Re Jeremy (a pseudonym); DM v Secretary, Department of Family and Community Services [2017] NSWCA 220

Re Jeremy (a pseudonym); DM v Secretary, Department of Family and Community Services [2017] NSWCA 220

The District Court failed to separately and properly address whether there had been significant changes in any relevant circumstances (a precondition to granting leave under s 90(2)) and failed to show that it took into account all mandatory considerations outlined in s 90(2A). This failure amounts to error of law on the face of the record, justifying remittal.

Parties
First Applicant: DM; Second Applicant: MM; First Respondent: Secretary, Department of Family and Community Services; Second Respondent: Independent Legal Representative for Jeremy and Nikki; Third Respondent: District Court of New South Wales
Jurisdiction
Australia
Judgment Date
01 September 2017
Procedural Posture
Appeal Judicial Review / Court of Appeal Judgment
Outcome
Appeal allowed; orders of District Court set aside; matter remitted for rehearing.
Legal Topics
Supervisory Jurisdiction, Care and Protection of Children, Application for Leave to Vary Care Orders, Error of Law – Failure to Apply Statutory Provisions, Significant Change in Circumstances
Administrative Law Child Welfare Supervisory Jurisdiction Care and Protection of Children Application for Leave to Vary Care Orders Error of Law – Failure to Apply Statutory Provisions Significant Change in Circumstances

Case Brief

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Parties

DM

First Applicant

MM

Second Applicant

Secretary, Department of Family and Community Services

First Respondent

Independent Legal Representative for Jeremy and Nikki

Second Respondent

District Court of New South Wales

Third Respondent

Procedural Posture

Appeal Judicial Review / Court of Appeal Judgment

Legal Issues

  1. 1 Whether the District Court erred in law in failing to apply provisions of the Children and Young Persons (Care and Protection) Act 1998 (NSW), s 90
  2. 2 Whether the District Court's judgment showed a failure to address mandatory statutory considerations
  3. 3 Whether relief would be futile or unnecessary

Ratio Decidendi

The District Court failed to separately and properly address whether there had been significant changes in any relevant circumstances (a precondition to granting leave under s 90(2)) and failed to show that it took into account all mandatory considerations outlined in s 90(2A). This failure amounts to error of law on the face of the record, justifying remittal.

Court Disposition

Appeal allowed; orders of District Court set aside; matter remitted for rehearing.

Orders

  • Set aside the orders made by the District Court on 11 July 2016 dismissing the applicants' appeal and confirming the orders of the Children's Court.
  • Remit to the District Court the appeal brought by the applicants from the Children's Court, to be determined according to law.