Re Leonardo [2022] NSWSC 1265

Supreme Court New South Wales

Medium Neutral Citation: Re Leonardo [2022] NSWSC 1265 Hearing dates: 7 September 2022 Date of orders: 7 September 2022 Decision date: 21 September 2022 Jurisdiction: Equity - Duty List Before: Meek J Decision: Restrain Minister for Families, Community and Disability Services from removing Leonardo from the care of the plaintiffs on terms Catchwords: CHILD WELFARE — Parens patriae — Very young infant (30 months) placed with plaintiffs for prior 15 months — interim parental responsibility allocated to Minister — Minister and Secretary pursue transition plan for permanent placement with paternal uncle — Plaintiffs' application for joinder to Children's Court proceedings opposed and dismissed — Plaintiffs essentially desire permanent placement of infant child — Urgent hearing — infant to be removed within days — Restraining order made PRACTICE — Parens patriae — Amended Summons makes reference to an independent children's lawyer (ICL) who has represented the interests of child in the Children's Court — ICL not named as a party as such — Nonetheless served with notice of application CHILD WELFARE — Parens patriae — Nature of care and protection jurisdiction — Exceptional nature of jurisdiction where proceedings in Children's Court and appeal decision of Magistrate refusing joinder of applicant to proceedings — Analogous approach to circumstance where applicants also challenge substantively seek to challenge decisions of Minister and Secretary regarding placement and transition plans CHILD WELFARE — Parens patriae — consideration of permanent placement principles in s 10A(3)(b) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) INTERPRETATION — What use can be made of extrinsic materials — Explanatory notes, second reading speeches, relevant material in the Hansard record of debates Legislation Cited: Adoption Act 2000 (NSW) Child Protection Legislation Amendment Act 2014 (NSW), Sch 1 Child Protection Legislation Amendment Bill 2013 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 3, 8, 9, 10A, 17, 18, 19, 54, 69, 78, 78A, 79, 79A, 82, 83, 90AA, 91, 93, 94, 98, 99D, 143, 149I, 150, 232, 245, 247, Ch 8 Children's Guardian Act 2019 (NSW) Civil Procedure Act 2005 (NSW), ss 56, 98 Court Suppression and Non-publication Orders Act 2010 (NSW), s 4 Interpretation Act 1987 (NSW), ss 33, 34 Uniform Civil Procedure Rules 2005 (NSW), r 42.7 Voluntary Assisted Dying Act 2022 (NSW), s 13 Cases Cited: AB & JB v Secretary [2021] NSWDC 626 Builders Licensing Board v Mahoney (1986) 5 NSWLR 96 CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855 Cowling v Cowling (1998) FLC 92-801 DZU v Foundations Care [2021] NSWCATAD 142 Foster Carer v Department of Family and Community Services [2017] NSWDC 360; (2017) 26 DCLR (NSW) 66 Goktas v Government Insurance Office of New South Wales (1993) 31 NSWLR 684 GR v Secretary, Department of Communities & Justice; Minister for Families, Communities and Disability Services [2021] NSWCA 301 GR v Secretary, Department of Communities and Justice [2021] NSWCA 267 GR v Secretary, Department of Families, Disabilities and Community Services [2019] NSWCA 277 KH v Secretary, Department of Communities and Justice [2021] NSWDC 498 LZ and QJ v Family and Community Services [2017] NSWDC 414 Ping v Van Der Kroft [1982] 2 NSWLR 731 Re Adoption of IEK [2019] NSWSC 171 Re Anna, Bruno, Courtney and Deepak [2001] NSWSC 79 Re Baby S [2014] NSWSC 871 Re Frances and Benny [2005] NSWSC 1207 Re Georgia and Luke [2008] NSWSC 1277 Re Harris (1936) 37 SR (NSW) 17 Re June (No 2) [2013] NSWSC 1111 Re K's Statutory Will [2017] NSWSC 1711 Re Linda [2011] NSWSC 1596 Re Tilly and Tilly and Minister for Family & Community Services [2015] NSWSC 1208 Re Tilly and Minister for Family and Community Services [2015] NSWSC 229 Re Victoria [2002] NSWSC 647; (2002) 29 Fam LR 157 Re Weir (1953) 70 WN (NSW) 78 Rogers (a pseudonym) v Secretary, Department of Family and Community Services NSW [2019] NSWDC 194 Secretary of the Department of Communities and Justice v Fiona Farmer [2019] NSWChC 5 Secretary, Department of Communities and Justice v KH [2021] NSWCA 308 Secretary, Family and Community Services v AH and AN [2017] NSWDC 412 SK v Secretary, Department of Family and Community Services [2016] NSWDC 273 SL v Secretary, Department of Family and Community Services [2016] NSWCA 124 Stanley v Director of Public Prosecutions (NSW) [2021] NSWCA 337; (2021) 398 ALR 355 T v H (1985) 3 NSWLR 270 TF v Department of Family & Community Services [2015] NSWSC 694 Category: Procedural rulings Parties: C (First Plaintiff) [redacted] (Second Plaintiff) Secretary, Department of Communities and Justice (First Defendant) MGM (Second Defendant) M (Third Defendant) Minister for Families, Community and Disability Services (Fourth Defendant) Representation: Counsel: N J Bateman (Plaintiffs and Second Defendant) M W Anderson (First and Fourth Defendants) Solicitors: King Cain (Plaintiffs) Kenny Spring Solicitors (Second Defendant) Crown Solicitor's Office (First and Fourth Defendants) File Number(s): 2022/261908