Aunt DU v The Secretary, Department of Family and Community Services [2015] NSWDC 392

Aunt DU v The Secretary, Department of Family and Community Services [2015] NSWDC 392

The appeal was governed by the Care Act as in force when filed because lodgment conferred a substantive accrued right to have the appeal heard. MO was a child in need of care and protection and there was no realistic possibility of restoration to her mother, but permanency planning had not been adequately addressed. Aunt DU was a suitable kinship carer; MO's cultural and familial needs were significant; the current foster placement had materially changed; and the risk of unsupervised maternal access if MO were placed with Aunt DU was low and manageable by undertakings and orders. Placement with Aunt DU was the least intrusive intervention and any other order would be insufficient to meet...

Jurisdiction
Australia
Judgment Date
02 December 2015
Procedural Posture
Care and Protection Appeal Under S 91 of the Children and Young Persons (care and Protection) Act 1998 / Appeal to the District Court of New South Wales From Final Orders of the Children's Court Made on 4 September 2014
Outcome
The appeal is allowed.
Legal Topics
['care and Protection Orders' 'permanency Planning' 'kinship Care' 'cultural Identity of Child' 'realistic Possibility of Restoration' 'effect of Statutory Amendments on Accrued Appeal Rights']
['child Protection' 'family Law' 'statutory Interpretation'] ['care and Protection Orders' 'permanency Planning' 'kinship Care' 'cultural Identity of Child' 'realistic Possibility of Restoration' 'effect of Statutory Amendments on Accrued Appeal Rights']

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Procedural Posture

Care and Protection Appeal Under S 91 of the Children and Young Persons (care and Protection) Act 1998 / Appeal to the District Court of New South Wales From Final Orders of the Children's Court Made on 4 September 2014

Legal Issues

  1. 1 ['Whether amendments to the Children and Young Persons (Care and Protection) Act 1998 commencing on 29 October 2014 affected an appeal filed before commencement.' 'Whether MO was in need of care and protection.' 'Whether there was a realistic possibility of restoration of MO to her mother.' 'Whether permanency planning had been adequately addressed.' "Whether long term placement with MO's maternal aunt, Aunt DU, was the least intrusive intervention consistent with MO's safety, welfare and wellbeing."]

Ratio Decidendi

The appeal was governed by the Care Act as in force when filed because lodgment conferred a substantive accrued right to have the appeal heard. MO was a child in need of care and protection and there was no realistic possibility of restoration to her mother, but permanency planning had not been adequately addressed. Aunt DU was a suitable kinship carer; MO's cultural and familial needs were significant; the current foster placement had materially changed; and the risk of unsupervised maternal access if MO were placed with Aunt DU was low and manageable by undertakings and orders. Placement with Aunt DU was the least intrusive intervention and any other order would be insufficient to meet...

Court Disposition

The appeal is allowed.

Orders

  • ['The appeal is allowed.' 'The Secretary is to prepare a permanency plan for the long term placement of MO with her maternal aunt, Aunt DU.']