CLN 2025

CLN 2 - May 2025

NSW Court of Appeal - Care and Protection Cases

Shapkin v Secretary, Department of Communities and Justice [2025] NSWCA 71

PROCEDURE – judicial review of District Court’s dismissal of interlocutory appeal from Children’s Court – whether independent legal representative of child entitled to be heard – where divergence in submissions between Secretary and independent legal representative – where divergence of principle on face of authorities – where Court would be assisted by submissions from independent legal representative on questions of law – leave granted to be joined as intervener

Shapkin v Secretary, Department of Communities and Justice [2025] NSWCA 87

ADMINISTRATIVE LAW – Error of law on the face of the record – Children and Young Persons (Care and Protection) Act 1998 (NSW) s 98(3) – application to appear in proceedings in Children’s Court dismissed – appeal to District Court dismissed – whether error of law on the face of the record of the District Court – whether sufficient for applicant to be found to have a genuine concern for the safety, welfare and well-being of the child or whether application was subject to a further discretion – conflict in decisions of Supreme Court on approach to s 98(3) – whether relief should be withheld for discretionary reasons

Supreme Court of NSW - Care and Protection Cases

The Adoption of John (a pseudonym) and William (a pseudonym) [2025] NSWSC 109

CHILD WELFARE – adoption – Aboriginal placement principles – reasonable inquiries – where children placed with non-Aboriginal carers at a time when not aware that children may be Aboriginal – where birth mother and children strongly identify as Aboriginal –where carers are raising children as Aboriginal – where Secretary of view that children are not Aboriginal – whether Secretary has made reasonable inquiries as to whether the children are Aboriginal children – whether children are Aboriginal children

The Adoption of Jimmy (a pseudonym) [2025] NSWSC 408

CHILD WELFARE – adoption – Aboriginal placement – where birth parents disclosed Aboriginal heritage – whether Secretary has made reasonable inquiries as to whether child is an Aboriginal child – whether child is Aboriginal

CHILD WELFARE – adoption – best interests – alternatives to adoption – where child has been cared for by adoptive parents for more than 12 years – where adoptive parents have been granted parental responsibility for child until he attains 18 years of age – where adoptive parents not seeking guardianship orders and seek to support child to lead independent life – adoption clearly preferable in best interests of child

CHILD WELFARE – adoption – consent – dispense order – child – where 17 year old child diagnosed with speech and language disorders – where child cannot participate in registered counselling to give consent to his own adoption – where child given opportunity to express views freely about the adoption

District Court of NSW - Care and Protection Cases

HP v The Secretary, Department of Communities & Justice [2024] NSWDC 474

CHILD WELFARE – appeals from decision of Children’s Court – appointment of guardian ad litem for Mother during the hearing – subsequent adjournment of proceeding – Guardian subsequently applies for discontinuance of appeal proceeding – whether proceeding could be discontinued – whether discontinuance requires leave – if discontinuance requires the Court’s leave – whether leave should be granted

Secretary, Department of Communities and Justice v AM [2024] NSWDC 646

CHILDREN – care appeal – child in need of care and protection – child approximately 6 years of age – no realistic possibility of restoration to either parent – child placed into foster care at a young age where he remained for almost 4 years – appeal by the Secretary and paternal grandmother against the Children’s Court decision to place the child’s care with the foster carer, and in lieu to place child into the paternal grandmother’s care – competing suitable persons – no credibility issue of witnesses – analysis of s 83(3) placing child with a “relative” – consideration of “permanency” planning pursuant to ss 10A and 78A – short term and long term considerations – best interest of the child

Children's Court of NSW - Care and Protection Cases

Department of Communities and Justice (DCJ) and Chase Croft [2024] NSWChC 15

CHILD WELFARE — Care proceedings — Active Efforts — Temporary Care Agreement

Department of Communities and Justice (DCJ) and Ivy [2025] NSWChC 1

CHILDREN — CARE — nature of the Court’s jurisdiction — Section 83(5) does not restrict the Court in matters it may consider — not possible to determine a realistic possibility of restoration on the balance of probabilities — unacceptable risk caters for all considerations — The proper test to be applied is not that of ”unacceptable risk to the child”.

Department of Communities and Justice and Ziggy Smith [2025] NSWChC 2

CHILD WELFARE — Care proceedings — Care plan — Permanency planning

Secretary, Department of Communities and Justice and Levi and Riley (No 2) [2025] NSWChC 5

CHILD WELFARE — Care proceedings — Aboriginality 

Department of Communities and Justice (DCJ) and Rosa Juma [2025] NSWChC 6

CHILD WELFARE — Care proceedings — Care order — Interim care order — Safety Plans

Court of Criminal Appeal 

JL v R [2024] NSWCCA 246

CRIME — Appeals — Appeal against sentence — Juvenile offender — Mental health — Moral culpability — General deterrence — Bugmy v The Queen — Youth — Where applicant subject to conditional liberty at time of offence — Manifest excess

Supreme Court of NSW - Criminal Cases

R v Diallo & Ors (No 17) (Sentence) [2024] NSWSC 1650

CRIMINAL LAW – sentencing – offences of violence – violent melee in a suburban street – six people stabbed – one child killed – manslaughter – attempted murder – wound with intent – animosity between groups of young men – an art form known as drill rap music – where offenders’ group initiated violence by attending with knives – where victims’ group emerged from house and attacked – zombie knife and golf clubs – where jury rejects proposition that joint criminal enterprise abandoned – dispute over content of joint criminal enterprise – relevance of self-defence – fact finding on sentence – finding that subjective component established but objective component rejected – relevance of extent to which conduct exceeded what was reasonable – different findings in relation to each offence – devastating impact on victims – eloquent and moving victim impact statement – subjective circumstances of offenders – requirement for stern punishment – balancing competing considerations – a place for leniency – assessment of moral culpability – different findings in each case – where one offender contended subjective factors fed into assessment of moral culpability – application of cases – submission rejected – parity and proportionality in sentencing co-offenders – different considerations – varying assessment of objective criminality – individualised justice – application for direction that three offenders serve sentences as juvenile offenders – Prosecutor chooses to oppose – direction made – special circumstances

PD v Director of Public Prosecutions (NSW) [2025] NSWSC 16

APPEAL – sentence appeal – penalty for young person in Children’s Court – whether penalty excessive – aggregate control order imposed for multiple offences – some offences objectively serious – favourable personal circumstances of offender – whether commencement date to be backdated to account for presentence custody

CRIME – Children’s Court – sentencing – control order – period not to exceed 2 years unless accumulating on existing order – aggregate control order subject to 2-year limit – limit of 3 years applicable only to new order extending term of existing order

CRIMINAL PROCEDURE – appeals – appeal from Presidential Children’s Court to District Court – deemed appeal to Supreme Court – criminal proceeding – rules governing civil proceedings inapplicable

R v TB [2025] NSWSC 38

BAIL – 14 year old Aboriginal child – charged with police pursuit and knowingly carried in conveyance while on bail – these charges to be dropped – Court is still required to apply s 22C of the Bail Act 2013 (NSW) because charges not yet dropped – tension between s 22C Bail Act and s 6 Children (Criminal Proceedings) Act 1987 (NSW) – s 22C requires a child not to be treated equally before the law when accused of certain crimes – child in custody for 3 months as a result of charges that are to be withdrawn – consideration of unacceptable risk – prosecution not established bail should be refused – conditional bail granted

R v JS [2025] NSWSC 116

BAIL – 15-year-old Aboriginal child – further offences committed whilst on bail – Bail Act 2013 (NSW), s 22C test – attempt to commit substantive offence is not a “relevant offence” as required by s 22C – unacceptable risk test – bail granted with conditions

R v KC [2025] NSWSC 258

BAIL – release application – break enter and steal – taking and driving a motor vehicle – driving unlicensed – offences committed whilst on bail – young person – 14 years old – s 22C test – unacceptable risk test – positive conduct in custody – motivation to address issues – strength of bail proposal – bail granted with conditions

Children's Court of NSW - Criminal Cases

R v Harry [2025] NSWChC 3

CHILDREN — CRIME — 100 police interactions — accusatorial system is not focused on the referral to expert services or the reasons why you have been in conflict with the law — doli incapax means the greater the background of disadvantage the less likely a child will be held criminally responsible — the greater the need for intervention the less likely there will be intervention — children under 14 never get to be supervised by Youth Justice — refused to participate or engage with police

R v Nadj [2025] NSWChC 4

CHILDREN — CRIME — on bail; on parole; post and boast; knife

R v Ezra [2024] NSWChC 16

CHILDREN - CRIME – Registration - Child Protection (Offenders Registration) Act

CLN 1 - April 2025

Children's Court of NSW - Criminal Cases

R v Ben - Unreported (PDF, 142.8 KB)

CHILDREN — CRIME — Young Offenders Act