CLN 2012

CLN 4 - December 2012

Supreme Court decisions

Re Cameron [2012] NSWSC 1453

Catchwords: JUDICIAL REVIEW - certiorari - construction of s 44 Children and Young Persons (Care and Protection) Act 1998 - application of s 69 (3) and (4) Supreme Court Act 1970 - whether the magistrate considered s 70A Children and Young Persons (Care and Protection) Act 1998.

R v HEK [2012] NSWSC 1364

Catchwords: CRIMINAL LAW - sentence - conviction by jury - affray - maliciously damage property by fire - juvenile offender - dealt with according to law - discharge of loaded firearms as a feature of the affray - objectively a particularly serious example of affray - whether a victim impact statement should be received by the Court.

R v HER v SE [2012] NSWSC 1024

Catchwords: CRIMINAL LAW - sentence - affray - juvenile offenders - dealt with according to law - discharge of loaded firearms as a feature of the affray - objectively a particularly serious example of affray - whether a victim impact statement should be received by the Court. 

Court of Appeal

Director-General, Family and Community Services re Felicity [2012] NSWCA 272

Catchwords: PROCEDURE - Court of Appeal - care proceedings in respect of child - orders made by President of Children's Court and in Equity Division of the Supreme Court - purported appeals against such orders - whether leave to appeal needed re Supreme Court orders - whether appeal against order made by President of Children's Court lies to Court of Appeal or Equity Division - all appeals struck out as incompetent.

Court of Criminal Appeal

KG v R [2012] NSWCCA 10

Catchwords: CRIMINAL LAW - appeal - sentencing - assault with intent to rob whilst in company, with wounding - whether manifestly excessive - whether inappropriate reference to standard non-parole period - whether proper consideration given to principles in Children (Criminal Proceedings) Act 1987 (NSW), s 6 - parity between co-offenders.

JB v R [2012] NSWCCA 196

Catchwords: CRIMINAL LAW - appeal - leave to appeal against sentence - whether error in having regard to the standard non-parole period applicable to adult offenders as a reference point in sentencing - error conceded - whether there was error in assessment of the objective seriousness of the offence - error not established - impact of the consideration of the standard non-parole period - s 6(3) of the Criminal Appeal Act 1912 - no lesser sentence warranted.

AM v R [2012] NSWCCA 203

Catchwords: CRIMINAL LAW - appeal - sentence - causing grievous bodily harm with intent to cause grievous bodily harm - plea of guilty - juvenile offender - unprovoked attack upon innocent stranger - victim punched repeatedly to the face - prone victim then kicked and stomped on the head - victim sustains traumatic brain injury - permanent cognitive impairment - applicant had no prior criminal history - troubled and dysfunctional background - head sentence of seven years with three year non-parole period - whether head sentence manifestly excessive - objective gravity of offence - relevance of youth, rehabilitation, specific and general deterrence - head sentence not manifestly excessive - appeal dismissed.

Family Court decisions

Pavel & Pavel and Ors [2012] FamCA 117

Catchwords: FAMILY LAW - CHILDREN – Interim orders – With whom children should live – Where Department of Family and Community Services removed two children one aged 22 days and the other aged 7 years from mother’s care – Where the children have different fathers – Where the father of the infant child has two other children to another woman – Where there have been allegations of sexual abuse by the father of the infant child of one of his other children – Where Department of Family and Community Services formed the view that the mother would not act protectively towards her children – Where the Court is satisfied that the mother will act protectively – Ordered that the infant be returned to the mother and she given sole parental responsibility – Where there has already been significant disruption to the older child’s living arrangements – Ordered that the older child to remain living with his father on an interim basis.

Children's Court decisions

FaCS v Davidson and Simpson Children [2012] NSWChC 10

Catchwords: CHILDREN - CARE AND PROTECTION - children under parental responsibility of Minister - matter referred to Care Circle - dispute over legal representation of three younger children - Legal Aid reassigned funding for the three children to the Aboriginal Legal Service - ss 5, 6, 9, 98, 99, 99A, 99B, 99C, 99D Care Act - Aboriginality.

Department of Family and Community Services (NSW) re Ingrid [2012] NSWChC 19

Catchwords: CHILDREN - CARE AND PROTECTION - Aboriginal child in need of care and protection - no realistic possibility of restoration to the parents - permanency planning - placement with non-Aboriginal persons - whether the circumstances specified in s 78A(4) of the Care Act must be established before an order can be made for sole parental responsibility in favour of those non-Aboriginal persons.

Department of Family and Human Services (NSW) re Amanda & Troy [2012] NSWChC 13

Catchwords: CHILDREN - CARE AND PROTECTION - children in need of care and protection - whether there is a realistic possibility of restoration to the parents - permanency planning and contact .

Department of Family and Human Services (NSW) re Day [2012] NSWChC 14

Catchwords: CHILDREN - CARE AND PROTECTION - children in need of care and protection - permanency planning and contact.​

Police v DG [2012] NSWChC 18

Catchwords: CHILDREN - CRIMINAL LAW - Withdrawal by Prosecutor of matters dealt with summarily - No requirement to seek leave of the Court - Issuing Certificate of Dismissal - Costs.

Papers

"Recent cases relating to Juvenile Justice"

By His Honour Judge Marien SC - former President of the Children's Court of NSW, paper presented at the 2012 Children's Legal Service Conference.

"Is there a power to restrict access to place conditions upon access to a clinician’s report created pursuant to sections 53 and 54 of the Act"

By Robert J McLachlan, solicitor.

"Finding of need of care and protection"

By Robert J McLachlan, solicitor.

"The Importance of Clinical Evidence in Care Proceedings"

An abridged version of a paper presented to Clinicians of the Children's Court Clinic by Judge Johnstone, President of the Children's Court of NSW, on 26 October 2012.

CLN 3 - June 2012

Supreme Court decisions

Re Greta [2012] NSWSC 294

Catchwords: CHILDREN - JUDICIAL REVIEW - CARE AND PROTECTION - certiorari - whether Children's Court failed to consider properly an application for leave to apply for rescission of a care order - whether open to determine whether significant changes in any relevant circumstances - whether failure to consider plans for the children - whether error on face of record.

Re Bailey & Blake (No 2) [2012] NSWSC 394

Catchwords: ADMINISTRATIVE LAW - CARE AND PROTECTION - order in the nature of certiorari quashing the decision of a Children's Court Magistrate - alleged error in admitting expert report independently obtained by party without consent to assessment by all parties with parental responsibility. CHILDREN - care proceedings - whether expert report independently obtained by a party is admissible - whether consent of all persons with parental responsibility necessary - paramountcy of the interests of the children the subject of the proceedings - need to balance principle that probative evidence should be admitted against principle that evidence should not be admitted in contravention of the law - appropriate to consider the requirement that Children's Court proceedings be conducted with as little formality and technicality as possible.

Re Felicity [2012] NSWSC 494

Catchwords: CHILDREN - CONSTITUTIONAL LAW - CARE AND PROTECTION - powers to allocate parental responsibility - whether referral of matters to Commonwealth limits power of Children's Court to make orders - no effect of referral on operation of State laws - creation of additional power in Commonwealth Parliament - inconsistencies subject to s 109 of the Constitution - statutory framework - interaction between State and Commonwealth laws - whether inconsistencies between State and Commonwealth powers to allocate parental responsibility - no effect on the operation of State child welfare laws - statutory mechanism for dealing with inconsistencies - Family Law Act 1975 (Cth) s 69ZK.

Re Kerry (No 2) [2012] NSWCA 127

Catchwords: CARE AND PROTECTION - Family law and child welfare - child welfare under State legislation - proceedings relating to care and protection - competing applications for allocation of parental responsibility determined by Children's Court - orders varied on appeal to District Court - JUDICIAL REVIEW application for order in the nature of certiorari in respect of District Court decision - whether jurisdictional error - whether error on the face of the record - whether relevance of principles in United Nations Convention on the Rights of the Child wrongly rejected - whether failure to comply with s 9(2)(c) of Children and Young Persons (Care and Protection) Act 1998 - whether s 79(3) implemented - whether failure to comply with s 13 and 78A provisions with respect to Aboriginality.

Markou v R [2012] NSWCCA 64

Catchwords: CRIME - appeal - conviction - assault occasioning actual bodily harm in company - whether evidence of actual bodily harm - definition of 'bodily harm' - whether explanation necessary in judge-alone trial - whether offence committed 'in company' - evidence of common purpose - whether self-defence open on facts.

JM v R [2012] NSWCCA 83

Catchwords: CRIME - appeal - sentencing - inflicting grievous bodily harm with intent - affray - plea of guilty - parity principle - relevant differences - different degrees of culpability - different circumstances - youth - children - power to order young offender who has attained 18 years to serve sentence as a juvenile offender - extent of power - where offence is serious children's indictable offence - order available where special circumstances exist - vulnerability due to illness or disability - whether disability available on evidence - whether open to sentencing judge to take into account limitations on power to order sentence be served as juvenile offender - whether manifestly excessive - Children (Criminal Proceedings) Act 1987 (NSW) ss 3, 6, 17, 18, 19, 19(1), 19(2), 19(3), 19(4), 19(4A) - Crimes (Sentencing Procedure) Act 1999 (NSW) Pt 4 Div 1A, ss 12, 44, 54D(3) - Crimes Act 1900 (NSW) ss 33, 35, 93C(1) - Criminal Appeal Act 1912 (NSW) s 6(3).

Edwards v DPP [2012] NSWSC 105

Catchwords: CRIME - application of s 32 of the Mental Health (Forensic Provisions) Act 1990 - availability of treatment in mental health facility essential pre-condition to enlivening discretion under s 32(1)(b) - this was a deliberate omission and resulted in one of preconditions not being satisfied - no issue of principle.

District Court decisions

MXS v Department of Family and Community Services (NSW) [2012] NSWDC 63

Catchwords: CHILDREN - Care Appeal - plaintiffs seeking restoration of two children to their care - whether children in need of care and protection - whether there is a realistic prospect of restoration - if not, with whom should each child be placed.

PP v Director General of Department of Human Services; Re Julie [2012] NSWDC 16

Catchwords: CHILDREN - CARE APPEAL - young child - purpose of contact - hostility between carers and natural parent - need for supervised contact- costs of supervised contact- limitation on future proceedings- referral to registrar

Children's Court decisions

FaCS v the Harris Children [2012] NSWChC 9

Catchwords: CHILDREN - CARE AND PROTECTION - allocation of parental responsibility to Minister - application by father - wishes of the children - possibility of adverse consequences if father were to relapse - current long-term placement meets all the needs of the children - contact - sections 79, 82, 86 and 90 Care Act.

Department of Family and Community Services v Veronica [2012] NSWChC 5

Catchwords: CHILDREN - CARE AND PROTECTION - child in need of care and protection - no realistic possibility of restoration - permanency planning - court to determine various aspects of parental responsibility including contact and Aboriginal identity and cultural awareness.

Re Bethany [2012] NSWChC 4

Catchwords: CHILDREN - CARE AND PROTECTION - intention of department to place the child with the father - application by father for parental responsibility - application by foster carers for parental responsibility - strong attachment to carers - potential for child to suffer psychological harm if removed from carers - application to rescind orders - best interests of child - contact orders.

In the matter of Mr Donaghy (Costs) [2012] NSWChC 11

Catchwords: CHILDREN - CARE AND PROTECTION - costs - power of Children's Court to order costs against legal practitioner - non-attendance at court for hearing - no application to re-list matter - Practice Note 5 - case management - cogent and compelling reasons - duties of legal practitioner - s 88 Care Act.

Director of Family and Community Services v Jack [2012] NSWChC 7

Catchwords: CHILDREN - CARE AND PROTECTION - parental responsibility - realistic possibility - undertakings by father - criminal history of father - history of drug use by parents - child witness to violence - indications of neglect - likelihood that basic needs not being met - likely to suffer harm in the domestic environment - long-term placement with Aboriginal carer proposed - ss 9 and 79 of Care Act.

Police v JM [2011] NSWChC 1 

Catchwords: CRIME - YOUNG PERSON - sentence - young person - serious and multiple offences - offences committed while on parole - young person almost 18 and a repeat offender - emphasis given to rehabilitation rather than general deterrence and retribution should be moderated - "wholly inappropriate" to deal with young person other than by imposing control order.

CLN 2 - May 2012

Children's Court decisions

Re Anna [2012] NSWChC 1

Catchwords: CHILDREN - CARE AND PROTECTION - protection of confidentiality in ADR - clause 11 of Regulation - paramountcy principle - functions and powers of the President - powers of Children's Magistrate to review decision of Children's Registrar - jurisdiction of the Children's Court.

In the Matter of D, R, J and W [2011] NSWChC 3

Catchwords: CHILDREN - CARE AND PROTECTION - contact - UNICEF Convention on the Rights of the Child - Contact Guidelines.

FaCS v Kestle [2012] NSWChC 2

Catchwords: CHILDREN - CARE AND PROTECTION - application for s90 leave - relevance of arguable case for leave - consideration of Statement of Wishes by children - consideration of paramountcy principle in leave applications - discretion to restrict grant of leave to particular issue or issues - s94(4) and granting of adjournments.

FaCS v Borg [2011] NSWChC 4

Catchwords: CHILDREN - CARE AND PROTECTION - realistic possibility of restoration - at the time of the hearing - parenting capacity - risk of harm - totality of the act - paramount considerations.

FaCS v Amy Robinson-Peters [2012] NSWChC 3

Catchwords: CHILDREN - CARE AND PROTECTION - application for costs under s88 - extent of Children's Court jurisdiction - exceptional circumstances - doomed to fail - gross incompetence of solicitor amounts to exceptional circumstances - s88 does not extend to costs against non-party.

CLN 1 - March 2012

Supreme Court decisions

Re Bailey and Blake [2011] NSWSC 1390

Catchwords: CHILDREN - CARE AND PROTECTION - application for declaratory relief, an order in the nature of certiorari and an order for remittal of the proceedings to the Children's Court - appeal against Children's Court magistrate's decision to allow into evidence a parenting assessment report privately commissioned by the mother - whether the report contains an assessment or expert opinion of the children the subject of care proceedings and whether, if it did, it infringed Chapter 5 Division 6 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) - issue of lack of consent by persons with parental responsibility for the children not a basis asserted in the Children's Court for rejection of the report but consideration of its significance.

Re Linda [2011] NSWSC 1596

Catchwords: FAMILY LAW AND CHILD WELFARE - claim by mother invoking parens patriae and supervisory jurisdiction of Supreme Court after Director-General of Community Services assumed care responsibility of child - proceedings commenced on same day as care proceedings in the Children's Court - error in Children's Court proceedings conceded - exceptional circumstances established such as to warrant Supreme Court not following usual approach of declining to exercise jurisdiction pending determination of care proceedings - likelihood of multiple further proceedings if mother's claim not heard in the Supreme Court - request for Supreme Court to cross-vest jurisdiction under Family Law Act 1975 (Cth) - jurisdiction cross-vested - parenting orders made.

Lawson v Dunlevy [2012] NSWSC 48

Catchwords: CRIMINAL LAW - Bail - Whether bail condition imposing requirement to submit to a breath test when requested by a police officer unlawful - Does not comply with legislative purpose - Does not promote effective law enforcement - Deterring breach of bail does not fulfil purpose of protection and welfare of community of specially affected person - Consequences of non-compliance with bail condition do not contemplate deterrence conditions - "Breath test" term vague and meaningless - More onerous than required - Unlawful.

Court of Criminal Appeal decisions

KG v R [2012] NSWCCA 10

Catchwords: CRIMINAL LAW - appeal - sentencing - assault with intent to rob whilst in company, with wounding - whether manifestly excessive - whether inappropriate reference to standard non-parole period - whether proper consideration given to principles in Children (Criminal Proceedings) Act 1987, s 6 - parity between co-offenders.

JB v Regina [2012] NSWCCA 12

Catchwords: CRIMINAL LAW - appeal - conviction - admissions - s 90 Evidence Act 1995 - whether the trial judge should have admitted admissions made by an accused to a community support person - misdirection in presentation of defence case to jury - whether self-defence should have been put to the jury - wrong statutory ratio of parole to non-parole period - s 44 Crimes (Sentencing Procedure) Act 1999 - whether the sentence was manifestly excessive - whether trial judge considered all mitigating factors - s 21A(3) Crimes (Sentencing Procedure) Act 1999.

Papers

'Cross-over kids’ – childhood and adolescent abuse and neglect and juvenile offending

By His Honour Judge Marien SC - President of the Children's Court of NSW, paper presented at the National Juvenile Justice Summit in Melbourne March 2012.