Re M; Application of YA - [2014] NSWSC 1736

Supreme Court

New South Wales

Medium Neutral Citation: Re M; Application of YA [2014] NSWSC 1736
Hearing dates: 3 December 2014
Decision date: 03 December 2014
Jurisdiction: Equity Division - Protective List
Before: Lindsay J
Decision:
Summons dismissed

Catchwords: FAMILY LAW AND CHILD WELFARE - Appeals - Procedure - Extension of time - Appeal from Children's Court orders relating to parental responsibility of young person - No adequate explanation for delay - Safety, welfare and wellbeing of young person paramount - Not in interests of young person to grant extension of time - Proceedings dismissed.
Legislation Cited: Children's Court Act 1987
Children's Court Regulation 2009 NSW
Children and Young Persons (Care and Protection) Act 1998 NSW
Uniform Civil Procedure Rules 2005 NSW
Cases Cited: -
Texts Cited: -
Category: Principal judgment
Parties: Plaintiff: Carer of the Young Person, M
First Defendant: Secretary, Family and Community Services
Second Defendant: Birth Mother of M
Third Defendant: M, by her guardian ad litem, BR
Representation: Counsel:
Plaintiff: in person
First Defendant: M Neville
Second Defendant: K Stanford (solicitor)
Third Defendant: T Allen
Solicitors:
First Defendant: The Crown Solicitors Office
Second Defendant: Stanford Solicitors & Conveyancers
Third Defendant: Rowley & Associates

File Number(s): 2014/00212307

Judgment - EX TEMPORE

Before the Court is an application (made by a summons filed on 5 November 2014) for an extension of time within which the plaintiff may appeal from orders made by the Children's Court of New South Wales (constituted by the President of that Court) on 12 September 2014.

The principal order of the Children's Court under appeal is an order that "all aspects of parental responsibility [for the young person, "M"] are allocated to the Minister".

An appeal, commenced within time, is ostensibly an appeal that the plaintiff would have "as of right" under s 91 of the Children and Young Persons (Care and Protection) Act 1998 NSW ("the Care Act"), read with ancillary legislation.

An appeal under s 91 of the Care Act does not require an appellant to demonstrate error in the reasoning of the decision maker whose decision is under challenge or in processes leading to the decision under challenge.

The principal order sought by the plaintiff, should she be granted an extension of time within which to appeal, is an order that, in lieu of the principal order made by the Children's Court, there be an order that the young person the subject of the proceedings (M) be placed in the parental responsibility of the plaintiff to the age of 18 years.

The plaintiff's application for an order that she be granted an extension of time within which to appeal is made pursuant to r 50.3(1)(c) of the Uniform Civil Procedure Rules 2005 NSW, read with s 91 of the Care Act; s 22A of the Children's Court Act 1987 NSW; and cl 5 of the Children's Court Regulation 2009 NSW. Such an order lies within the discretion of the Court. It is not available as of right.

Because the decision under…

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.

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Details

Case: [2014] NSWSC 1736
Decision Date: 03 December 2014

CaseChat Overview and Summary

The case before the court involved an application by YA in relation to the parental responsibility of a young person. YA sought to appeal from orders made by the Children's Court. The primary focus was whether the court should grant an extension of time for YA to lodge the appeal, given the delay in doing so. The matter was heard and determined in the relevant state's appellate court.

The court had to address two principal legal issues. Firstly, whether YA had provided a sufficient explanation for the delay in filing the appeal. Secondly, whether granting the extension of time would be in the best interests of the young person, considering the paramountcy of their safety, welfare, and wellbeing.

The court found that YA had not provided an adequate explanation for the significant delay in lodging the appeal. Furthermore, the court considered the welfare of the young person to be of utmost importance. In light of this, the court determined that it was not in the young person's best interests to grant the extension of time. Consequently, the appeal was dismissed, and the proceedings were terminated. This decision underscored the importance of timely action in matters involving the welfare of young persons and the stringent requirements for extending time in such cases.

Orders