Re Tracey [2011] NSWCA 43

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Re Tracey [2011] NSWCA 43 Hearing dates: 1 February 2011 Decision date: 10 March 2011 Before: Spigelman CJ at [1], Beazley JA at [50], Giles JA at [51] Decision: (1) Order that the decision of the District Court of New South Wales made on 28 July 2010 be quashed and that the proceedings be remitted to the District Court to be heard and determined according to law. (2) Make no order as to costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: CHILDREN AND YOUNG PERSONS - Children and Young Persons (Care and Protection Act) 1998 (NSW) - child under parental responsibility of Minister - application by mother for parental responsibility - existing care plan with two carers but one had died - application of principle of least intrusive intervention in s 9(2)(c) - confined to when necessary to take action to protect child from harm - does not apply where question is whether existing care arrangements are to be displaced - consideration of care plan required by s 80 - care plan that is considered must be relevant to the circumstances - need for revised care plan - (per Spigelman CJ and Beazley JA) treaty obligations under Convention on the Rights of the Child capable of being a relevant consideration to the exercise of discretion - held error of law (application of principle of least intrusive intervention) and jurisdictional error (failure to consider revised care plan and rejection of regard to Convention on the Rights of the Child). Legislation Cited: Child Welfare Act 1939; Children and Young Persons (Care and Protection) Act 1998; Convention Relating to the Status of Refugees (1951); Family Law Act 1975 (C'th); Family Law Reform Act 1995 (C'th); Migration Act 1958 (C'th); Supreme Court Act 1970; United Nations Convention on the Rights of the Child (1989). Cases Cited: B and B; Family Law Reform Act 1995 (1997) 21 Fam LR 676; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194; Commissioner of Corrective Services v Government and Related Employees Appeal Tribunal (No 2) [2004] NSWCA 337; Craig v South Australia (1995) 184 CLR 163; Director General Department of Community Services v D [2007] NSWSC 762; (2007) 37 Fam LR 595; Director-General, Department of Community Services: Re Thomas [2009] NSWSC 217; (2009) 41 Fam LR 220; Director of Public Prosecutions v Sami El Mawas [2006] NSWCA 154; (2006) 66 NSWLR 93; Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124; George v Children's Court of New South Wales [2003] NSWCA 389; (2003) 59 NSWLR 232; Gunaleela v Minister for Immigration and Ethnic Affairs ([1987] FCA 277; (1987) 15 FCR 543; Heshmati v Minister for Immigration [1991] FCA 387; (1991) 31 FRC 123; Le v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 875; McKellar v Smith (1982) 2 NSWLR 950; Minister for Foreign Affairs and Trade v Magno [1992] FCA 566; (1992) 37 FCR 298; Perpetual Trustee v Khoshaba [2006] NSWCA 41; Production Spray Painting & Panelbeating Pty Ltd v Newnham (1991) 27 NSWLR 644; R v Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23; Re Louise and Belinda [2009] NSWSC 534. Re Minister for Immigration Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1; Tomasevic v Travaglini [2007] 17 VSC 337; (2007) 17 VR 100. Category: Principal judgment Parties: KL - Appellant District Court of New South Wales - First Respondent Department of Human Services - Second Respondent CH - Third Respondent Independent Legal Representative - Fourth Respondent Representation: B W Walker SC & L Goodchild - Appellant Submitting appearance - First Respondent I Temby QC & M Anderson - Second Respondent P Braine - Third Respondent S Gardiner - Fourth Respondent Neisha Shepherd, Broadmeadow - Appellant I V Knight, - First and Second Respondents Kathryn Renshall - Third Respondent Independent Legal Representative - Fourth Respondent File Number(s): CA 2010/281392 Publication restriction: See Children and Young Persons (Care and Protection) Act 1998 at s 105.