DN v Secretary, Department of Communities and Justice [2023] NSWCA 321

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: DN v Secretary, Department of Communities and Justice [2023] NSWCA 321 Hearing dates: 30 October 2023 Date of orders: 19 December 2023 Decision date: 19 December 2023 Before: Mitchelmore JA at [1]; Stern JA at [2]; Basten AJA at [3] Decision: (1) Grant the applicant leave to appeal from the order made in the Equity Division on 2 June 2023 dismissing the applicant's amended summons. (2) Allow the appeal and set aside the order made in the Equity Division. (3) Quash orders 2-5 made by the Children's Court on 16 June 2022. Catchwords: CHILD WELFARE – Aboriginal children at risk of significant harm – parental responsibility conferred on Minister – children placed in care of non-Aboriginal carers – carers' temporary visas expired – Minister consented to temporary removal of children to the UK – application by mother for parental responsibility – orders conferring parental responsibility on carers in the UK COURTS and JUDGES – Children's Court – jurisdiction – child not present nor ordinarily living in New South Wales – parental responsibility conferred on Minister – child living with carers in the UK – order conferring parental responsibility on Minister rescinded – whether Court can make order conferring parental responsibility on carers – whether jurisdiction of inferior court more extensive than Supreme Court's parens patriae jurisdiction STATUTORY INTERPRETATION – jurisdiction-conferring provisions – not to be read down by implied limitations – application – specialist courts – inferior courts – judicial institutional arrangements – legislative history – comity of nations – conflict of laws rules giving effect to foreign law Legislation Cited: Australia Acts 1986 (UK) and (Cth), s 2 Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 3, 4, 13, Ch 3, Pt 2, ss 24, 25, 27, 27A, 28, 34, Ch 5, ss 43, 44, 45, 61, 71, 71A, 72, 73, 79, 90, 91, Ch 14A, s 231A, Pt 2, Div 2, s 231G, Pt 3, ss 231L, 231M, Pts 4, 6, s 247 Children's Court Act 1987 (NSW), ss 4, 6, 7, 12 Constitution Act 1902 (NSW), s 5 Family Law Act 1975 (Cth), Pt VII, s 69E Interpretation Act 1987 (NSW), ss 12, 43 Justices Act 1902 (NSW), ss 5, 6, 7 Local Court Act 2007 (NSW), ss 7, 11 Supreme Court Act 1970 (NSW), s 69 Cases Cited: Chignola v Chignola (1974) 9 SASR 479 DRJ v Commissioner of Victims Rights (No 2) (2020) 103 NSWLR 692; [2020] NSWCA 242 Fish v Solution 6 Holdings Ltd (2006) 225 CLR 180; [2006] HCA 22 Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83; 379 ALR 248 Insight Vacations Pty Ltd v Young (2011) 243 CLR 149; [2011] HCA 16 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36 Kay's Leasing Corporation Pty Ltd v Fletcher (1964) 116 CLR 124; [1964] HCA 79 Kelly v Panayioutou [1980] 1 NSWLR 15 McM v C (No 1) [1980] 1 NSWLR 1 O'Connor v Healey (1967) 69 SR (NSW) 111 Owners of the Ship "Shin Kobe Maru" v Empire Shipping Company Inc (1994) 181 CLR 404; [1994] HCA 5 Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; [1938] HCA 7 Pearce v Florenca (1976) 135 CLR 507; [1976] HCA 26 Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 207 CLR 72; [2001] HCA 49 Wanganui-Rangitikei Electric Power Board v Australian Mutual Provident Society (1934) 50 CLR 581; [1934] HCA 3 Texts Cited: M Davies, AS Bell, PLG Brereton, M Douglas, Nygh's Conflict of Laws in Australia (10th ed, LexisNexis, 2020) M Leeming, Authority to Decide: The Law of Jurisdiction in Australia (The Federation Press, 2nd ed, 2020) Review of the Children (Care and Protection) Act 1987: Recommendations for Law Reform Category: Principal judgment Parties: DN (Applicant/Appellant) Secretary, Department of Communities and Justice (First Respondent) CT (Second Respondent) Mr L (Third Respondent) Ms M (Fourth Respondent) Children's Court of New South Wales (Fifth Respondent) Representation: Counsel: M Green SC / B J Dean / E Lambert (Applicant/Appellant) D Kell SC / J Harris / C Raad (First Respondent)