DN v Secretary, Department of Communities and Justice [2023] NSWCA 321

DN v Secretary, Department of Communities and Justice [2023] NSWCA 321

The Children's Court lacked jurisdiction to make new orders allocating parental responsibility for children and carers who were living in the UK and where the children were neither present nor ordinarily living in New South Wales when the orders were made. Section 4 of the Care and Protection Act and s 12(2) of the Children's Court Act operate as localising provisions, and the legislation should not be construed as giving an inferior specialist court wider extra-territorial authority than the Supreme Court's parens patriae jurisdiction or as requiring the Minister or Secretary to exercise care and protection functions in a foreign country. The Court could, however, rescind the earlier...

Jurisdiction
Australia
Judgment Date
19 December 2023
Procedural Posture
Child Welfare Judicial Review Appeal / Application for Leave to Appeal From Equity Division Decision Dismissing Amended Summons for Judicial Review of Children's Court Orders
Outcome
Leave to appeal granted; appeal allowed; order of the Equity Division set aside; orders 2-5 made by the Children's Court on 16 June 2022 quashed.
Legal Topics
['aboriginal Children at Risk of Significant Harm' "children's Court Jurisdiction" 'parental Responsibility' 'children Living Overseas' 'territorial Operation of NSW Legislation' 'parens Patriae Jurisdiction' 'variation and Rescission of Care Orders' 'aboriginal Placement Principles']
['child Welfare' 'administrative Law' 'courts and Judges' 'statutory Interpretation' 'conflict of Laws'] ['aboriginal Children at Risk of Significant Harm' "children's Court Jurisdiction" 'parental Responsibility' 'children Living Overseas' 'territorial Operation of NSW Legislation' 'parens Patriae Jurisdiction' 'variation and Rescission of Care Orders' 'aboriginal Placement Principles']

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Procedural Posture

Child Welfare Judicial Review Appeal / Application for Leave to Appeal From Equity Division Decision Dismissing Amended Summons for Judicial Review of Children's Court Orders

Legal Issues

  1. 1 ["Whether the Children's Court had jurisdiction to make orders allocating parental responsibility for children who were living in the UK and were neither present nor ordinarily living in New South Wales when the orders were made." 'Whether carers not resident in New South Wales or Australia could be "another suitable person or persons" for the purposes of s 79(1) of the Children and Young Persons (Care and Protection) Act 1998 (NSW).' "Whether the Children's Court had jurisdiction and power to rescind an existing care order conferring parental responsibility on the Minister where the children were no longer in New South Wales." "Whether the Secretary's notice of contention could uphold the judgment on the basis that the children ordinarily lived in New South Wales when the carers' application was filed."]

Ratio Decidendi

The Children's Court lacked jurisdiction to make new orders allocating parental responsibility for children and carers who were living in the UK and where the children were neither present nor ordinarily living in New South Wales when the orders were made. Section 4 of the Care and Protection Act and s 12(2) of the Children's Court Act operate as localising provisions, and the legislation should not be construed as giving an inferior specialist court wider extra-territorial authority than the Supreme Court's parens patriae jurisdiction or as requiring the Minister or Secretary to exercise care and protection functions in a foreign country. The Court could, however, rescind the earlier...

Court Disposition

Leave to appeal granted; appeal allowed; order of the Equity Division set aside; orders 2-5 made by the Children's Court on 16 June 2022 quashed.

Orders

  • ["Grant the applicant leave to appeal from the order made in the Equity Division on 2 June 2023 dismissing the applicant's amended summons." 'Allow the appeal and set aside the order made in the Equity Division.' "Quash orders 2-5 made by the Children's Court on 16 June 2022."]