Re Jeremy - [2017] NSWCA 220

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Re Jeremy (a pseudonym); DM v Secretary, Department of Family and Community Services [2017] NSWCA 220
Hearing dates: 16 August 2017
Decision date: 01 September 2017
Before: McColl JA at [1];
Basten JA at [2];
Adamson J at [45]
Decision:
(1) Set aside the orders made by the District Court on 11 July 2016 dismissing the applicants’ appeal and confirming the orders of the Children’s Court.
(2) Remit to the District Court the appeal brought by the applicants from the Children’s Court, to be determined according to law.
Catchwords:
SUPERVISORY JURISDICTION – review sought of judgment of District Court on appeal from Children’s Court – application for leave to apply to vary care orders – whether District Court erred in law in failing to apply provisions of the Children and Young Persons (Care and Protection) Act 1998, s 90 – whether relief futile or unnecessary
CHILD WELFARE – care and protection of children –application for leave to vary care orders – whether “significant change in any relevant circumstances” – whether applicants had arguable case
Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 82, 86, 90, 91; Ch 2, Pt 2
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), r 59.4
Cases Cited: JL v Secretary, Department of Family and Community Services [2015] NSWCA 88
King v Goussetis (1986) 5 NSWLR 89
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
S v Department of Community Services [2002] NSWCA 151; 29 Fam LR 144
Wade v Burns (1966) 115 CLR 537; [1966] HCA 35
Texts Cited: M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, Thomson Reuters, 2017)
Category: Principal judgment
Parties: DM (First Applicant)
MM (Second Applicant)
Secretary, Department of Family and Community Services (First Respondent)
Independent Legal Representative for Jeremy and Nikki (Second Respondent)
District Court of New South Wales (Third Respondent)
Representation:
Counsel:
Second Applicant self-represented
Mr M Anderson (First Respondent)
Ms M Neville (Second Respondent)
Submitting Appearance (Third Respondent)
Solicitors:
Applicants self-represented
Crown Solicitor’s Office (First and Third Respondents)
Rowley & Associates (Second Respondent)

File Number(s): 2016/249033
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Civil

Date of Decision:

11 July 2016

Before:

Hatzistergos DCJ

File Number(s):

2015/263192

Judgment

McCOLL JA: I agree with Basten JA.
BASTEN JA: The female applicant is the mother of four children, two of whom were placed in the care of the Minister pursuant to orders made on 20 June 2013 under the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“Care and Protection Act”). The male applicant was the step-father of one of the children removed from the family and was the natural father of the other three children. (Sadly, he died in the short period while judgment has been reserved.) To avoid possible contraventions…

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 Jeremy

Details

AGLC: Re Jeremy (a pseudonym); DM v Secretary, Department of Family and Community Services [2017] NSWCA 220
Case: [2017] NSWCA 220
Decision Date: 01 September 2017

CaseChat Overview and Summary

The applicants sought leave to appeal to the Supreme Court of New South Wales from a decision of the District Court, which had dismissed their appeal from orders made by the Children’s Court. The underlying dispute concerned an application to vary existing care orders made under the *Children and Young Persons (Care and Protection) Act 1998* (NSW).

The primary legal issues before the Supreme Court were whether the District Court had erred in law by failing to properly apply section 90 of the *Children and Young Persons (Care and Protection) Act 1998* and whether the relief sought by the applicants was futile or unnecessary. Relatedly, the Court considered whether the District Court had correctly assessed whether there had been a "significant change in any relevant circumstances" and whether the applicants had an arguable case for variation of the care orders.

The Supreme Court found that the District Court had erred in law in its approach to the application for leave to vary the care orders. The Court held that the District Court had not correctly applied the statutory test under section 90, which requires consideration of a significant change in relevant circumstances and whether the applicants have an arguable case. The Court determined that the District Court’s dismissal of the appeal was based on an incorrect application of the law.

Consequently, the Supreme Court set aside the orders of the District Court and remitted the applicants' appeal back to the District Court for determination according to law.

Orders

Orders of the court

(1) Set aside the orders made by the District Court on 11 July 2016 dismissing the applicants’ appeal and confirming the orders of the Children’s Court.

(2) Remit to the District Court the appeal brought by the applicants from the Children’s Court, to be determined according to law.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Re Jeremy (a pseudonym); DM v Secretary, Department of Family and Community Services [2017] NSWCA 220
Hearing dates:	16 August 2017
Decision date:	01 September 2017
Before:	McColl JA at [1]; Basten JA at [2]; Adamson J at [45]
Decision:	(1) Set aside the orders made by the District Court on 11 July 2016 dismissing the applicants’ appeal and confirming the orders of the Children’s Court. (2) Remit to the District Court the appeal brought by the applicants from the Children’s Court, to be determined according to law.
Catchwords:	SUPERVISORY JURISDICTION – review sought of judgment of District Court on appeal from Children’s Court – application for leave to apply to vary care orders – whether District Court erred in law in failing to apply provisions of the Children and Young Persons (Care and Protection) Act 1998, s 90 – whether relief futile or unnecessary CHILD WELFARE – care and protection of children –application for leave to vary care orders – whether “significant change in any relevant circumstances” – whether applicants had arguable case
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 82, 86, 90, 91; Ch 2, Pt 2 Supreme Court Act 1970 (NSW), s 69 Uniform Civil Procedure Rules 2005 (NSW), r 59.4
Cases Cited:	JL v Secretary, Department of Family and Community Services [2015] NSWCA 88 King v Goussetis (1986) 5 NSWLR 89 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 S v Department of Community Services [2002] NSWCA 151; 29 Fam LR 144 Wade v Burns (1966) 115 CLR 537; [1966] HCA 35
Texts Cited:	M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, Thomson Reuters, 2017)
Category:	Principal judgment
Parties:	DM (First Applicant) MM (Second Applicant) Secretary, Department of Family and Community Services (First Respondent) Independent Legal Representative for Jeremy and Nikki (Second Respondent) District Court of New South Wales (Third Respondent)
Representation:	Counsel: Second Applicant self-represented Mr M Anderson (First Respondent) Ms M Neville (Second Respondent) Submitting Appearance (Third Respondent) Solicitors: Applicants self-represented Crown Solicitor’s Office (First and Third Respondents) Rowley & Associates (Second Respondent)
File Number(s):	2016/249033
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Civil Date of Decision: 11 July 2016 Before: Hatzistergos DCJ File Number(s): 2015/263192