JL v Secretary, Department of Family and Community Services [2015] NSWCA 88

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: JL v Secretary, Department of Family and Community Services [2015] NSWCA 88 Hearing dates: 1 May 2014 Decision date: 13 April 2015 Before: McColl JA at [1]; Basten JA at [192]; Meagher JA at [233] Decision: In Matter No. 2013/64151: Appeal dismissed.

In Matter No. 2014/73353: Summons dismissed. Catchwords: ADMINISTRATIVE LAW – judicial review – appeal from Children's Court to District Court – unsuccessful application for leave to apply to rescind care orders – application to Court of Appeal for relief pursuant to s 69, Supreme Court Act 1970 (NSW) – whether error of law on the face of the record or jurisdictional error established – whether District Court correctly applied provisions of the Children and Young Persons (Care and Protection) Act 1998, s 90

ADMINISTRATIVE LAW – child welfare – care and protection of children – care and protection orders – procedural fairness – apprehended bias – allegation judge biased in approach to assessing applicant's case – allegation of denial of procedural fairness

ADMINISTRATIVE LAW – child welfare – care and protection of children – care and protection orders – international treaty obligations – relevance to exercise of discretion – United Nations Convention on the Rights of the Child

CHILD WELFARE – child welfare – care and protection of children – care and protection orders – whether judge placed excessive or too little weight on applicant's evidence Legislation Cited: Children & Young Persons (Care and Protection) Act 1998 (NSW), ss 79, 81, 90, 91 Child Protection Legislation Amendment Act 2014 (NSW), Sch 1[51] Civil Procedure Act 2005 (NSW), s 71 Court Suppression & Non-publication Orders Act 2010 District Court Act 1973 (NSW) Human Rights and Equal Opportunity Commission Act 1986 (Cth), Sch 5 Supreme Court Act 1970 (NSW), s 69 Cases Cited: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; (2012) 83 NSWLR 302 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156 Boele v Rinbac Pty Ltd [2014] NSWCA 451 Colquhoun v District Court of New South Wales [2014] NSWCA 460 Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 Dempster v National Companies and Securities Commission (1993) 9 WAR 215 DFaCS (NSW) and the Colt Children [2013] NSWChC 5 Hamod v New South Wales [2011] NSWCA 375 Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 LXXX v Director-General, Department of Family and Community Services, Lakatos DCJ, (District Court of New South Wales, 2 November 2012, unrep) Le v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 875 Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 Re Campbell [2011] NSWSC 761 Re Felicity; FM v Secretary of Department of Family and Community Services (No 3) [2014] NSWCA 226 Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89 Re M (No 5); BM v Director-General of Family and Community Services [2013] NSWCA 253 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 Re Sarah [2013] NSWCA 379 Re Tracey [2011] NSWCA 43; (2011) 80 NSWLR 261. S v Department of Community Services [2002] NSWCA 151; (2002) 29 Fam LR Sue v Hill [1999] HCA 30; (1999) 199 CLR 462 Wende v Horwath (NSW) Pty Limited [2014] NSWCA 170; (2014) 86 NSWLR 674 "V V" v District Court of New South Wales [2013] NSWCA 469 Category: Principal judgment Parties: JL (Applicant) Secretary, Department of Family and Community Services (First Respondent) Mr and Mrs RS (Second Respondents) District Court of New South Wales (Third Respondent) G, AA, AR (Fourth Respondents) Representation: Counsel: JL Self Represented (Applicant) L Goodchild (Amicus Curiae) T Allen (First Respondent) M Anderson (Second Respondents) E Lawson (Fourth Respondents)