Monica Neville Barrister Sir James Martin Chambers Care Appeals Monica Neville Barrister Sir James Martin Chambers

Appeals: source of power Section 91(1): A party to proceedings who is dissatisfied with an order (other than an interim order)may, in accordance with the rules of the District Court appeal to the District Court against the order. Appeals against decisions of the Presidential Children’s Court are heard in the Supreme Court: s 22A, Children’s Court Act 1987 To note: Effectively, appeal as of right – unnecessary to identify error of law cf with new amendments – parent capacity orders – appeals limited to question of law – s 91I

Evidence on appeal: ss 91(2) & (3) An appeal is to be by way of a new hearing and fresh evidence or Evidence in addition to or in substitution for the evidence on which the order was made may be given on the appeal Without limiting (2), the District Court may, instead of taking fresh evidence, decide to admit the transcript and any exhibit.

Functions and discretions: s 91(4) The District Court has, for the purposes of hearing and determining an appeal, all the functions and discretions of the Children’s Court under Chapters 5 & 6. This is in addition to any functions and discretions conferred otherwise than by s 91(4) For ATSI children – the placement principles diverge in relation to adoption. Adoption is considered the last preference for ATSI children. Reading through the debate on the bill, it was acknowledged that adoption is not necessarily considered culturally appropriate in the Aboriginal community and so it is considered the last preference for ATSI children: s 10A(3)(e).

Remedies and effect of determination: ss 91(5) & (6) The District court may: Confirm; Vary; or Set aside the decision of the Children’s Court. The decision of the District Court is taken to be the decision of the Children’s Court and has effect accordingly. Drafting orders – set aside all orders and make new orders…. Depending on what the decision is. Appeals against leave refusals – should go back to the Children’s Court, however, District Court has, in the past, gone on to consider the substantive variation

An appeal does not stay the orders: s 91(7) An appeal does not affect the operation of the order appealed against or prevent the taking of action to implement that order. To stay orders – notice of motion Can vary contact orders by NOM Although the Department often delays or defers decisions in relation to permanent placement – not required to do so…..matter of practice.

Conduct of appeal proceedings: s 91(8) The provisions of Chapter 6 apply to and in respect of the hearing of an appeal: Non-adversarial: s 93(1); Conducted with as little formality and legal technicality as circumstance permits: s 93(2); Court not bound by the rules of evidence: s 93(3).

Beyond the Care Act: Uniform Civil Procedure Rules 2005 Division 6, Part 50 Defendants: r 50.18 The Director-General; The child (where aged 10 or older); Any person (not being the plaintiff or an officer of the Department) who is responsible for the child and can reasonably be located; Any person (not being the plaintiff or an officer of the Department) joined to the Children’s Court proceedings; Any person joined by the District Court as a defendant Practice – join the ILR and DLR to proceedings, although it should be the child where child is 10 or older

Beyond the Care Act: Uniform Civil Procedure Rules 2005 Joinder in the District Court: rr 6.24 & 6.25 If Court considers a person ought to have been joined as a party, or is a person whose joinder is necessary to the determination of all matters in dispute The Court may order that person be joined. A person is not to be joined as a plaintiff without his/her consent Joinder of person as plaintiff – requires consent of person and evidence of that consent. Discussion – appointment of GAL for mother – can’t join her as plaintiff until GAL issue sorted; and Application for joinder of neighbours by birth mother – no evidence of consent of neighbours.

Joinder or the right to be heard Re June (No 2) (2013) NSWSC 1111 Section 87: right of persons significantly impacted by orders to be heard on the matter of impact “Opportunity to be heard” is not the “opportunity to participate” and it does not follow that it includes the right to examine or cross-examine witnesses (at [186])

Joinder or the right to be heard QZ v Dept of Family and Community Services & HP & ILR & FC & DB [2013] NSWDC 235 Application was imprecise as to whether carers sought to be heard or joined. Practice developing – carers to be informed of appeal and views canvassed as to joinder/being heard

Going with the flow… Commenced by summons District Court orders transcript (practice note 5) Appearances Directions hearing/s & Notices of Motion Matter listed for hearing – usually, hearing will continue until concluded Summons: Identify: Whether appealing against decision in whole or in part Grounds for appeal – although dissatisfaction under the legislation, usual to set out the reasons for that dissatisfaction Relief sought to be articulated Appearances Generally no step to be taken without filing an appearance Directions/notices of motion First directions – sorting out parties etc. Directions for filing and service of evidence Directions for preparation of tender bundle Applications for stay of orders/variation to contact orders etc.