Re M (No 5) - BM v Director-General, Department of Family and Community Services & Ors [2013] NSWCA 253

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Re M (No 5) - BM v Director-General, Department of Family and Community Services & Ors [2013] NSWCA 253 Hearing dates: 21 June 2013 Decision date: 09 August 2013 Before: Macfarlan JA [1]; Ward JA [2]; Sackville AJA [3]. Decision: 1. Amend the name of the First Respondent to the summons filed on 17 June 2013 (Summons) to "Director-General, Department of Family and Community Services". 2. Dismiss the Summons. [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 - children taken into care - mother seeks judicial review of decision of the District Court in substance affirming decision of the Children's Court - whether District Court decision disclosed error of law - whether Director-General made the relevant Care Plans as far as possible with the agreement of the mother as required by s 78(3) of the Children and Young Persons (Care and Protection) Act 1998 Legislation Cited: Family Law Act 1975 (Cth), ss 4, 69ZK Family Law Regulations 1984 (Cth), reg 12B(2), Sch 5, Item 2

Children and Young Persons (Care and Protection) Act 1998, ss 3, 7, 8, 9, 43, 45, 49, 52, 53, 54, 55, 56, 58, 59, 60, 61, 62, 64, 69, 71, 72, 73, 78, 78A, 79, 80, 83, 84, 86, 90, 90A, 91, 93, 98, 247 Children and Young Persons (Care and Protection) Regulation 2000, reg 12 Children and Young Persons (Care and Protection) Regulation 2012, reg 22 Court Suppression and Non-publication Orders Act 2010, ss 7, 8 Supreme Court Act 1970, s 69 Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Druett v Director-General of Community Services [2001] NSWCA 126 M v Department of Family and Community Services (Unreported, 19 April 2013) M v Director General, Department of Family and Community Services [2013] NSWCA 118 Muldoon v Church of England Children's Homes Burwood [2011] NSWCA 46; 80 NSWLR 282 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 Re M (No 4) - BM v Director-General, Department of Family and Community Services (named Department of Community Services in Summons) [2013] NSWCA 97 Category: Principal judgment Parties: BM (Applicant) Director-General, Department of Family and Community Services (First Respondent) District Court (Second Respondent) Mr C (Third Respondent) Mr B (Fourth Respondent) Mr S (Fifth Respondent) DM (Sixth Respondent) JM (Seventh Respondent) RM (Eighth Respondent) HM (Ninth Respondent) ZM (Tenth Respondent) Representation: Counsel: Mr A Allen (First Respondent) Mr PJ Braine (Fourth Respondent) Ms EA Lawson (Fifth Respondent) Mr M Hogg (Sixth and Seventh Respondents) Mr C Wilson (Eighth, Ninth and Tenth Respondents) Solicitors: Unrepresented, litigant in person via telephone link (Applicant) IV Knight, Crown Solicitor (First Respondent) ParksCoady Family Lawyers (Third Respondent) Rowley & Associates (Fourth Respondent) Legal Aid Commission (Fifth Respondent) Debbie Flynn & Associates (Sixth and Seventh Respondents) Pogson Cronin (Eighth, Ninth and Tenth Respondents) File Number(s): 2013/129799 Decision under appeal Jurisdiction: 9101 Citation: M v Department of Family and Community Services (Unreported, 19 April 2013) Date of Decision: 2013-04-19 00:00:00 Before: Olsson DCJ File Number(s): 2012/395414