Re: Elizabeth - [2011] NSWDC 245

District Court

New South Wales

Medium Neutral Citation: Re: Elizabeth [2011] NSWDC 245
Hearing dates: 8, 10, 11, 12, 15, 16, 17, 18 August 2011
Decision date: 21 September 2011
Before: Letherbarrow SC DCJ
Decision:
Summons dismissed

Catchwords: CHILDREN AND YOUNG PERSONS - Children and Young Persons (Care and Protection Act) 1998 (NSW) - mother's appeal pursuant to s 91 - safety, welfare and wellbeing of the child - burden of proof - is Act premised on goal of keeping families together - realistic possibility of restoration - use of the United Nations Convention on the Rights of the Child s 90(6) considerations - age of the child - length of time in care of present care givers - wishes of the child - attachment issues - adequate standard of care - risk of psychological harm - consideration of care plan - leave to vary current parental responsibility order - mother's summons dismissed
Legislation Cited: Children and Young Persons (Care and Protection) Act 1998, Criminal Code Act, 1995
Supreme Court Act, 1970
Cases Cited: Re Sophie (No 2) [2009] NSWCA 89, M v M [1988] HCA68; 166 CLR 69, L v District Court of New South Wales [2011] NSWCA 43, Director-General Department of Community Services v D [2007] NSWSC 762, In the matter of Campbell [2011] NSWSC 761, Re Tracey [2011] NSWCA 43, Re an Infant K (1973) 1NSWLR 311, Rice and Asplund (1979) FLCÂ¶ 90 - 725, Re Saunders and Morgan & Anor v Department of Community Services (12/12/2008, NSWDC, unreported, Johnston DCJ)
Texts Cited: UN General Assembly, Convention of the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3, available at: HYPERLINK " [accessed 18 January 2013]
Category: Principal judgment
Parties: Suppression of the parties' details. Suppression of details of solicitors acting for parties.
Representation: Suppression of the parties' details. Suppression of details of solicitors acting for parties.
Suppression of the parties' details. Suppression of details of solicitors acting for parties.

File Number(s): 2009/335531
Publication restriction: Suppression of the parties' details. Suppression of details of solicitors acting for parties.

Judgment

Introduction

By her summons filed in this court on 11 June 2009, the mother appeals against the decision of Senior Children's Magistrate Mitchell of 15 May 2009, in relation to her daughter "Elizabeth", pursuant to s 91 of the Children and Young Persons (Care and Protection) Act 1998 (the Act).

In his decision, the Senior Children's Magistrate declined to make orders sought pursuant to s 90 of the Act which would have the effect of returning Elizabeth to her mother's care and made orders whereby she was placed under the parental responsibility of the Minister to the age of 18 years with aspects of parental responsibility exercised jointly by the Minister and the relevant foster carers or solely by such foster carers.

The four grounds of appeal set out in the mother's summons are as follows:

(i) "The Magistrate erred in finding that there was not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re: Elizabeth

Details

AGLC: Re: Elizabeth [2011] NSWDC 245
Case: [2011] NSWDC 245
Decision Date: 21 September 2011

CaseChat Overview and Summary

In the case of Re: Elizabeth, the matter involved the appeal of a mother against an order made under the Children and Young Persons (Care and Protection) Act 1998 (NSW). The primary concern was the safety, welfare, and wellbeing of the child, Elizabeth. The Family Court of Australia was tasked with reviewing the decision to maintain Elizabeth in the care of the current caregivers.

The court was required to determine whether the Act's purpose was primarily to keep families together and if there was a realistic possibility of restoration of the child to her mother. It also needed to consider the United Nations Convention on the Rights of the Child, particularly in relation to Elizabeth's age, the duration she had been in the current caregivers' care, and her wishes. Additionally, the court had to assess attachment issues, the adequacy of the standard of care provided, and the risk of psychological harm to Elizabeth. The appropriateness of the care plan and the mother's request to vary the current parental responsibility order were also evaluated.

The court dismissed the mother's summons. It found that the Act was not solely about keeping families together but prioritised the child's best interests. The court concluded that there was no realistic possibility of restoration of Elizabeth to her mother's care due to attachment issues and the risk of psychological harm. Furthermore, the current caregivers were providing an adequate standard of care, and Elizabeth's wishes aligned with remaining in their care. Consequently, the court upheld the existing order and dismissed the mother's appeal.

The court did not make any orders varying the current parental responsibility. The decision emphasised the paramountcy of the child's welfare and the need to protect her from potential harm.

Orders

Orders of the court

Summons dismissed

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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Medium Neutral Citation:	Re: Elizabeth [2011] NSWDC 245
Hearing dates:	8, 10, 11, 12, 15, 16, 17, 18 August 2011
Decision date:	21 September 2011
Before:	Letherbarrow SC DCJ
Decision:	Summons dismissed
Catchwords:	CHILDREN AND YOUNG PERSONS - Children and Young Persons (Care and Protection Act) 1998 (NSW) - mother's appeal pursuant to s 91 - safety, welfare and wellbeing of the child - burden of proof - is Act premised on goal of keeping families together - realistic possibility of restoration - use of the United Nations Convention on the Rights of the Child s 90(6) considerations - age of the child - length of time in care of present care givers - wishes of the child - attachment issues - adequate standard of care - risk of psychological harm - consideration of care plan - leave to vary current parental responsibility order - mother's summons dismissed
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998, Criminal Code Act, 1995 Supreme Court Act, 1970
Cases Cited:	Re Sophie (No 2) [2009] NSWCA 89, M v M [1988] HCA68; 166 CLR 69, L v District Court of New South Wales [2011] NSWCA 43, Director-General Department of Community Services v D [2007] NSWSC 762, In the matter of Campbell [2011] NSWSC 761, Re Tracey [2011] NSWCA 43, Re an Infant K (1973) 1NSWLR 311, Rice and Asplund (1979) FLCÂ¶ 90 - 725, Re Saunders and Morgan & Anor v Department of Community Services (12/12/2008, NSWDC, unreported, Johnston DCJ)
Texts Cited:	UN General Assembly, Convention of the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3, available at: HYPERLINK " [accessed 18 January 2013]
Category:	Principal judgment
Parties:	Suppression of the parties' details. Suppression of details of solicitors acting for parties.
Representation:	Suppression of the parties' details. Suppression of details of solicitors acting for parties. Suppression of the parties' details. Suppression of details of solicitors acting for parties.
File Number(s):	2009/335531
Publication restriction:	Suppression of the parties' details. Suppression of details of solicitors acting for parties.