MC & Anor v Department of Human Services & ors [2011] NSWSC 374

MC & Anor v Department of Human Services & ors [2011] NSWSC 374

Because the appeal was a new hearing and leave to proceed out of time was not disputed, and because after considering the relevant s 90 matters and the paramount consideration in s 9(1) the Court was satisfied that the care plans, Terms of Settlement, undertakings and Transition Plan provided for the safety, welfare and well-being of each child, the Court granted leave and made the agreed orders.

Jurisdiction
Australia
Judgment Date
19 April 2011
Procedural Posture
Appeal Under S 91 of the Children and Young Persons (care and Protection) Act 1998 From a Decision of the Presidential Children's Court Dismissing an Application to Rescind or Discharge a Care Order / Hearing of Out of Time Appeal After Agreement and Terms of Settlement
Outcome
Leave to bring the proceedings out of time was granted and agreed orders were made or noted in accordance with the Terms of Settlement, undertakings and Transition Plan.
Legal Topics
["appeal From Presidential Children's Court" 'leave to Appeal Out of Time' 'rescission or Variation of Care Order' 'parental Responsibility' 'relative Care' 'transition Plan' 'aboriginal Children']
['care and Protection' 'child Welfare' 'equity'] ["appeal From Presidential Children's Court" 'leave to Appeal Out of Time' 'rescission or Variation of Care Order' 'parental Responsibility' 'relative Care' 'transition Plan' 'aboriginal Children']

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Procedural Posture

Appeal Under S 91 of the Children and Young Persons (care and Protection) Act 1998 From a Decision of the Presidential Children's Court Dismissing an Application to Rescind or Discharge a Care Order / Hearing of Out of Time Appeal After Agreement and Terms of Settlement

Legal Issues

  1. 1 ['Whether leave should be granted to bring the appeal out of time.' "Whether the Supreme Court had jurisdiction to determine the appeal from the Presidential Children's Court." 'Whether the appeal was by way of a new hearing and could receive fresh or substituted evidence.' 'Whether the agreed orders and transition plan should be made consistently with the safety, welfare and well-being of the children.' 'Whether the Court should rescind or vary care arrangements involving parental responsibility allocated to the Minister.']

Ratio Decidendi

Because the appeal was a new hearing and leave to proceed out of time was not disputed, and because after considering the relevant s 90 matters and the paramount consideration in s 9(1) the Court was satisfied that the care plans, Terms of Settlement, undertakings and Transition Plan provided for the safety, welfare and well-being of each child, the Court granted leave and made the agreed orders.

Court Disposition

Leave to bring the proceedings out of time was granted and agreed orders were made or noted in accordance with the Terms of Settlement, undertakings and Transition Plan.

Orders

  • ['Orders that leave to the Plaintiffs to bring these proceedings out of time be granted.' 'Orders in terms of Paragraphs 1, 2, 3, 5, 6, 7, 8, 10 and 11 of Terms of Settlement, dated 19 April 2011, signed by the legal representatives for the Plaintiffs, the second Defendants, and the independent legal representative...