C v D and the Secretary, Department of Family and Community Services
[2019] NSWDC 389
•09 August 2019
District Court
New South Wales
Medium Neutral Citation: C v D and The Secretary, Department of Family and Community Services [2019] NSWDC 389 Hearing dates: On the papers Date of orders: 09 August 2019 Decision date: 09 August 2019 Jurisdiction: Civil Before: Judge Levy SC Decision: 1. Appeal allowed;
2. Pursuant to s 90(7)(a) of the Children and Young Persons (Care and Protection) Act 1998 (NSW), the orders made in proceedings numbered 2017/206220 in the Children’s Court at Tweed Heads on 15 December 2017 are rescinded.Catchwords: CHILD CARE APPEAL – final orders Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW), s 90(7)(a), s 105 Cases Cited: “B” (No 2) v The Secretary, Department of Family and Community Services [2018] NSWDC 174
D v C [2018] NSWCA 190
D v C, B (No 2) [2018] NSWCA 310Category: Consequential orders (other than Costs) Parties: The Secretary, Department of Family & Community Services (FaCS)
“B” - The child
“C” - Mother of the child
“D” - Father of the childRepresentation: Counsel and Solicitors:
Ms K Smith Crown Solicitor for NSW (FaCS)
Ms K Phillips (Solicitor, Independent Legal Representative of the child)
File Number(s): 2017/386548 Publication restriction: Continuation of previous restriction on publication of names and identifying details other than litigation pseudonyms: s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW)
Judgment
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With the consent of all affected parties, I have been asked to make these final orders, on the papers, thereby concluding a child care appeal that has had a protracted course. Over time, in different courts, the proceedings have been allocated various litigation pseudonyms.
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The background is that I heard the appeal over the course of 7 days in May and June 2018, in Lismore. On 29 June 2018 I allowed the appeal: “B” (No 2) v The Secretary, Department of Family and Community Services [2018] NSWDC 174.
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In making that determination, in “B” (No 2) v The Secretary, Department of Family and Community Services, at [2], I summarised the procedural history of the proceedings in the Children’s Court as follows:
“2. The appealed decision relates to proceedings that had incrementally progressed over a 14 month period, which commenced with a hearing in the Children’s Court at Tweed Heads, on 27 October 2016, and which then continued part-heard, in non-consecutive segmented hearings that took place on 27 January 2017, 2 March 2017, 28 April 2017, and 20 July 2017. The reserved decision under present appeal was delivered, on 15 December 2017.”
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On 19 July 2018, after allowing the appeal from the Children’s Court, final orders were made allocating parental responsibility to the plaintiff’s mother, on conditions. At that time, in this Court, the father unsuccessfully sought a stay of those orders.
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On 27 August 2018, pending a judicial review, the father’s application for a stay of those orders was also refused in the Court of Appeal: D v C [2018] NSWCA 190.
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An appeal by way of judicial review was heard on 26 October 2018 and decided on 13 December 2018: D v C; B (No 2) [2018] NSWCA 310. At that time, at [98], orders were made setting aside the orders made in this Court that allocated parental responsibility to the mother. The proceedings were then remitted to be heard again in the District Court, the intention being for that hearing to take place before another Judge.
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However, all affected parties have now reached an agreement and have made a consent application to this Court for final orders which now resolve the proceedings, subject to the approval of the Court. The parties have asked that I consider and make the agreed orders.
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The result of that agreement is that the child the subject of the appeal is again restored to the mother.
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In care proceedings, the Court must be satisfied that consent orders are appropriate. I am satisfied that the orders are appropriate.
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Accordingly, the final formal orders are:
Appeal allowed;
Pursuant to s 90(7)(a) of the Children and Young Persons (Care and Protection) Act 1998 (NSW), the orders made in proceedings numbered 2017/206220 in the Children’s Court at Tweed Heads on 15 December 2017 are rescinded.
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No other orders are required. These child care proceedings are now finalised.
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Decision last updated: 09 August 2019
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