Re Rosie (No 2) [2022] NSWSC 1750

Supreme Court New South Wales

Medium Neutral Citation: Re Rosie (No 2) [2022] NSWSC 1750 Hearing dates: 25 July 2022, 5 August 2022, Further evidence and submissions 9 September 2022 and 13 December 2022 Date of orders: 16 December 2022 Decision date: 16 December 2022 Jurisdiction: Equity - Duty List Before: Meek J Decision: Joinder and representation orders made — Requirement for a tutor dispensed with Catchwords: CHILD WELFARE — parens patriae — Secure accommodation orders and related orders made in relation to young girl — Nature of secure accommodation orders and consideration of initial orders and evidence and subsequent review of orders and the basis for that CIVIL PROCEDURE — Joinder of parties — Consideration of Court's approach to joinder — Purposive approach informs joinder — Consideration of approaches in the Protective and parens patriae jurisdiction and identification of relevant guides regarding joinder of child and young person on the one hand and persons associated with the child and young person on the other hand CIVIL PROCEDURE — Parties — Persons under legal incapacity — Dispensation with requirement for tutor — Approach to dispensation informed by purposes of parens patriae jurisdiction and whether appointment of a tutor would have utility in achieving anything for the child or young person that is not already being achieved by separate independent representation CHILD WELFARE – parens patriae — Consideration of appointment of separate representatives in the interests of the child and young person — Distinction between roles of a direct legal representative and independent legal representative — Consideration of statutory models and other approaches regarding representation of children — Statutory models informative but not binding on the Court in the exercise of its inherent parens patriae jurisdiction Legislation Cited: Adoption Act 2000 (NSW) Child Protection Legislation Amendment Act 2015 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Civil Procedure Act 2005 (NSW) Court of Protection Rules 2017 (UK) Court Suppression and Non-publication Orders Act 2010 (NSW) Family Law Act 1975 (Cth) Guardianship Act 1987 (NSW) Mental Capacity Act 2005 (UK) Mental Health Act 1959 (UK) NSW Trustee and Guardian Act 2009 (NSW) Supreme Court Rules 1970 (NSW) Surrogacy Act 2010 (NSW) Trustee Act 1925 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: A & B v Children's Court of Victoria [2012] VSC 589 Azar v Kathirgamalingan [2012] NSWCA 429; (2012) 62 MVR 462 Binetter v Binetter [2022] NSWCA 169 C v W (No 2) [2016] NSWSC 945 Department of Community Services v Y [1999] NSWSC 644 Director General, Department of Community Services v Thomas [2009] NSWSC 217; (2009) 41 Fam LR 220 Director-General Department of Human Services; Re Thomas [2010] NSWSC 1525 Director-General, Department of Community Services; Re Thomas [2009] NSWSC 1490 DRJ v Commissioner of Victims Rights [2020] NSWCA 136 GAU v GAV [2016] 1 Qd R 1; [2014] QCA 308 George v Children's Court of New South Wales (2003) 59 NSWLR 389; [2003] NSWCA 389 GR v Department of Communities & Justice [2020] NSWSC 1622 GR v Secretary, Department of Communities & Justice; Minister for Families, Communities & Disability Services [2021] NSWCA 301 GR v Secretary, Department of Communities and Justice [2020] NSWSC 892 GR v Secretary, Department of Communities and Justice [2021] NSWCA 267 GR v Secretary, Department of Communities and Justice; Secretary, Department of Communities and Justice v BW (a pseudonym) [2021] NSWCA 157 Grace and Rita [2002] NSWSC 1 Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369 Holt v Protective Commissioner (1993) 31 NSWLR 227 In Re K (A Child) (Secure Accommodation Order: Right to Liberty) [2001] 2 WLR 1141 Iskandar v Mahbur [2011] NSWSC 1056 John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 Mao v AMP Superannuation Ltd [2018] NSWCA 72 Masterman-Lister v Brutton & Co (2003) 1 WLR 1511 P v NSW Trustee and Guardian [2015] NSWSC 579 Re Alexis [2011] NSWSC 1545 Re Anita [2014] NSWSC 1352 Re Anita [2015] NSWSC 312 Re Bella [2013] NSWSC 1034 Re Beth (2013) 42 VR 124; [2013] VSC 189 Re Frances and Benny [2005] NSWSC 1207 Re Helen [2010] NSWSC 1560 Re Jayden [2006] NSWSC 1428 Re Jayden [2007] NSWCA 35 Re Jessica [2001] NSWSC 1207 Re Kara (No 6) [2020] NSWSC 1857 Re Liam [2005] NSWSC 75 Re Sally [2009] NSWSC 1141 Re Sally [2011] NSWSC 1696 Re Vernon [2011] NSWSC 1222 Ross v Lane Cove Council [2014] NSWCA 50 Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case)) (1992) 175 CLR 218; [1992] HCA 15 Smith v NRMA Insurance Ltd [2016] NSWCA 250; (2016) 77 MVR 480 Victoria v Sutton (1998) 195 CLR 291; [1998] HCA 56 Texts Cited: Baker, Ashton, Marin et al, Court of Protection Practice 2020 (20th ed, 2020, LexisNexis (UK)) Charles J, "Facilitating participation of "P" and vulnerable persons in Court of Protection proceedings" – Practical Guidance (3 November 2016) Legal Aid Commission of NSW, "Care and Protection: Working with Children – A Guide to Best Practice for Children's Legal Practitioners", 2020 Lindsay J, "NCAT's Protective Jurisdiction in Context" (Paper), NCAT Guardianship Division Training Seminar, 14 June 2022 Lindsay J, "Parties, Property and Notice of Proceedings in Succession Law Cases" (Paper), College of Law Seminar, 20 February 2019 Gordon Ashton, Justice Baker and Judge Marc Martin, Mental Capacity: Law and Practice (4th ed, 2018, LexisNexis (UK)) Court of Protection (UK) – Practice Direction 1A Court of Protection (UK) – Practice Direction 7A Practice Note SC EQ 13 – Adoptions Ritchie's Uniform Civil Procedure NSW (LexisNexis Butterworths) The Law Society of New South Wales, "Representation Principles for Children's Lawyers" (4th ed, 2014) United Nations Convention on the Rights of the Child 1989 Category: Principal judgment Parties: Secretary, Department of Communities and Justice (First Plaintiff) Minister for Families and Communities (Second Plaintiff) Representation: Counsel: B J Dean (Plaintiffs) G Moore (Separate Legal Representative)