Re M (No 8) - [2016] NSWSC 641

Supreme Court

New South Wales

Medium Neutral Citation: Re M (No 8) [2016] NSWSC 641
Hearing dates: On the papers
Date of orders: 18 May 2016
Decision date: 18 May 2016
Jurisdiction: Equity
Before: Robb J
Decision:
(1) Extend, pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 50.3(1)(c), the time for the plaintiff to file the summons in these proceedings to 15 December 2014
(2) Order that the claims for relief in the plaintiff’s summons are otherwise dismissed

Catchwords:
CIVIL PROCEDURE -- HELD extension of time for plaintiff to file her summons for leave to appeal under s 91 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care Act) granted
CHILDREN – judgments and orders – application for leave to apply for the rescission or variation of care orders under s 90 of the Care Act – completion of proceedings the subject of the judgment in Re M (6): [2016] NSWSC 170 – HELD plaintiff has not demonstrated that her conduct is likely to change in a way that would justify the court in exploring the answers to the questions set out at [194] of the principal judgment – questions not considered – plaintiff’s application dismissed
Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Re M (No 6) [2016] NSWSC 170
Category: Consequential orders (other than Costs)
Parties: BM (plaintiff)
Department of Family & Community Services (first defendant)
MB (second defendant)
MS (third defendant)
RM (fourth defendant)
HM (fifth defendant)
ZM (sixth defendant)
Representation:
Counsel: A Allen (first defendant)
P Braine (second defendant)
R Dart (third defendant)
C Wilson (fourth, fifth and sixth defendant)
Solicitors: plaintiff – self represented
NSW Crown Solicitors Office (first defendant)
Rowley & Associates (second defendant)
Legal Aid NSW (third defendant)
Pogson Cronin (fourth, fifth and sixth defendants)

File Number(s): 2014/369121
Publication restriction: None

Judgment

These reasons for judgment concern an appeal by a mother, who I will call BM, under s 91 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care Act), from a decision of the Children’s Court refusing an application made by BM under s 90 of the Care Act for leave to apply to rescind or vary care orders made in respect of three of her five children, RM, HM and ZM.
I published my principal reasons for judgment on 3 March 2016: see Re M (No 6) [2016] NSWSC 170.
Apart from stating at [204] that I would make the order sought by BM in par 1 of her summons, in which she sought an extension of time in which to appeal, I did not make any other final orders.
I found at [178] that, at this stage, there is no realistic possibility that parental responsibility will be restored to BM in respect of her children RM, HM and ZM. That finding has the consequence that I could not grant the order sought by BM, in par…

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 641
Decision Date: 18 May 2016

CaseChat Overview and Summary

The case of Re M (No 8) involves the plaintiff, who is seeking an extension of time to file her summons for leave to appeal a decision made under section 91 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). The matter was heard in the Supreme Court of New South Wales. The plaintiff's application is related to an earlier judgment in Re M (6), where care orders were made concerning the children. The plaintiff now seeks to either rescind or vary these care orders under section 90 of the Care Act.

The primary legal issue the court had to decide was whether the plaintiff's conduct was such that it would justify the court in exploring the questions outlined at [194] of the principal judgment. These questions pertain to the potential grounds for rescission or variation of the care orders. The court needed to assess whether there was a likelihood that the plaintiff's conduct would change in a manner that would warrant reconsideration of the existing orders.

The court found that the plaintiff had not demonstrated a likelihood of future conduct that would justify the court in exploring the outlined questions. Consequently, the court dismissed the plaintiff's application. The reasoning was that the plaintiff's past conduct did not provide sufficient grounds to warrant further investigation into the potential rescission or variation of the care orders. As a result, the questions at [194] of the principal judgment were not considered.

In summary, the Supreme Court of New South Wales dismissed the plaintiff's application for an extension of time to file her summons for leave to appeal, finding that the plaintiff had not shown a likelihood of changing conduct that would justify further exploration of the issues.

Orders