J&T v Department of Communities and Justice [2023] NSWDC 78

District Court New South Wales

Medium Neutral Citation: J&T v Department of Communities and Justice [2023] NSWDC 78 Hearing dates: 13, 14, 15, 16, 17, 21 & 24 March 2023 Date of orders: 31 March 2023 Decision date: 31 March 2023 Jurisdiction: Civil Before: Judge Levy SC Decision: See paragraph [532] for orders. Catchwords: CHILD CARE APPEAL – trauma-informed approach to child care appeal brought as of right by parents from decision of the Children's Court pursuant to s 91 of the Children and Young Persons (Care and Protection) Act 1998 – hearing de novo – findings made in lieu of prior orders – finding pursuant to s 83(5) of the Act that a realistic possibility exists for restoration of the children the subject of the appeal to their parents within a reasonable period – non-acceptance of key aspects of evidence from an expert forensic psychologist relied upon by the Secretary, Department of Communities and Justice – application of the requirements of the Expert Witness Code to the reasoning of expert: UCPR Sch 7, cl 5(c) – new care plan required Legislation Cited: Anti-Discrimination Act 1977 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW), s 8, s 9, s 10, s 71, s 78, s 78A, s 83, s 84, s 90(1), s 91, s 93, s 94, s 105, s 107(1), Pt 1 & Pt 2 Disability Discrimination Act 1992 (Cwth) Uniform Civil Procedure Rules 2005 (NSW), r 23.2, Sch 7, cl 5(c) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Catlin v Draper [2023] NSWCA 49 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Department of Family and Community Services and Nathan [2018] NSWChC 1 Hackett (a pseudonym) v The Secretary, Department of Communities and Justice [2020] NSWCA 83 Harrison v Nominal Defendant (1975) 50 ALJR 330 Love v Commonwealth of Australia; Thoms v Commonwealth of Australia (2020) 270 CLR 152; [2020] HCA 3 Mabo & Ors v Queensland (No 2) [1992] HCA 23; 185 CLR 1 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Mason v Demasi [2009] NSWCA 227 Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58 S v Department of Community Services [2002] NSWCA 151 The Secretary, Department of Communities and Justice and Fiona Farmer [2019] NSWChC 5 Category: Principal judgment Parties: J (First plaintiff - mother) T (Second plaintiff - father) The Secretary, Department of Communities & Justice (Defendant) Ms V Taylor (Independent Legal Representative for the children the subject of the appeal) Representation: Counsel: Plaintiffs in person Ms J Wong (Defendant, The Secretary) Ms V Taylor (Independent Legal Representative for the children the subject of the appeal)