Secretary, Department of Family & Community Services v K [2014] NSWSC 1065

Supreme Court New South Wales

Medium Neutral Citation: Secretary, Department of Family & Community Services v K [2014] NSWSC 1065 Hearing dates: 21 July 2014 Decision date: 08 August 2014 Jurisdiction: Equity Division - Protective List Before: Lindsay J Decision: Order made under the Succession Act 2006 NSW, s 18 authorising a Will to be made for a minor lacking testamentary capacity Catchwords: SUCCESSION Wills, Probate and Administration - Statutory Will - Minor Nil Capacity Case - Statutory powers of Court informed by protective jurisdiction - Consideration of benefit to, and interests of, incapacitated minor - Operation in context of statutory criteria. Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 NSW, ss 79, 81 Evidence Act 1995 NSW, ss 91-92) Family Provision Act 1982 NSW or Forfeiture Act 1995 NSW Succession Act 2006 NSW, ss 3, 16(1), 16(4); 18-26; 128, s 60(2)(m) Testator's Family Maintenance and Guardianship of Infants Act 1916 NSW s 3(2) Victims Support and Rehabilitation Act 1996 NSW Cases Cited: AB v CB [2009] NSWSC 680 at [5]-[6] Application by Peter Leslie Kelso [2010] NSWSC 357 Banks v Goodfellow (1870) LR 5 QB 549 at 565 Crawley, Re the Estate of [2010] NSWSC 618 Griffin v Union Trustee Co of Australia Limited (1947) 48 (NSW) 360 at 363; 65 WN (NSW) 5 at 7 In the Estate of Crippen [1911] P108 at 114-115 Pilbara Infrastructure Pty Limited v Australian Competition Tribunal (2012) 246 CLR 379 at 401 [42] Re DJR and the Mental Health Act, 1958 [1983] 1 NSWLR 557 at 564-565 Re Eve (1986) 31 DLR (4th) 1 at 13 et seq; [1986] 2 RCS 388 at 407 Re ES and the Mental Health Act, 1958 (1984) 3 NSWLR 341 at 343-344 Re Fenwick; Application of JR Fenwick; Re "Charles" (2009) 76 NSWLR 222 at 60 [193] - 61 [199] Roberts v Balancio (1987) 8 NSWLR 436 Secretary, Department of Health and Community Services v JWB and SMB ("Marion's Case") (1992) 175 CLR 218 at 258-259 Sultana, Application of [2010] NSWSC 915 Troja v Troja (1994) 33 NSWLR 269 Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 493 at 505 Texts Cited: HS Theobald, The Law Relating to Lunacy (Stevens and Sons, London, 1924) at pp 380-381 Category: Principal judgment Parties: Secretary, Department of Family & Community Services (Plaintiff) K, mother of the child C (First Defendant) B, putative father of the child (Second Defendant) Representation: Counsel: VA Hartstein (Plaintiff) First Defendant in person No appearance for Second Defendant Solicitors: IV Knight, Crown Solicitor (Plaintiff) First Defendant, self represented Second Defendant, no appearance File Number(s): 2014/00208512