CLN 2003

CLN 1 - January 2003

Children's Court decisions

In the matter of Timothy - Mitchell CM

Commencement of Supervision Order deferred to the expiration of an order allocating parental responsibility to the Minister.

In the matter of Jordan, Joshua and Michelle - Zdenkowski CM

The Court does not require the availability of a permanent out-of-home placement in order to make a long-term order.

In the matter of May and Ben - Crawford CM

Unacceptable risk, binding effect of Family Court findings, conflict of expert opinion evidence-whether court in finding children to be in need of care if bound by ground in the application-relevant date when continuing situation-implications of s.72 -meaning of "sexually abused" in ground (c)-meaning of "domestic environment in which he or she is living" in ground (e).

Legislation

Summary of the Young Offenders Amendment Act 2002.

Update about The Community Services Legislation Amendment Act 2002.

Papers

The Children’s Court Clinic

A paper by Greg Moore, Barrister

CLN 2 - February 2003

Children's Court decisions

In the matter of Bianca - Mitchell CM

The Department to pay fares and accommodation for parents on contact visits pursuant to section 15 of the Children’s Court Act 1987.

Court of Appeal decisions

Re Tyrone [2002] NSWCA 414

Issue as to the true construction of s74 of the Children and Young Persons (Care and Protection) Act 1998 not decided as the issue in these proceedings had become academic.

Papers

The Unrepresented Party: What duty does the Court owe to assist in the presentation of their case?

A paper by Robert McLachlan, solicitor.

CLN 3 - March 2003

Children's Court decisions

In the matter of ‘Pamela’ - Schurr CM

Department of Community Services - Party status in care proceedings - s 98(3) of the Children and Young Persons (Care and Protection) Act 1998 - The Department of Community Services application to revoke the party status of Anglicare.

Practice Directions

Certificates under s128 of the Evidence Act 1995 .

Procedures for Revocation of Community Service Orders in the Children’s Court.

Papers

‘Assessment Orders and the Children’s Court Clinic - Conduct and Controversy’

A paper by Deborah de Fina, Senior Solicitor, Legal Aid Commission

CLN 4 - April 2003

Children’s Court decisions

In the matter of Jordan, Joshua and Michelle (No 2) – Zdenkowski CM

Section 90 applications are not proceedings inter partes but can be opposed – contact arrangements constitute relevant circumstances within s 90(2) however in this case there was in fact no significant change in relevant circumstance.

In the matter of Tanya – Mulroney CM

Issue estoppel does not, strictly speaking, apply to this application for a care order.

Supreme Court decisions

Re: David and Ewen [2003] NSWSC 279 - Campbell J

The exercise of the Supreme Courts parens patriae jurisdiction- s 247 of the Children and Young Persons (Care and Protection) Act 1998 - the attitude of the Supreme Court in an appeal from a discretionary judgment.

Case management

An excerpt from the English case of Re G & others (Children) (Care Proceedings: wasted costs)

[1999] 4 All ER 371.

Papers

Establishing permanency for children - the issues of contact between children in permanent foster care and their birth families’

A paper by Barnardos staff

CLN 5 - June 2003

Children's Court decisions

In the matter of Pamela (No 2) - Schurr CM

The use of a pseudonym to replace the name of a person referred to in the course of the evidence in care proceedings, that person not being a child or young person.

In the matter of Sasha - Zdenkowski CM

Formal non-compliance with the filing times of an application pursuant to s45 of the Children and Young Persons (Care and Protection) Act 1998 does not necessarily render the application invalid.

Supreme Court decisions

HA & SB v The Director of Public Prosecutions [2003] NSWSC 347

A finding of guilt in and the imposition of a penalty under s 33(1) of the Children (Criminal Proceedings) Act 1987 amounts to a conviction, and the Children’s Court in those circumstances has power to impose a disqualification under the traffic legislation.

Papers

‘Representation of Children in Care Proceedings - A Brief Overview’

A paper by Robert McLachlan, solicitor.

CLN 6 - August 2003

Court of Criminal Appeal decisions

R v CVH [2003] NSWCCA 237

Section 25 of the Children (Criminal Proceedings) Act 1987 is a mandatory provision and requires a Juvenile Justice Report to be prepared.

Children's Court decisions

In the matter of Ben and John – Mitchell CM

The operation of section 90 of the Children and Young Persons (Care and Protection) Act 1998.

In the matter of Calvin – Mitchell CM

The meaning of ‘review’ in section 82(2) of the Children and Young Persons (Care and Protection) Act 1998.

CLN 7 - September 2003

Children’s Court decisions

Police v Jennifer and Julie – Dive SCM

Neither s43 nor s234 of the Children and Young Persons (Care and Protection) Act 1998 could be relied on by the Police in this case to make their actions lawful.

In the matter of Pamela (No 3) – Schurr CM

The Court rejected tender of part of a document containing an interview of a five year old child purporting to set out the child’s wishes as it could not be satisfied that the child had an understanding of the nature of the questions being asked.

In the matter of Pamela (No 4) – Schurr CM

Where evidence of a child’s wishes has already been led by other parties there is no enforceable duty of the separate representative to lead additional evidence of the child’s wishes if the separate representative believes that it is not in the interests of the child to do so.

In the matter of Pamela (No 5) - Schurr CM

The court rejected the application for a further Children’s Court Clinic report sought so that there would be a clear expression of the child’s view of the rescission application. The court held that there was already evidence of the child’s wishes and that the application would force the child to become directly involved in the conflict in the court proceedings

CLN 8 - November 2003

Children's Court decisions

In the matter of Simon and Patricia – Mulroney CM

The provisions of s82(2) permit a complete change in both the nature and the duration of an existing order.

Supreme Court decisions

Minister for Community Services and Anor v The Children’s Court & Ors [2003] NSWSC 863 – Michael Grove J

In this the matter of ‘George’ it was held that s 15 of the Children’s Court Act 1987 does not provide a source of power for making an order that the Director-General pay the costs of travel and accommodation of the parents.

Papers

The Threshold Test – Limited concessions by parents that a child is in need of care – Implications of a finding being made on some only of the grounds alleged in the care application’

A paper by John Crawford, Children’s Magistrate

CLN 9 - November 2003

Children’s Court decisions

In the matter of Jackson–Mitchell CM

The court has power to deal to finality with different aspects of parenting at different times – the meaning of the term “the subject of care proceedings’ in s 86.

In the matter of Matthias – Mitchell CM

Whether documents that may cause a child over ten distress should be disclosed to the child or his legal representative; whether the court should appoint a guardian ad litem for the child

Papers

‘Cross-examination in Care Proceedings – Does the Rule in Browne v. Dunne apply in Care Proceedings?’

A paper by Children’s Magistrate Schurr.

CLN 10 - December 2003

Court of Criminal Appeal decisions

Regina v JTB [2003] NSWCCA 295

Whether a witness aged 8 years could give ‘evidence’ without being sworn and enquiries as to her understanding.

Papers

Formulating applications for an assessment order - Comment from the Children’s Court Clinic.

Employment Checks – The Implications of Apprehended Violence Orders against Children – A paper by Children’s Magistrate John Crawford.