Department of Communities and Justice (DCJ) and May, June and Roy [2023] NSWChC 15

Department of Communities and Justice (DCJ) and May, June and Roy [2023] NSWChC 15

The interim order made on 21 September 2022 was valid because a s 90 leave application was a procedural step in aid of a substantive care application and the Court had power to make an interim order before leave was granted. Although the expired original orders could not be rescinded or varied under s 90(7), the filed s 90 application validly sought care orders, including a guardianship order, and the Court had jurisdiction and power under ss 79(1)(a) and 79A(2). On the evidence, the Mother caused the harm leading to June’s hospitalisation, had not identified the cause of harm, accepted responsibility, or addressed the factors that led to harm; the Children were strongly attached to the...

Jurisdiction
Australia
Judgment Date
01 December 2023
Procedural Posture
Care and Protection / Section 90 Application; Final Determination of Parental Responsibility and Guardianship
Outcome
Guardianship order made
Legal Topics
['section 90 Rescission and Variation of Care Orders' 'interim Care Orders' 'jurisdiction After Expiry of Original Orders' 'realistic Possibility of Restoration' 'guardianship Orders' 'best Interests of the Child' 'least Intrusive Intervention' 'aboriginal and Torres Strait Islander Child and Young Person Placement Principles' 'non Accidental Injury']
['care and Protection' "children's Law"] ['section 90 Rescission and Variation of Care Orders' 'interim Care Orders' 'jurisdiction After Expiry of Original Orders' 'realistic Possibility of Restoration' 'guardianship Orders' 'best Interests of the Child' 'least Intrusive Intervention' 'aboriginal and Torres Strait Islander Child and Young Person Placement Principles' 'non Accidental Injury']

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Procedural Posture

Care and Protection / Section 90 Application; Final Determination of Parental Responsibility and Guardianship

Legal Issues

  1. 1 ['Whether the interim order made on 21 September 2022 before leave was granted under s 90 was valid.' 'Whether the Court had jurisdiction to deal with the s 90 application after the original orders had expired.' 'Whether there was a realistic possibility of restoration of the Children to the Mother or Father.' 'Whether parental responsibility should be allocated to the Mother to the exclusion of the Father or a guardianship order should be made to the Maternal Grandmother.' 'Whether a guardianship order was in the best interests of the Children.']

Ratio Decidendi

The interim order made on 21 September 2022 was valid because a s 90 leave application was a procedural step in aid of a substantive care application and the Court had power to make an interim order before leave was granted. Although the expired original orders could not be rescinded or varied under s 90(7), the filed s 90 application validly sought care orders, including a guardianship order, and the Court had jurisdiction and power under ss 79(1)(a) and 79A(2). On the evidence, the Mother caused the harm leading to June’s hospitalisation, had not identified the cause of harm, accepted responsibility, or addressed the factors that led to harm; the Children were strongly attached to the...

Court Disposition

Guardianship order made

Orders

  • ['The s 90A order made on 18 November 2020 is rescinded.' 'Pursuant to s 83(7), permanency planning for the Children has been appropriately and adequately addressed.' 'Pursuant to s 79A(2), a guardianship order is made allocating to the Maternal Grandmother all aspects of parental responsibility for the Children...