C v NSW Department of Communities and Justice [2021] NSWDC 479

C v NSW Department of Communities and Justice [2021] NSWDC 479

Although Ms C established significant changes in relevant circumstances since the 2013 final care orders, the mandatory considerations and the paramount concern for the children's safety, welfare and well-being weighed against leave. The children were settled, happy and progressing well in a stable current placement, had expressed views against returning to live with Ms C, and had therapeutic and psychological vulnerabilities. Having regard to Ms C's prior conduct, the breakdown of the former placement, concerns about differential treatment of A, and the risk of psychological harm if the current arrangements were disrupted, Ms C did not have an arguable case for the substantive variation...

Jurisdiction
Australia
Judgment Date
01 September 2021
Procedural Posture
Civil Appeal From the Children's Court Concerning Leave to Apply to Vary or Rescind Care Orders / District Court Appeal by Way of New Hearing From Children's Court Refusal of Leave
Outcome
Appeal dismissed; Children's Court order confirmed.
Legal Topics
['care and Protection Orders' "appeal From Children's Court to District Court" 'leave to Apply to Vary or Rescind Care Orders' 'parental Responsibility' 'out of Home Care' 'best Interests and Safety, Welfare and Well Being of Children']
['child Welfare' 'care and Protection' 'civil Procedure'] ['care and Protection Orders' "appeal From Children's Court to District Court" 'leave to Apply to Vary or Rescind Care Orders' 'parental Responsibility' 'out of Home Care' 'best Interests and Safety, Welfare and Well Being of Children']

Case Brief

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Procedural Posture

Civil Appeal From the Children's Court Concerning Leave to Apply to Vary or Rescind Care Orders / District Court Appeal by Way of New Hearing From Children's Court Refusal of Leave

Legal Issues

  1. 1 ['Whether there had been a significant change in any relevant circumstances since the final care orders were made or last varied for the purposes of s 90(2) of the Children and Young Persons (Care and Protection) Act 1998 (NSW).' 'Whether the mandatory primary and additional considerations in s 90(2B) and s 90(2C) supported granting leave.' 'Whether Ms C had an arguable case for variation or rescission of the care orders and allocation of parental responsibility to her.' 'Whether varying the present care arrangements would create an unacceptable risk of psychological harm to the children.' 'Whether the District Court should exercise its discretion to grant leave on the appeal.']

Ratio Decidendi

Although Ms C established significant changes in relevant circumstances since the 2013 final care orders, the mandatory considerations and the paramount concern for the children's safety, welfare and well-being weighed against leave. The children were settled, happy and progressing well in a stable current placement, had expressed views against returning to live with Ms C, and had therapeutic and psychological vulnerabilities. Having regard to Ms C's prior conduct, the breakdown of the former placement, concerns about differential treatment of A, and the risk of psychological harm if the current arrangements were disrupted, Ms C did not have an arguable case for the substantive variation...

Court Disposition

Appeal dismissed; Children's Court order confirmed.

Orders

  • ['The appeal is dismissed.' "The order of the Children's Court made on 10 November 2020 is confirmed."]