Court of Appeal
New South Wales
Case Title: Re Kerry (No 2) Medium Neutral Citation: [2012] NSWCA 127 Hearing Date(s): 17 April 2012 Decision Date: 09 May 2012 Jurisdiction: Before: Barrett JA (at [1]); Tobias AJA (at [86]); Schmidt J (at [87])
Decision: 1. Order that the claims in prayers 1 and 2 of the further amended summons be dismissed.
2. Direct that any party seeking an order that another party pay the whole or any part of the first party's costs of the proceedings to date do, within fourteen days, serve on that other party the terms of the order sought and brief submissions in support of the making of that order.
3. Direct that a party served in accordance with order 2 do, within fourteen days after service, serve brief written submissions in response.
4. Direct that a copy of each document so served be filed by delivery to the Registrar of the Court of Appeal promptly after it is served.
5. Reserve for future consideration by this Court on the papers the question of the making of any order as to costs of the proceedings to date.
6. Remit the balance of the further amended summons to the Equity Division for determination.[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: FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - proceedings relating to care and protection - competing applications for allocation of parental responsibility determined by Children's Court - orders varied on appeal to District Court - JUDICIAL REVIEW application for order in the nature of certiorari in respect of District Court decision - whether jurisdictional error - whether error on the face of the record - whether relevance of principles in United Nations Convention on the Rights of the Child wrongly rejected - whether failure to comply with s 9(2)(c) of Children and Young Persons (Care and Protection)Act 1998 - whether s 79(3) implemented - whether failure to comply with s 13 and 78A provisions with respect to Aboriginality
Legislation Cited: Children and Young Persons (Care and Protection) Act 1998, Part 1, Chapter 2, ss 3, 9(1), 9(2)(c), 13(1), 13(6), 60, 71(1)(c), 71(1)(d), 78(1). 78(2)(a), 78(2)(b), 78A(3), 78A(4), 79(1), 79(3), 80, 81(1)(b), 86(2), 91, 157
Interpretation Act 1987, s 15(2)
Supreme Court Act 1970, ss 51(1)(b), 69
United Nations Conventions on the Rights of the Child (1989), arts 7(1), 8(1), 9(1), 18(1), 29(1)(c), 30Cases Cited: Bushell v Environment Secretary [1981] AC 75
Craig v South Australia [1995] HCA 58; 184 CLR 163
David White v Director-General of the Department of Human Services [2011] NSWDC 106; (2011) 13 DCLR (NSW) 192
Continue reading Re Kerry (No 2)
Sign in free to access the full text
- AGLC
- Re Kerry (No 2) [2012] NSWCA 127
- Case
- [2012] NSWCA 127
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether the District Court had committed jurisdictional error. Specifically, the court considered whether the District Court had wrongly rejected the relevance of principles from the United Nations Convention on the Rights of the Child, failed to comply with s 9(2)(c) of the *Children and Young Persons (Care and Protection) Act 1998*, failed to implement s 79(3) of that Act, or failed to comply with ss 13 and 78A of the Act concerning Aboriginality.
The Court of Appeal dismissed the claims in prayers 1 and 2 of the further amended summons. The court reserved for future consideration the question of making any order as to costs of the proceedings to date, directing that any party seeking costs must serve the terms of the order sought and submissions within fourteen days, with responding submissions to be served within a further fourteen days. The balance of the further amended summons was remitted to the Equity Division for determination.
Orders
Orders of the court
1. Order that the claims in prayers 1 and 2 of the further amended summons be dismissed.
2. Direct that any party seeking an order that another party pay the whole or any part of the first party's costs of the proceedings to date do, within fourteen days, serve on that other party the terms of the order sought and brief submissions in support of the making of that order.
3. Direct that a party served in accordance with order 2 do, within fourteen days after service, serve brief written submissions in response.
4. Direct that a copy of each document so served be filed by delivery to the Registrar of the Court of Appeal promptly after it is served.
5. Reserve for future consideration by this Court on the papers the question of the making of any order as to costs of the proceedings to date.
6. Remit the balance of the further amended summons to the Equity Division for determination.
[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.]
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
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.