DN v Secretary, Department of Communities and Justice

The applicant mother sought leave to appeal an order of the Equity Division of the Supreme Court of New South Wales which dismissed her amended summons. The dispute concerned the parental responsibility for two Aboriginal children who had been placed in the care of non-Aboriginal carers in the United Kingdom. The Minister had previously been conferred parental responsibility for the children, who were at risk of significant harm. The children's carers' temporary visas expired, leading to the Minister consenting to their temporary removal to the UK. The mother then applied for parental responsibility, seeking orders conferring it on the UK carers. The appeal was heard by Mitchelmore and Stern JJA, and Basten AJA.

The central legal issues before the Court of Appeal were whether the Children's Court had the jurisdiction to make orders conferring parental responsibility on the UK carers, particularly given that the children were not present in or ordinarily living in New South Wales. This raised questions about the extent of the jurisdiction of specialist inferior courts compared to the Supreme Court's *parens patriae* jurisdiction, and how jurisdiction-conferring provisions should be interpreted, especially in the context of international arrangements and the comity of nations. The Court also considered whether the jurisdiction of the Children's Court was limited by implied restrictions or if it should be interpreted broadly in light of its legislative purpose and history.

The Court of Appeal reasoned that jurisdiction-conferring provisions, particularly those establishing specialist courts, should not be read down by implied limitations. They found that the Children's Court possessed the necessary jurisdiction to make the orders in question, notwithstanding the children's location outside New South Wales, as the legislative framework did not impose such a geographical restriction. The Court emphasised that the Children's Court was designed to deal with child welfare matters and its jurisdiction should be interpreted to give effect to its remedial purpose. The Court allowed the appeal, setting aside the Equity Division's order and quashing the orders made by the Children's Court on 16 June 2022.