Director-General, Family and Community Services re Felicity [2012] NSWCA 272

Director-General, Family and Community Services re Felicity [2012] NSWCA 272

The amended notice of appeal was incompetent because no appeal lay as of right to the Court of Appeal from any of the challenged orders: leave was required for the appeals from the Supreme Court orders and had neither been sought nor granted, and the appeal from the President of the Children's Court lay to the Supreme Court in the Equity Division rather than to the Court of Appeal.

Jurisdiction
Australia
Judgment Date
27 August 2012
Procedural Posture
Interlocutory Applications / Notice of Motion by the Director General to Strike Out the Amended Notice of Appeal as Incompetent
Outcome
Amended notice of appeal struck out in its entirety; the named appellant ordered to pay the Director-General's costs of the notice of motion.
Legal Topics
['care Proceedings' 'appeals From Supreme Court Orders' 'leave to Appeal' "appeals From Children's Court Orders" 'costs Orders' 'strike Out for Incompetence']
['civil Procedure' 'appellate Jurisdiction' 'child Protection' 'family Law'] ['care Proceedings' 'appeals From Supreme Court Orders' 'leave to Appeal' "appeals From Children's Court Orders" 'costs Orders' 'strike Out for Incompetence']

Case Brief

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Procedural Posture

Interlocutory Applications / Notice of Motion by the Director General to Strike Out the Amended Notice of Appeal as Incompetent

Legal Issues

  1. 1 ['Whether the mother required leave to appeal from the orders made by White J in the Supreme Court in a Division.' 'Whether the mother required leave to appeal from the costs order made by Slattery J and whether the required procedure had been followed.' "Whether an appeal from a costs order made by the President of the Children's Court lay to the Court of Appeal." 'Whether the amended notice of appeal should be struck out as incompetent.']

Ratio Decidendi

The amended notice of appeal was incompetent because no appeal lay as of right to the Court of Appeal from any of the challenged orders: leave was required for the appeals from the Supreme Court orders and had neither been sought nor granted, and the appeal from the President of the Children's Court lay to the Supreme Court in the Equity Division rather than to the Court of Appeal.

Court Disposition

Amended notice of appeal struck out in its entirety; the named appellant ordered to pay the Director-General's costs of the notice of motion.

Orders

  • ['Order that the amended notice of appeal filed on 12 June 2012 be struck out in its entirety.' 'Order that the person named as appellant in the amended notice of appeal filed on 12 June 2012 pay the costs of the Director-General, Family and Community Services of the notice of motion determined by me today.']