Re Felicity; FM v Secretary, Department of Family and Community Services (No 3)

This matter concerned an appeal to the Court of Appeal of New South Wales from a decision of the District Court, which had heard an appeal from the Children's Court. The primary parties were the Secretary of the Department of Family and Community Services (the applicant) and a child, Felicity, represented by her father. The dispute arose from the Department's application to rescind or vary an existing care order concerning Felicity, which had expired upon her reaching a specific age. The Department sought to extend its period of responsibility.

The Court of Appeal was required to determine several legal issues. These included whether the District Court had erred in law by dismissing the Department's appeal from the Children's Court, and whether there had been jurisdictional error or error of law on the face of the record. Further issues concerned the application of the doctrine of issue estoppel to findings made in the original care order proceedings, particularly in light of the statutory provision allowing for rescission or variation of care orders due to a "significant change in any relevant circumstances." The Court also considered allegations of apprehended bias and a failure by the District Court judge to consider the applicant's submissions.

The Court reasoned that the District Court's judgment dismissing the appeal had been superseded by the judgment of the Court of Appeal, applying the principle from *Wishart v Fraser*. The Court found that the circumstances relied upon by the Department did not establish a "significant change" as contemplated by section 90 of the *Children and Young Persons (Care and Protection) Act 1998* (NSW) to warrant rescission or variation of the care order. The Court also determined that the allegations of apprehended bias were not made out.

Consequently, the Court of Appeal set aside the order of the District Court that dismissed the appeal and otherwise dismissed the further amended summons filed by the applicant. The applicant was ordered to pay the costs of the Secretary and the third defendant, with the latter's costs to be assessed on the basis of a litigant in person.