D v C; Re B (No 2)

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.