SNN v Department of Communities & Justice [2024] NSWDC 393

SNN v Department of Communities & Justice [2024] NSWDC 393

The Mother failed to satisfy the threshold requirement in s 90(2) because the changes relied upon, individually or cumulatively, did not demonstrate real and effective significant change in relevant circumstances since the care order. In particular, the Mother had not adequately answered the continuing concerns arising from Dr Simpson's assessment, had not demonstrated sufficient insight into the reasons for the Child's removal, and had not provided persuasive evidence of plans or capacity to meet the Child's needs if restored. Even if the threshold were met, the mandatory and additional considerations weighed against leave: the Child had lived with the current carers for almost all of...

Jurisdiction
Australia
Judgment Date
02 September 2024
Procedural Posture
Civil Care and Protection Appeal / Appeal to the District Court From the NSW Children's Court's Refusal of the Mother's Application Under S 90 of the Children and Young Persons (care and Protection) Act 1998 (nsw) for Leave to Rescind a Care Order
Outcome
The Mother's application for leave was refused and the summons was dismissed.
Legal Topics
['application Under S 90 to Rescind or Vary Care Order' 'significant Change in Relevant Circumstances' 'final Care Orders Allocating Parental Responsibility to the Minister' 'permanent Placement Principles' 'principle of Active Efforts' 'best Interests of the Child' 'arguable Case for Restoration' 'concurrent Adoption Proceedings']
['child Welfare' 'care and Protection' 'statutory Interpretation'] ['application Under S 90 to Rescind or Vary Care Order' 'significant Change in Relevant Circumstances' 'final Care Orders Allocating Parental Responsibility to the Minister' 'permanent Placement Principles' 'principle of Active Efforts' 'best Interests of the Child' 'arguable Case for Restoration' 'concurrent Adoption Proceedings']

Case Brief

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Procedural Posture

Civil Care and Protection Appeal / Appeal to the District Court From the NSW Children's Court's Refusal of the Mother's Application Under S 90 of the Children and Young Persons (care and Protection) Act 1998 (nsw) for Leave to Rescind a Care Order

Legal Issues

  1. 1 ['Whether there had been a significant change in any relevant circumstances since the care order was made on 4 May 2021.' 'Whether the mandatory and additional considerations in s 90(2B) and s 90(2C) supported granting leave.' 'Whether recent amendments inserting the principle of active efforts in s 9A and changing permanent placement principles in s 10A affected the approach to a s 90 leave application.' 'Whether the Mother had an arguable case or realistic possibility of restoration of the Child to her sole parental responsibility.' 'What significance, if any, should be given to the concurrent adoption proceedings in the Supreme Court.']

Ratio Decidendi

The Mother failed to satisfy the threshold requirement in s 90(2) because the changes relied upon, individually or cumulatively, did not demonstrate real and effective significant change in relevant circumstances since the care order. In particular, the Mother had not adequately answered the continuing concerns arising from Dr Simpson's assessment, had not demonstrated sufficient insight into the reasons for the Child's removal, and had not provided persuasive evidence of plans or capacity to meet the Child's needs if restored. Even if the threshold were met, the mandatory and additional considerations weighed against leave: the Child had lived with the current carers for almost all of...

Court Disposition

The Mother's application for leave was refused and the summons was dismissed.

Orders

  • ['The time for the applicant to commence this appeal is extended to 8 May 2024.' 'The Summons is dismissed.' "The order of the Children's Court of 18 January 2024 is confirmed."]