D v C; Re B (No 2)

Case [2018] NSWCA 310


Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: D v C; Re B (No 2) [2018] NSWCA 310
Hearing dates: 26 October 2018
Decision date: 13 December 2018
Before: McColl JA at [1];
Basten JA at [2];
Emmett AJA at [99]
Decision:

(1)   Refuse the application to further amend the summons.

 

(2)   Set aside orders 1-5 made in the District Court on 29 June 2018.

 

(3)   Set aside orders 2-4 made in the District Court on 19 July 2018.

 

(4)   Remit the mother’s appeal to the District Court to be determined according to law.

 

(5)   Order that the mother pay the father’s costs of the proceedings in this Court.

 

(6) Grant the mother a certificate under the Suitors’ Fund Act 1951 (NSW).

 (7)   No order as to the costs of the other respondents.
Catchwords:

APPEAL – appeal to District Court – care and protection proceedings – extent to which court should depart from course agreed upon by parties – power of court to examine and cross-examine witnesses

 

CHILD WELFARE – care and protection – final care orders – whether Court required to consider care plan and make findings regarding permanency planning before making orders granting parental responsibility for child to parent – whether such orders are “final care orders” – whether “final care orders” limited to orders removing child from parents on Secretary’s application – Children and Young Persons (Care and Protection) Act 1998, ss 80, 83

 

CHILD WELFARE – care and protection – nature of proceedings – obligation not to conduct proceedings in adversarial manner – power of court to examine and cross-examine witnesses – content of procedural fairness – extent to which court should depart from course agreed upon by parties – Children and Young Persons (Care and Protection) Act 1998, ss 93, 107

 

CHILD WELFARE – care and protection – procedural fairness – obligations to child, parents of child and Secretary, Department of Family and Community Services – whether procedural fairness required adjournment where trial judge departed from case put by appellant and respondent sought to adduce further evidence

 

JUDICIAL REVIEW – procedural fairness –content – scope of obligation to accord in non-adversarial jurisdiction

 

STATUTORY INTERPRETATION – immediate context – structure of statute – importance of reading provisions in context and with regard to internal structure

WORDS AND PHRASES – “final care orders” – “proceedings… are not to be conducted in an adversarial manner” – Children and Young Persons (Care and Protection) Act 1998, ss 78, 80, 83, 93
Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 3, 9, 46, 60, 61, 62, 78, 78A, 80, 83, 90, 91, 93, 106A, 107; Ch 5, Pt 2, Pt 2; Ch 6
Crimes (Administration of Sentences) Act 1999 (NSW), Sch 1,cl 11
Government and Related Employees Appeal Tribunal Act 1980 (NSW), s 37
Mental Health (Forensic Provisions) Act 1990 (NSW), s 12
Supreme Court Act 1970 (NSW), s 69
Cases Cited: Daley v SAS Trustee Corporation (2016) 91 NSWLR…

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AGLC
D v C; Re B (No 2) [2018] NSWCA 310
Case
[2018] NSWCA 310
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal to the Court of Appeal of New South Wales from decisions of the District Court in care and protection proceedings. The appeal was brought by the mother of a child, "B", against orders made by the District Court concerning the child's welfare. The proceedings involved the Secretary of the Department of Family and Community Services, and the father of the child.

The central legal issues before the Court of Appeal were whether the District Court judge had erred in making certain orders without adequately considering the care plan and permanency planning requirements under the *Children and Young Persons (Care and Protection) Act 1998* (NSW), and whether the orders made constituted "final care orders" within the meaning of the Act. Further, the appeal raised questions about the nature of care and protection proceedings, specifically whether they should be conducted in an adversarial manner, and the extent of the court's power to examine and cross-examine witnesses. The court also considered the procedural fairness obligations owed to the parties and the child, and whether an adjournment should have been granted when the trial judge departed from the case presented by the parties.

The Court of Appeal held that care and protection proceedings are not to be conducted in an adversarial manner, and that the court has a broad power to examine witnesses. However, this power must be exercised with regard to the principles of procedural fairness. The court found that the District Court judge had departed from the agreed course of the proceedings and had failed to properly consider the statutory requirements regarding care plans and permanency planning before making orders that effectively determined the child's future. The court emphasised the importance of reading statutory provisions in context and with regard to the overall structure of the Act.

Consequently, the Court of Appeal allowed the mother's appeal, setting aside the orders made by the District Court and remitting the mother's appeal to the District Court for determination according to law. The mother was ordered to pay the father's costs of the proceedings in the Court of Appeal, and was granted a certificate under the *Suitors’ Fund Act 1951* (NSW). No order was made as to the costs of the other respondents.

Orders

Orders of the court

(1) Refuse the application to further amend the summons.

(2) Set aside orders 1-5 made in the District Court on 29 June 2018.

(3) Set aside orders 2-4 made in the District Court on 19 July 2018.

(4) Remit the mother’s appeal to the District Court to be determined according to law.

(5) Order that the mother pay the father’s costs of the proceedings in this Court.

(6) Grant the mother a certificate under the Suitors’ Fund Act 1951 (NSW).

(7) No order as to the costs of the other respondents.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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