Constructional choice

DN v Secretary [2023] NSWSC 595

The issue was whether the Children’s Court had jurisdiction to vary a care order made after children were placed with UK carers10.  The mother (DN) argued that there was no power to vary the order. 

Kunc J rejected this.  The jurisdiction of courts is to be construed broadly11, and more particularly where child protection legislation demands a ‘maximal, beneficial and practical approach’.  What Kunc J called a ‘constructional preference’ should be applied where it is open on the ‘text and context’.  DN’s interpretation was ‘impractical’ and ‘inconvenient’ because it would require the Children’s Court to constantly evaluate whether it had jurisdiction.

This principle is from Episode 98 of interpretation NOW!


10 s 90 Children and Young Persons (Care and Protection) Act 1998 (NSW).

11 (at [111]) citing Leeming Authority to Decide (at [5.4]).