Spigelman CJ at [1], Beazley JA at [50], Giles JA at [51]
Decision:
(1) Order that the decision of the District Court of New South Wales made on 28 July 2010 be quashed and that the proceedings be remitted to the District Court to be heard and determined according to law. (2) Make no order as to costs. [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:
CHILDREN AND YOUNG PERSONS - Children and Young Persons (Care and Protection Act) 1998 (NSW) - child under parental responsibility of Minister - application by mother for parental responsibility - existing care plan with two carers but one had died - application of principle of least intrusive intervention in s 9(2)(c) - confined to when necessary to take action to protect child from harm - does not apply where question is whether existing care arrangements are to be displaced - consideration of care plan required by s 80 - care plan that is considered must be relevant to the circumstances - need for revised care plan - (per Spigelman CJ and Beazley JA) treaty obligations under Convention on the Rights of the Child capable of being a relevant consideration to the exercise of discretion - held error of law (application of principle of least intrusive intervention) and jurisdictional error (failure to consider revised care plan and rejection of regard to Convention on the Rights of the Child).
[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
AGLC
Re Tracey [2011] NSWCA 43
Case
[2011] NSWCA 43
Decision Date
CaseChat Overview and Summary
The case of *Re Tracey* concerned an application by a mother for parental responsibility of her child, who was under the parental responsibility of the Minister. The existing care plan involved two carers, but one had since died. The appeal was heard by Spigelman CJ, Beazley JA, and Giles JA.
The legal issues before the court were whether the District Court had erred in its application of the principle of least intrusive intervention under section 9(2)(c) of the *Children and Young Persons (Care and Protection) Act 1998* (NSW), and whether it had committed jurisdictional error by failing to consider a revised care plan and by rejecting the relevance of treaty obligations under the Convention on the Rights of the Child.
The court, comprising Spigelman CJ and Beazley JA, reasoned that the principle of least intrusive intervention was confined to situations where action was necessary to protect a child from harm, and did not apply to the question of whether existing care arrangements should be displaced. They further held that consideration of a care plan, as required by section 80 of the Act, necessitated a plan relevant to the current circumstances, implying the need for a revised plan. Additionally, they considered that treaty obligations under the Convention on the Rights of the Child were capable of being a relevant consideration in the exercise of discretion.
The court ordered that the decision of the District Court of New South Wales made on 28 July 2010 be quashed and that the proceedings be remitted to the District Court to be heard and determined according to law, with no order as to costs.
Orders
Orders of the court
(1) Order that the decision of the District Court of New South Wales made on 28 July 2010 be quashed and that the proceedings be remitted to the District Court to be heard and determined according to law.
(2) Make no order as to costs.
[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.]