re Fernando & Gabriel, Bell J
1. A message from the Senior Children’s Magistrate
2. Children’s Court Decision - In the matter of IP, LP, RP and BP, Mitchell CM
3. Supreme Court Decision - Re Fernando & Gabriel [2001] NSWSC 1216 (Costs), Bell J
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