Lv v Secretary of Department of Communities and Justice

The case of Lv v Secretary of Department of Communities and Justice involved an appeal by the biological mother of a child, who had been under the care of his maternal aunt and her family in Queensland. The Secretary of the Department of Communities and Justice sought to transfer the child's care orders to the Chief Executive of the Queensland Department of Children, Youth, Justice and Multicultural Affairs, while the mother applied for contact orders. The Children's Court of New South Wales had transferred the care orders to Queensland and refused the mother's contact application. The primary issues before the court were whether the appeal against the decision to transfer care orders was out of time and could not be extended, whether a contact order should be made under section 86 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) in circumstances where the care of the child was to be transferred to Queensland, and whether a contact order should be made regardless of the transfer. Additionally, the court needed to determine the proper approach to an appeal under section 91 of the Act, with reference to the conduct of the parties during the proceedings.

The court found that the appeal against the decision to transfer care orders was not out of time and could be extended. It held that the decision to transfer the care orders was not an appealable decision, and therefore the appeal was not maintainable. The court also considered that a contact order should be made under section 86 of the Act in circumstances where the care of the child was to be transferred to Queensland, and in any event, a contact order should be made. The court found that the mother's appeal was partly successful, and the appeal against the decision to transfer care orders was dismissed. However, the appeal against the refusal of the mother's contact application was upheld, and the case was remitted to the Children's Court of New South Wales for further consideration of the contact application. The court further held that the parties had conducted their cases in a manner that was not in accordance with the spirit of section 91 of the Act, and that the mother's appeal should be allowed despite this.

The orders made by the court were that the appeal against the decision to transfer care orders was dismissed, but the appeal against the refusal of the mother's contact application was upheld. The case was remitted to the Children's Court of New South Wales for further consideration of the contact application. The court also made orders for costs, including that the mother's appeal be heard and determined within six weeks of the remittal of the case to the Children's Court. The court further ordered that the parties bear their own costs of the appeal, and that the mother's costs of the remittal proceedings be paid by the Secretary.