Re M (No 6) - [2016] NSWSC 170

Supreme Court

New South Wales

Medium Neutral Citation: Re M (No 6) [2016] NSWSC 170
Hearing dates: 12 – 14 October 2015
Date of orders: 03 March 2016
Decision date: 03 March 2016
Jurisdiction: Equity
Before: Robb J
Decision:
The court will reject the plaintiff’s appeal on her application for leave to apply to rescind or vary the care orders in so far as they deal with parental responsibility for the relevant children, but in relation to the issue of whether the appeal should be allowed to give leave to apply to rescind or vary the care orders in so far as they deal with the plaintiff’s access to the relevant children, the court invites the parties to make further submissions on the issues raised in pars 194 and 195 below, as explained in related paragraphs.

Catchwords:
CIVIL PROCEDURE – appeal from the Children’s Court regarding care orders made – appeal application dealt with by District Court judge – application for extension of time to commence appeal under s 91 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“Care Act”) – Rule 50.3(1)(c) of the Uniform Civil Procedure Rules 2005 (NSW) considered – whether granting an appeal out of time would cause unfairness – held leave limited to delay – held discretion to grant leave be exercised in this instance

CHILDREN – judgments and orders – application for leave for the rescission or variation of care orders under s 90 of the Care Act – children taken into care – Children’s Court orders granted parental responsibility to children’s fathers – mother sought leave to appeal for children to be restored in her care – whether or not there is a realistic possibility of restoration of a child or young person to the custody of the mother – whether there was significant change in relevant circumstances in considering leave – consideration of matters identified by mother – held mother has not demonstrated that she has full insight into her situation – held insufficient time to demonstrate consistent good parenting at the time of hearing – held none of the matters that the mother identified as being a significant change in relevant circumstances – held change in access to child as a further consideration – held further consideration needed for mother’s access to the children and contact between siblings
CIVIL PROCEDURE – application for leave for the rescission or variation of care orders – conditions of grant of leave considered – whether leave to appeal may be given only to certain aspects of a care order –
whether leave should be subject to conditions – whether court has power to defer on a final ruling – invitation to counsel to provide further submission – discretion to grant leave not exercised in this instance
Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW)
Children and Young Persons (Care and Protection) Regulation (NSW)
Children’s Court Act 1987 (NSW)
Children’s Court Regulations 2014 (NSW)
Supreme Court…

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: [2016] NSWSC 170
Decision Date: 03 March 2016

CaseChat Overview and Summary

The matter of Re M (No 6) involved an appeal from the Children’s Court concerning care orders made in relation to the children of the appellant, the mother. The mother sought leave to appeal the Children’s Court orders that granted parental responsibility to the children’s fathers. The District Court dealt with the application for an extension of time to commence the appeal, considering the statutory provisions under section 91 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) and the relevant rules of the Uniform Civil Procedure Rules 2005 (NSW).

The primary legal issues the court addressed were whether granting the appeal out of time would cause unfairness and whether the mother had demonstrated sufficient insight into her situation to warrant an appeal. Additionally, the court considered whether there had been a significant change in relevant circumstances that would justify the leave to appeal, particularly focusing on the mother's ability to demonstrate consistent good parenting and her efforts to address past issues. The court also examined the matter of access to the children and the importance of contact between siblings.

The court held that while the mother had not demonstrated full insight into her situation and had not shown consistent good parenting at the time of the hearing, the appeal was limited to the delay in time. The court exercised its discretion to grant leave for the appeal but limited it to the delay. The court did not exercise its discretion to grant leave for the rescission or variation of the care orders at that time and invited counsel to provide further submissions regarding the conditions of such leave. Ultimately, the court's discretion to grant leave was not exercised in this instance, and no further orders were made regarding the leave to appeal or the care orders.

Orders