NSW Caselaw
New South Wales Court of Appeal
CITATION: RE JAYDEN [2007] NSWCA 35
HEARING DATE(S): 21/02/07
JUDGMENT DATE: 2 March 2007
JUDGMENT OF: Beazley JA at 1; Hodgson JA at 2; Ipp JA at 3
DECISION: (a) The appeal is upheld.; (b) The orders made by Simpson J dismissing the appellant's summons and notice of motion are set aside and in lieu thereof an order is made setting aside the order of the Children's Court made on 8 December 2006 whereby the orders made on 13 October 2006 for interim contact were discharged.; (c) The Court notes, for the purposes of clarity, that orders 3 and 4 of the orders made by the Children's Court on 13 October 2006 remain in force. ; (d) The Minister and the Director-General are to pay the appellant's costs of appeal.
CATCHWORDS: CHILDREN – care and responsibility – review of interim care responsibility orders – interim order conferring parental responsibility of children on Minister for Community Services – serious issue to be tried as to whether final order should be made – Director-General of the Department of Community Services obtaining discharge of contact order to enable Minister to send children to New Zealand prior to final order – whether this amounts to an abuse of process – ss 69, 70, 70A and 72 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) considered - LEGAL PRACTITIONERS – parties to proceedings – whether legal practitioners appointed by the Children's Court of New South Wales pursuant to s 99 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) to represent children the subject of proceedings should be named as parties to proceedings in the Supreme Court
LEGISLATION CITED: Children and Young Persons (Care and Protection) Act 1998 (NSW)
Foukkare v Angreb Pty Ltd [2006] NSWCA 335 Grovit v Doctor [1997] 1 WLR 640 Jayden, Re [2006] NSWSC 1428 CASES CITED: M v M (1988) 166 CLR 59 Reynolds v Reynolds [1977] 2 NSWLR 295 Rogers v The Queen (1994) 181 CLR 251 State Bank of New South Wales Limited v Stenhouse Limited (1997) Aus Torts Reports 81-423 Walton v Gardiner (1993) 177 CLR 378
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