Application of Director-General, Department of Family and Community Services; Re BS (No 2) [2013] NSWSC 1243

Supreme Court New South Wales

Medium Neutral Citation: Application of Director-General, Department of Family and Community Services; Re BS (No 2) [2013] NSWSC 1243 Hearing dates: Wednesday 21 August 2013 Decision date: 21 August 2013 Jurisdiction: Equity Division - Adoption List Before: Brereton J Decision: Grant access to documents produced on subpoena limited to the legal representatives of each party Catchwords: ADOPTION - whether material being used to provide service relating to safety welfare and wellbeing of a child - where parenting capacity is relevant issue - whether information provided goes to parenting capacity Legislation Cited: (NSW) Children And Young Persons (Care and Protection) Act 1998, s 245C, s 245D, s 245F Category: Procedural and other rulings Parties: Director-General, Family and Community Services (applicant) CS (first defendant) TF (second defendant) Representation: Counsel: Mr J Harris (applicant - solicitor) Ms S Leis (first defendant) TF (second defendant - in person) Solicitors: Crown Solicitor's Office (applicant) Tony Cullinan Lawyers (first defendant) File Number(s): A162/2012

Judgment (ex tempore) 1HIS HONOUR: Paragraph 42 of the affidavit of Debra Hogan of 24 July 2013 exhibits as DH1 copies of police events relating to the first and second defendants, being the birth mother and father. It is apparent on the face of the exhibit that the documents were provided by police pursuant to the (NSW) Children and Young Persons (Care and Protection) Act 1998 Chapter 16A in response to a request made by Family and Community Services under s 245D of that Act. 2Section 245D provides that a prescribed body (which I take the Director-General to be), may request another prescribed body (which I take the New South Wales Police Force to be) to provide the requesting agency with any information held by the other body that relates to the safety, welfare or wellbeing of a particular child or young person or class of children or young persons and that any such request may be made for the purposes of assisting the requesting agency: (a) to make any decision, assessment or plan or to initiate or conduct any investigation or to provide any service relating to the safety, welfare or wellbeing of the child or young person or class of children or young persons... 3Section 245C provides that the requested body may provide information relating to the safety, welfare and wellbeing of a particular child or young person to the recipient if the provider reasonably believes that provision of the information would assist the recipient to make any decision, assessment or plan or to initiate or conduct any investigation or provide any service relating to the safety, welfare or wellbeing of the child or young person. Section 245D(3) provides that where a prescribed body receives a request under s 245D(1), it is required to comply with the request if it reasonably believes, after being provided with sufficient information by the requesting agency to do so, that the information may assist the requesting agency for any purpose referred to in subsection 2. Section 245F provides that if any information is provided to a prescribed body under this Chapter, the prescribed body must not, except as otherwise required or permitted by any law, use or disclose the information for any purpose not associated with the safety, welfare or wellbeing of the child to whom the information relates. 4For the first defendant, the objection appears to be that use of the information so obtained for the purpose of these proceedings is in contravention of s 245F. It is also submitted that the material is not relevant. 5As I understand the issues in the present proceedings at this stage informed by the written submissions by the parties that have been exchanged before the trial, the fundamental dispute is whether adoption is a clearly preferable result so far as the best interests of the child are concerned to any other order that could be made by the Court with respect to the care of the child. In essence, as I understand the defendant's case, it is that a less permanent outcome than adoption is to be preferred, essentially because it would provide greater flexibility in the future and better serve the child's identity needs. 6A key issue in the case is going to be the balancing of factors of permanency, security, stability and certainty on the one hand with the desirability of flexibility on the other. In those circumstances, the prospects of there ever being restoration or a more extensive relationship with the birth parents is a relevant consideration. That means that their parenting capacity is also a relevant consideration. 7In my view, material of the type presently under tender has potential relevance sufficient to meet the test of relevance because it may well inform the Court as to a judgment of the parenting capacity of each of the birth parents, and thus as to the desirability of preserving some flexibility as against the more permanent solution of adoption. Accordingly, I would not reject this material on grounds of relevance. 8So far as the s 245F objection is concerned, the reference to "safety, welfare or wellbeing of the child" in s 245F is informed by the use of that phrase in s 245C (1)(a) and s 245E(2)(a). It is clear that it is not restricted to decisions, assessment plans, investigations or services under the Care and Protection Act but extends to any such decision, assessment plan, investigation or service relating to the safety, welfare or wellbeing of the relevant child. 9While (NSW) Adoption Act 2000 makes clear that adoption is to be regarded as a service to the child, it does not detract from this to say that whether in this case adoption will provide a service for the child is in issue. What is occurring in this case is that the Department is endeavouring to provide a service to the relevant child by way of seeking an adoption order. It is using the information presently under dispute as an aspect of seeking to provide this service. 10It seems to me that a request for this information, assuming it was made in the context of the present proceedings, was a request made at least for the purposes of assisting it to provide that service to the child, and that such a service is plainly one that relates to the welfare of the child. 11Turning then to s 245F itself, in tendering this material in evidence, the plaintiff is using the information for a purpose associated with the welfare of the child. It is not, it might be observed, required that that purpose be even the primary purpose of the disclosure, so long as it is associated with the welfare of the child. To my mind, it is quite clear that tendering material relating to the parenting capacity of the birth parents in evidence on an adoption application is a use of that material associated with the welfare or wellbeing of the child. 12In my view, use of this material is not contrary to s 245F. It is, therefore, not necessary for me to resort to the general power under the Adoption Act so far as the receipt of evidence is concerned. 13I admit paragraph 42 and exhibit DH1.