Re Kerry (No 2) [2012] NSWCA 127

Re Kerry (No 2) [2012] NSWCA 127

The District Court did not fall into error in failing to apply UNCROC or the Aboriginal placement principles. The primary judge's reasoning gave full effect to the welfare and protection principles in the Care Act, gave particular consideration to s 9(2)(c) as required, recognized the Aboriginality of the child and potential carers, and properly exercised jurisdiction in allocating parental responsibility to the Minister. No relevant jurisdictional error or error on the face of the record was established, and the application for certiorari must be dismissed.

Parties
First Plaintiff: Grandmother; Second Plaintiff: Mother; Second Defendant: Director-General of the Department of Family and Community Services; Third Defendant: District Court of New South Wales; Fourth Defendant: Aunt; Fifth Defendant: Father; Sixth Defendant: Child
Jurisdiction
Australia
Judgment Date
09 May 2012
Procedural Posture
Judicial Review / Final Judgment; Interlocutory Orders for Costs
Outcome
claims for prerogative relief dismissed; costs reserved; further directions and remitter issued
Legal Topics
Care and Protection of Children, Allocation of Parental Responsibility, Judicial Review, Aboriginality in Child Placement, United Nations Convention on the Rights of the Child, Jurisdictional Error
Family Law Child Welfare Administrative Law Care and Protection of Children Allocation of Parental Responsibility Judicial Review Aboriginality in Child Placement United Nations Convention on the Rights of the Child +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 14 Party arguments 2
Sign in to unlock

Parties

Grandmother

First Plaintiff

Mother

Second Plaintiff

Director-General of the Department of Family and Community Services

Second Defendant

District Court of New South Wales

Third Defendant

Aunt

Fourth Defendant

Father

Fifth Defendant

Child

Sixth Defendant

Procedural Posture

Judicial Review / Final Judgment; Interlocutory Orders for Costs

Legal Issues

  1. 1 Whether the District Court failed to take into account or apply provisions in the United Nations Convention on the Rights of the Child (UNCROC)
  2. 2 Whether the District Court failed to comply with s 9(2)(c) of the Children and Young Persons (Care and Protection) Act 1998
  3. 3 Whether there was failure to comply with s 13 and s 78A provisions regarding Aboriginality

Ratio Decidendi

The District Court did not fall into error in failing to apply UNCROC or the Aboriginal placement principles. The primary judge's reasoning gave full effect to the welfare and protection principles in the Care Act, gave particular consideration to s 9(2)(c) as required, recognized the Aboriginality of the child and potential carers, and properly exercised jurisdiction in allocating parental responsibility to the Minister. No relevant jurisdictional error or error on the face of the record was established, and the application for certiorari must be dismissed.

Court Disposition

claims for prerogative relief dismissed; costs reserved; further directions and remitter issued

Orders

  • The claims in prayers 1 and 2 of the further amended summons are dismissed.
  • Any party seeking an order for costs to serve submissions within fourteen days.