Re Tracey

Case [2011] NSWCA 43


Court of Appeal

New South Wales

Case Title: Re Tracey
Medium Neutral Citation: [2011] NSWCA 43
Hearing Date(s): 1 February 2011
Decision Date: 10 March 2011
Jurisdiction:
Before:

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).

Legislation Cited:

Child Welfare Act 1939;
Children and Young Persons (Care and Protection) Act 1998;
Convention Relating to the Status of Refugees (1951);
Family Law Act 1975 (C'th);
Family Law Reform Act 1995 (C'th);
Migration Act 1958 (C'th);
Supreme Court Act 1970;
United Nations Convention on the Rights of the Child (1989).

Cases Cited:

B and B; Family Law Reform Act 1995 (1997) 21 Fam LR 676;
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194;
Commissioner of Corrective Services v Government and Related Employees Appeal Tribunal (No 2) [2004] NSWCA 337;
Craig v South Australia (1995) 184 CLR 163;
Director General Department of Community Services v D [2007] NSWSC 762; (2007) 37 Fam LR 595;
Director-General, Department of Community Services: Re Thomas [2009] NSWSC 217; (2009) 41 Fam LR 220;
Director of Public Prosecutions v Sami El Mawas [2006] NSWCA 154; (2006) 66 NSWLR 93;
Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124

Continue reading Re Tracey

Sign in free to access the full text

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.]

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.