Re Felicity

[2013] NSWCA 21

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Re Felicity [2013] NSWCA 21

Hearing dates:

8 February 2013

Decision date:

08 February 2013

Before:

Beazley JA at [1]; [6]
Macfarlan JA at [2]

Decision:

Summons seeking leave to appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - application for leave to appeal dismissed - no issue of principle

Legislation Cited:

Children & Young Persons (Care and Protection) Act 1998
Family Law Act 1975 (Cth)

Cases Cited:

Re Felicity [2012] NSWSC 494

Category:

Procedural and other rulings

Parties:

Mother of Felicity (Applicant)
Director General, Department of Family & Community Services (First Respondent)
Father of Felicity (Second Respondent)
Child's Independent Legal Representative/Felicity (Third Respondent)

Representation:

Counsel:
G Potkonyak (Solicitor) (Applicant)
K Richardson (First Respondent)
Submitting Appearance (Second Respondent)
P Guterres (Third Respondent)
Solicitors:
Capellia Legal (Applicant)
Crown Solicitor's Office (First Respondent)
Legal Aid NSW (Third Respondent)

File Number(s):

CA 2012/288627

 Decision under appeal 

Jurisdiction:

9111

Citation:

Re Felicity [2012] NSWSC 494

Date of Decision:

2012-05-01 00:00:00

Before:

White J

File Number(s):

SC 2011/407161

Judgment

1. BEAZLEY JA: I will ask Macfarlan JA to give the reasons of the Court.

1. MACFARLAN JA: This is an application for leave to appeal against the decision of White J in Re Felicity [2012] NSWSC 494. As judgment was given on 1 May 2012 and the summons seeking leave to appeal was not filed until 17 September 2012, the applicant needs, and seeks, a substantial extension of time to validate the filing of her summons.

1. It is unnecessary to consider discretionary considerations which may weigh against the applicant as I am of the view that the appeal sought to be brought has no realistic prospect of success. The reasons why the applicant failed at first instance are clearly described in White J's thorough judgment. On her application to this Court, the applicant has not been able to advance any arguable basis for a conclusion that White J erred in any respect. The essence of the applicant's argument is that s 69ZK of the Family Law Act 1975 (Cth) is inapplicable because, although the Children & Young Persons (Care and Protection) Act 1998 (NSW) is a "child welfare law" within the meaning of the section, that Act is invalid because it is inconsistent with the Family Law Act - see s 109 of the Constitution. However, as White J held, there is no such inconsistency because s 69ZK resolves any potential inconsistency.

1. The applicant also seeks leave to appeal against a costs order made by Slattery J on 22 December 2011. As she has not demonstrated that…