A v Department of Family and Community Services [No.2]. [2015] NSWDC 148

A v Department of Family and Community Services [No.2]. [2015] NSWDC 148

The priority given to care appeals and the potential delay of six weeks to six months in Legal Aid Review Committee appeals constituted special circumstances for the purposes of s 57 of the Legal Aid Commission Act, so no stay arose and the mother's requested adjournment was refused. Because the mother had not provided a satisfactory explanation for appealing against consent orders or for not complying with the Children's Court's directions concerning evidence for the care plan, the appeal would proceed only on the unchallenged material before the Children's Court, with leave for the mother to file updating material only. The mother had sought an indulgence from the Court, making it...

Jurisdiction
Australia
Judgment Date
14 July 2015
Procedural Posture
Care Appeal From the Children's Court / Directions Hearing; Application to Adjourn Proceedings Pending Decision by Legal Aid Review Committee; Directions as to Evidence and Preparation for Appeal
Outcome
Application to adjourn refused; no stay pending the Legal Aid Review Committee appeal; the summons was not dismissed for being filed out of time; evidence on the appeal limited to unchallenged material before the Children's Court and updating material; costs ordered against the appellant in favour of the third...
Legal Topics
['care Appeals' 'stay of Proceedings' 'special Circumstances' 'adjournment' 'fresh Evidence on Appeal' 'updating Material' 'costs']
['care and Protection' 'civil Procedure' 'legal Aid'] ['care Appeals' 'stay of Proceedings' 'special Circumstances' 'adjournment' 'fresh Evidence on Appeal' 'updating Material' 'costs']

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 1 Authorities cited 2 Party arguments 1 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Care Appeal From the Children's Court / Directions Hearing; Application to Adjourn Proceedings Pending Decision by Legal Aid Review Committee; Directions as to Evidence and Preparation for Appeal

Legal Issues

  1. 1 ["Whether the mother's appeal to the Legal Aid Review Committee operated as a stay of the care appeal proceedings under s 57 of the Legal Aid Commission Act." 'Whether special circumstances existed so that no stay would come into force pending determination of the legal aid appeal.' "Whether the mother's application to adjourn the directions hearing should be granted." 'What evidence the mother should be permitted to rely on in the care appeal.' 'Whether costs should be ordered against the mother in favour of the third respondent and the independent legal representative.']

Ratio Decidendi

The priority given to care appeals and the potential delay of six weeks to six months in Legal Aid Review Committee appeals constituted special circumstances for the purposes of s 57 of the Legal Aid Commission Act, so no stay arose and the mother's requested adjournment was refused. Because the mother had not provided a satisfactory explanation for appealing against consent orders or for not complying with the Children's Court's directions concerning evidence for the care plan, the appeal would proceed only on the unchallenged material before the Children's Court, with leave for the mother to file updating material only. The mother had sought an indulgence from the Court, making it...

Court Disposition

Application to adjourn refused; no stay pending the Legal Aid Review Committee appeal; the summons was not dismissed for being filed out of time; evidence on the appeal limited to unchallenged material before the Children's Court and updating material; costs ordered against the appellant in favour of the third...

Orders

  • ['The application to adjourn the directions hearing was refused.' "The appeal will be heard only on the basis of the material which was unchallenged before the Children's Court, with leave to the mother to file updating material only in support of her appeal." "The first respondent is to prepare a tender bundle of...