LM v Secretary, Department of Communities and Justice [2021] NSWDC 34

LM v Secretary, Department of Communities and Justice [2021] NSWDC 34

The appeal is allowed in respect of A because there has been a significant change in relevant circumstances since the final order; A is younger and has not consistently or reasonedly opposed contact with the mother; positive contact could benefit A and is not shown to be harmful. The discretion to grant leave is appropriately exercised in A’s favour, particularly when balanced with paramountcy of A's welfare, the factors of his age, and potential for establishing a beneficial relationship. In contrast, the appeal is dismissed in respect of B due to her firm, consistent opposition to contact, age, and likely futility and detrimental effect of further litigation—these factors weigh against...

Parties
Plaintiff: LM; First Defendant: Secretary, Department of Communities & Justice; Second Defendant: A by his guardian ad litem (Stephen Stuart); Third Defendant: B
Jurisdiction
Australia
Judgment Date
24 February 2021
Procedural Posture
Civil / Appeal From Children's Court (application for Leave to Seek Contact Orders)
Outcome
Appeal allowed in respect of A; dismissed in respect of B.
Legal Topics
Care and Protection of Children, Contact Orders, Appeal From Children's Court, Leave to Apply for Contact Orders, Views of Children, Discretion in Leave Applications, Aboriginal and Torres Strait Islander Cultural Considerations
Child Welfare Family Law Care and Protection of Children Contact Orders Appeal From Children's Court Leave to Apply for Contact Orders Views of Children Discretion in Leave Applications +1 more

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Parties

LM

Plaintiff

Secretary, Department of Communities & Justice

First Defendant

A by his guardian ad litem (Stephen Stuart)

Second Defendant

B

Third Defendant

Procedural Posture

Civil / Appeal From Children's Court (application for Leave to Seek Contact Orders)

Legal Issues

  1. 1 Whether leave should be granted to the mother to apply for contact orders in relation to her two youngest children under s 86 of the Children and Young Persons (Care and Protection) Act 1998 (NSW)
  2. 2 Whether there has been a significant change in any relevant circumstances since a final order was made
  3. 3 What constitutes a 'final order' for the purposes of s 86(1B) of the Act

Ratio Decidendi

The appeal is allowed in respect of A because there has been a significant change in relevant circumstances since the final order; A is younger and has not consistently or reasonedly opposed contact with the mother; positive contact could benefit A and is not shown to be harmful. The discretion to grant leave is appropriately exercised in A’s favour, particularly when balanced with paramountcy of A's welfare, the factors of his age, and potential for establishing a beneficial relationship. In contrast, the appeal is dismissed in respect of B due to her firm, consistent opposition to contact, age, and likely futility and detrimental effect of further litigation—these factors weigh against...

Court Disposition

Appeal allowed in respect of A; dismissed in respect of B.

Orders

  • The appeal is allowed in relation to A.
  • The appeal is dismissed in relation to B.