Re Felicity
[2013] NSWCA 21
•08 February 2013
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
BEAZLEY JA: I will ask Macfarlan JA to give the reasons of the Court.
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.
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.
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 there is any arguable basis for considering that his Honour's discretion miscarried, leave should be refused.
In these circumstances, the application for an extension of time and for leave to appeal should be dismissed with costs. I note in conclusion that an application for variation of the order made under the New South Wales Act in relation to the care of the child, Felicity, has been fixed for hearing in the Children's Court for three days commencing, 2 April 2013.
BEAZLEY JA: The orders of the Court are those proposed by Macfarlan JA, that is, that the orders sought in the summons are refused and the applicant is to pay the costs of the summons.
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Decision last updated: 15 February 2013
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