CLN 2021

CLN 1 – June 2021

NSW Supreme Court

R v Connor Fontaine (a pseudonym) [2021] NSWSC 177

CRIMINAL LAW – bail – conditions – ten-year-old boy – curfew – application for variation by deletion of curfew condition – where no evidence of offences committed at night – purpose of bail conditions – limitations on same – social engineering – paternalism – condition deleted

NSW Court of Appeal

CXZ v Children’s Guardian [2020] NSWCA 338

APPEALS — Application for leave to appeal — principles to be applied in determining whether a person poses a risk to the safety of children under s 18 Child Protection (Working with Children) Act 2012 (NSW) – application of principles stated in M v M – whether allegations are to be assessed by three-step process – whether lingering doubt to count against applicant – whether Tribunal failed to consider accumulated weight of allegations – held, issue of principle raised – leave to appeal granted


Lacey (a pseudonym) v Attorney General for New South Wales [2021] NSWCA 27

COURTS – jurisdiction – criminal jurisdiction of Children’s Court – where young person sought to have charges heard by a female magistrate and to have males excluded from court for certain evidence and from viewing that evidence – powers of the Children’s Court to deal with criminal charges against a young person

Polsen v Harrison [2021] NSWCA 23

COURTS AND JUDGES – bias – application for recusal – application declined – judge commented on role of plaintiff’s expert at conclave – comments made during preliminary discussion as to amended pleading – whether a fair-minded lay observer might think judge might have pre-judged credibility of witness

APPEALS – jurisdiction – appeal from “judgment or order” – refusal of a recusal application – application for disqualification made orally without notice of motion – whether refusal was a “judgment or order

NSW Court of Criminal Appeal

Singh v R [2020] NSWCCA 353

CRIME – appeals – application for leave to appeal against sentence – offences of dishonestly obtaining a financial advantage by deception – where applicant was aged between 23 and 26 years of age at time of offending – whether sentencing judge should have had regard to applicant’s youth and asserted immaturity – boundaries of youth and adult responsibility – whether offender acted as an “adult” – whether sentence was manifestly excessive

NSW District Court

The Secretary, Department of Communities and Justice v B [2020] NSWDC 736

CHILD WELFARE – care and protection of children – care and protection orders – appeal from Children’s Court to District Court by the plaintiff Secretary – whether the need for care and protection of the child has been established – general principles applicable - alleged sexual assault of other child – alleged perpetrator not clear – alleged drug and mental health issues – alleged lack of insight

Y (a pseudonym) v The Secretary, Communities and Justice (No 4) [2021] NSWDC 81

CHILD CARE APPEAL – application by the Secretary, Department of Communities and Justice to set aside appellant’s subpoenas that seek production of documents – no legitimate forensic purpose identified – subpoenas oppressive and too wide – fishing – subpoenas set aside


Re. A Costs Appellant Carer (a pseudonym) v The Secretary, Department of Communities and Justice [2021] NSWDC 197

CHILD CARE APPEAL ON COSTS – appeal from decision of Children’s Court refusing appellant’s application for costs where the Secretary, Department of Communities and Justice failed to meet the establishment criteria in proceedings in the Children’s Court – whether exceptional circumstances have been shown by the costs appellant: s 88 of the Children and Young Persons (Care and Protection) Act 1998

QLD Supreme Court

R v Lovett (a pseudonym) [2021] QCA 46

CRIMINAL LAW – APPEAL AND NEW TRIAL -APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was a juvenile and convicted of armed robbery in company – where the applicant was sentenced to a period of detention of 15 months with a conviction recorded – where the applicant refused to accept responsibility for the offence and had a relevant lengthy criminal history – whether the recording of a conviction rendered the sentence manifestly excessive

Papers 

Andrew McGrath, Alison Gerard and Emma Colvin, ‘Care-experienced children and the criminal justice system’ (2020) 600 Trends and Issues in Crime and Criminal Justice (Research Paper) The Australian Institute of Criminology, 10.   

Judge Peter Johnstone, ‘Perspectives of the President’ (Conference Paper, NSW Child Protection Legal Conference, 4 February 2021). (PDF , 153.4 KB)

CLN 2 – December 2021 

NSW Supreme Court 

GR v The Department of Communities & Justice [2021] NSWSC 1081

CHILD WELFARE — Care proceedings — Care order — Appeal from care order of Children’s Court — Application to set side Final Care Orders — Whether Children’s Court had jurisdiction to make Final Care Orders — Best interests of the child — Whether child should be restored to the mother’s care — Whether factors leading to assumption had been addressed


CM v Secretary, Department of Communities and Justice [2021] NSWSC 1442

CHILD WELFARE – Parental responsibility – Order allocating parental responsibility – where the Children’s Court made orders in June 2021 allocating parental responsibility for the child to the Minister until the child turns 18 – where the applicant mother has appealed that decision in the District Court of New South Wales pursuant to Children and Young Persons (Care and Protection) Act 1998 (“Care Act”), s 91 – where a final hearing was set for November 2021 before the District Court, and Olsson SC DCJ appointed a Guardian ad litem for the applicant mother pursuant to Care Act, ss 98(2A) and 101 – where the applicant mother has sought to challenge that decision in the Supreme Court’s parens patriae jurisdiction.

CHILD WELFARE – Jurisdiction – Supreme Court of New South Wales – Parens patriae – where the Court has informed the applicant mother the appropriate forum to challenge Olsson SC DCJ’s appointment of a Guardian ad litem would be the Court of Appeal – where the applicant mother expressed she did not want the case referred to the Court of Appeal – whether there are exceptional circumstances warranting the Court’s exercise of its parens patriae jurisdiction.

CHILD WELFARE –  Care proceedings – Guardian ad litem – whether the Children’s Court may appoint a Guardian ad litem for an applicant parent pursuant to Care Act, ss 98(2A) and 101 where that parent is self-represented and does not wish to be legally represented – observations on the construction of Care Act, ss 98(2A) and 101.


JH v Secretary, Department of Communities and Justice [2021] NSWSC 1539

JURISDICTION – supervisory jurisdiction – challenge to interlocutory establishment decision of Children’s Magistrate – care proceedings – application for summary dismissal of application for review – whether merits review in disguise – whether reasonable cause of action for judicial review pleaded – case for review clearly untenable


Burton v Director of Public Prosecutions (NSW) [2021] NSWSC 1230

CONSTITUTIONAL LAW — Commonwealth Constitution — implied freedom of political communication — where impugned law prohibits publication of names of children and young persons connected with care proceedings — publication defined broadly by statute — application of structured test for validity — slight burden on political communication made out — whether burden justified — characterisation of impugned law by reference to statutory objects — legitimate protective function made out — high likelihood of irreparable damage absent impugned law — inherently sensitive subject matter — burden consequently found to be justified —— relevance of impugned law being an offence of strict liability — relevance of criminal penalty for contravention — quantitative analysis of persons likely to be affected by impugned law — severance not possible — offence-creating provision held to be constitutionally valid

NSW Court of Appeal 

GR v Secretary, Department of Communities and Justice; Secretary, Department of Communities and Justice v BW (a pseudonym) [2021] NSWCA 157

CHILD WELFARE – care proceedings – statutory construction – interpretation – where guardian ad litem appointed for a child and young person in separate proceedings – where court found child and young person was incapable of giving proper instructions to a legal representative – whether appointment of guardian ad litem mandatory or discretionary – Children and Young Persons (Care and Protection) Act 1998 (NSW) – interaction between ss 98(2A) and 100 of the Act

CHILD WELFARE – care proceedings – where guardian ad litem appointed for a young person by Supreme Court – whether young person incapable of giving proper instructions to a legal representative


GR v DCJ [2021] NSWCA 267

CIVIL PROCEDURE - subpoenas - application to set aside - where production of material unduly burdensome and would not facilitate appeal

CHILD WELFARE - care proceedings - interlocutory application - whether orders should be made allowing child to live with mother or allowing daily contact - whether tutor should be appointed

GR v Secretary, Department of Communities & Justice; Minister for Families, Communities & Disability Services [2021] NSWCA 301

CHILD WELFARE – Interlocutory Proceedings – s 14 of the Civil Procedure Act 2005 (NSW) – UCPR 17.7(1) - Whether a Tutor or an Independent Legal Representative should be appointed for a young person involved in care and protection proceedings– whether leave should be granted to issue a subpoena – costs


Secretary, Department of Communities and Justice v KH [2021] NSWCA 308

APPEALS – procedure – stay pending appeal – District Court decision on appeal in child care and protection proceedings – District Court found realistic possibility of restoration of child to mother and ordered preparation of amended care plan – Secretary seeking judicial review of District Court decision in Court of Appeal – motion by Secretary to stay District Court orders pending determination of judicial review application – stay granted

NSW Court of Criminal Appeal 

Hoskins v R [2021] NSWCCA 169

CRIME – Appeals – Appeal against sentence – Reckless wounding (two counts) – Affray – Aggravated break and enter and commit serious indictable offence – Whether sentencing judge gave appropriate consideration to offender’s background of social disadvantage – Bugmy v The Queen (2013) 249 CLR 571 – Appeal allowed

SENTENCING – Subjective considerations on sentence – Social disadvantage and hardship – Excellent upbringing with non-biological parents until aged thirteen – Subsequent discovery of and return to biological family – Entry into environment where criminal conduct normalised – Commencement of alcohol and drug abuse – History of offending associated with alcohol abuse – Childhood and adolescent years equally formative – Reduced moral culpability notwithstanding passage of time and intervening custodial sentences

CRIME – Appeals – Appeal against sentence – Extension of time in which to appeal – Whether sufficient explanation for delay – Time required to receive transcripts, advice from counsel, Legal Aid approval, and submissions – Whether arguable case on appeal – Extension granted

NSW District Court 

AB & JB v The Secretary & Ors [2021] NSWDC 626

CHILD CARE APPEAL – appeal from the order of the Children’s Court refusing joinder of maternal grandparents in child care proceedings – refusal order set aside – leave granted for joinder

Y v The Secretary, Department of Communities and Justice (No 7) [2021] NSWDC 477

COSTS – child care appeal – application by the Secretary, Department of Communities and Justice for a compensatory specified gross sum costs order against the appellant pursuant to s 88 of the Children and Young Persons (Care and Protection) Act 1998 and s 98 of the Civil Procedure Act 2005 – existence of exceptional circumstances – specified gross sum costs assessed at $200,000


EL v R [2021] NSWDC 585

APPEAL – conviction appeal – robbery armed with offensive weapon – dishonestly obtain financial advantage by deception – doli incapax – whether presumption of doli incapax rebutted by prosecution.


SafeWork NSW v SNAP Programs Limited and State of New South Wales (Department of Communities and Justice) [2021] NSWDC 259 

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – death of worker – death of child in care

SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – appropriate penalty

SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse - plea of guilty - assistance to law enforcement authorities

NSW Children's Court

Department of Communities and Justice (DCJ) and Cara (a pseudonym) [2021] NSWChC 3

Care and protection – prohibition orders – s 90A – categories of persons against whom orders can be made – history of amendments - prohibition order to prevent child residing with mother – impact on Minister’s interim order for parental responsibility – consideration of Re Josie [2004] NSWSC 642

Secretary of the Department of Communities and Justice v Rod Rivers [2020] NSWChC 9

YOUTH PAROLE – Children’s Court Parole jurisdiction – whether revocation of parole should be confirmed - rescission of revocation of parole – reinstatement of the original order for parole - proper method of calculating the extension of a detention order where there has been a breach of parole and the young person has been at large (“Street Time”)


Secretary of the Department of Communities and Justice v Julian Minster [2020] NSWChC 10

YOUTH PAROLE – Children’s Court Parole jurisdiction – implied power rescission of a parole revocation

Papers 

Her Honour Magistrate Sue Duncombe, ‘The trauma informed approach of the NSW Youth Koori Court’ (2020) 32(3) Judicial Officers’ Bulletin, 21.   (PDF , 480.6 KB)

This article has been published on the Children’s Court’s website with permission from Her Honour Children’s Magistrate Sue Duncombe and the Judicial Commission of New South Wales.