In re a Child [2022] NSWSC 671

In re a Child [2022] NSWSC 671

Leave was refused because the Court was not persuaded that the aunt had the genuine concern required for the discretion to be exercised in her favour, and in any event granting leave would not serve the child's welfare and well-being. The aunt's position was substantially aligned with the father, her delay in seeking participation was unexplained, she did not need party status either to be considered later as a possible carer or to be called as a witness, and adding another participant would increase complexity and stress for the child without any discernible benefit.

Jurisdiction
Australia
Judgment Date
24 May 2022
Procedural Posture
Appeal Under S 91 of the Children and Young Persons (care and Protection) Act 1998 (nsw) Against Final Care Orders; Motion by Paternal Aunt Under S 98(3) for Leave to Appear in Person and Under S 79 for Parental Responsibility Orders / Procedural Ruling on Paternal Aunt's Application for Leave to Appear in Person in the Proceedings
Outcome
Leave to the applicant to appear in person in the proceedings refused; applicant's motion filed 8 April 2022 dismissed.
Legal Topics
['children and Young Persons (care and Protection) Act 1998 (nsw) S 98(3)' 'leave to Appear in Care Proceedings' 'genuine Concern for Safety, Welfare and Well Being of Child' 'paramountcy of Child Safety, Welfare and Well Being' 'expeditious Conduct of Care Proceedings']
['family Law and Child Welfare' 'care and Protection'] ['children and Young Persons (care and Protection) Act 1998 (nsw) S 98(3)' 'leave to Appear in Care Proceedings' 'genuine Concern for Safety, Welfare and Well Being of Child' 'paramountcy of Child Safety, Welfare and Well Being' 'expeditious Conduct of Care Proceedings']

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 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal Under S 91 of the Children and Young Persons (care and Protection) Act 1998 (nsw) Against Final Care Orders; Motion by Paternal Aunt Under S 98(3) for Leave to Appear in Person and Under S 79 for Parental Responsibility Orders / Procedural Ruling on Paternal Aunt's Application for Leave to Appear in Person in the Proceedings

Legal Issues

  1. 1 ['Whether the paternal aunt should be granted leave under s 98(3) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) to appear in person, be legally represented or be represented by an agent in the proceedings.' 'Whether the Court should form the opinion that the aunt has a genuine concern for the safety, welfare and well-being of the child.' 'Whether granting leave would serve the safety, welfare and well-being of the child and be consistent with the need for expeditious resolution of care proceedings.']

Ratio Decidendi

Leave was refused because the Court was not persuaded that the aunt had the genuine concern required for the discretion to be exercised in her favour, and in any event granting leave would not serve the child's welfare and well-being. The aunt's position was substantially aligned with the father, her delay in seeking participation was unexplained, she did not need party status either to be considered later as a possible carer or to be called as a witness, and adding another participant would increase complexity and stress for the child without any discernible benefit.

Court Disposition

Leave to the applicant to appear in person in the proceedings refused; applicant's motion filed 8 April 2022 dismissed.

Orders

  • ["The applicant's motion filed 8 April 2022 is dismissed."]