Re June (No.2) [2013] NSWSC 1111

Supreme Court New South Wales

Medium Neutral Citation: Re June (No.2) [2013] NSWSC 1111 Hearing dates: 02/07/2013 and 09/07/2013 Written submissions 12 and 19 July 2013 Decision date: 16 August 2013 Jurisdiction: Equity Division Before: McDougall J Decision: Detailed reasons given for decision to quash orders of Children's Court. Costs orders made (see at [245]). Catchwords: CHILD WELFARE - care proceedings - application by foster carers challenging decision of the Children's Court - whether magistrate erred in rejecting evidence - need to weigh advantages of admitting probative evidence against disadvantages of admitting improperly obtained evidence - whether magistrate failed to apply s 79(3) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) - whether magistrate took into account, and acted on, irrelevant considerations

CHILD WELFARE - care proceedings - where statutory opportunity to be heard on matters of significant impact - whether foster carers were entitled to that opportunity - what constitutes an opportunity to be heard - Children and Young Persons (Care and Protection) Act 1998 (NSW) s 87

CHILD WELFARE - care proceedings - whether foster carers have standing to seek relief under s 69 Supreme Court Act 1970 (NSW) - if not, whether manifest defects in hearing before and reasons of Children's Court constitute "exceptional circumstances" - whether Supreme Court may, in the exercise of parens patriae jurisdiction, grant relief under s 69 Supreme Court Act 1970 (NSW)

EVIDENCE - care proceedings - admissibility - assessment reports - where assessment report obtained outside the assessment process outlined in the Children and Young Persons (Care and Protection) Act 1998 (NSW) - where report was not prepared pursuant to court order - relevant principles - Children and Young Persons (Care and Protection) Act 1998 (NSW) ss 52, 53, 54, 55, 56, 57, 58, 59 Legislation Cited: Children and Young Persons (Care and Protection Act) 1998 (NSW) Child Welfare Act 1939 (NSW) Civil Procedure Act 2005 (NSW) Coroner's Act 1980 (NSW) Legal Aid Commission Act 1979 (NSW) Supreme Court Act (1970) (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Attorney-General v Maksimovich (1985) 4 NSWLR 300 Crinion v IG Markets Ltd [2013] EWCA Civ 587 J v Lieschke (1987) 162 CLR 447 Kiama Constructions Pty Ltd v Davey (1996) 40 NSWLR 639 Maksimovic v Walsh [1983] 2 NSWLR 656 Re Alan [2008] NSWSC 379 Re Bailey and Blake [2011] NSWSC 1390 Re Bailey and Blake (No.2) [2012] NSWSC 394 Re June [2013] NSWSC 969 Re Kerry (No.2) [2012] NSWCA 127 Re Kerry (No.2) - Costs [2012] NSWCA 194 Re Georgia and Luke [2008] NSWSC 1277 Re Oscar [2002] NSWSC 453 Re Tracey [2011] NSWCA 43 Secretary, Department of Human Services v Children's Court of Victoria and Ors [2012] VSC 422 Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816 Texts Cited: Stein, Locus Standi (Law Book Company, 1979) Thio, Locus Standi and Judicial Review (Singapore University Press, 1971) Category: Principal judgment Parties: Foster Father (First Plaintiff) Foster Mother (Second Plaintiff) Director General, Department of Family and Community Services (First Defendant) Father (Second Defendant) Child (Third Defendant) Mother (Fourth Defendant) Representation: Counsel: M W Anderson / J Longworth (Plaintiffs) G W Moore / V Tzatzagos (First Defendant) L J Sproston (Second and Fourth Defendants) C Spain (Independent Legal Representative of the child) Solicitors: Neil Jones Solicitors (Plaintiffs) NSW Crown Solicitors (First Defendant) Thompson Madden Solicitors (Second and Fourth Defendants) Longman Hill Solicitors (Independent Legal Representative of the child) File Number(s): 2013/199535