Re Tilly v Minister for Family & Community Services [2015] NSWSC 1208

Supreme Court New South Wales

Medium Neutral Citation: Re Tilly v Minister for Family & Community Services [2015] NSWSC 1208 Hearing dates: 30 June 2015, 1 July 2015 Date of orders: 03 July 2015 Decision date: 03 July 2015 Jurisdiction: Equity - Protective List Before: Brereton J Decision: Notice of motion dismissed; Secretary of Department of Family and Community Services relieved from undertaking. Catchwords: FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – application to prevent removal of child from plaintiff's care – where allegations of mistreatment – where statutory obligation on department to remove child – whether Court can make orders inconsistent with statute – parens patriae jurisdiction – parens patriae power not capable of dispensing with statutory obligations – residual parens patriae power to remove child from Minister's care in aid of statutory care responsibilities – held, Court has power to make child ward of Court – whether Court should exercise parens patriae jurisdiction – best interests of child – where removal would undermine child's bonds with plaintiff – where need to protect child from risk of harm – where exercising jurisdiction would circumvent statutory child protection regime – held, Court should not exercise parens patriae jurisdiction.

ADMINISTRATIVE LAW – judicial review – grounds of review – procedural fairness – whether rules of procedural fairness apply to decision of Children's Guardian to impose interim bar on plaintiff's performance of child-related work under (NSW) Child Protection (Working with Children) Act 2012 – where review mechanism specifically prescribed under Act through New South Wales Civil and Administrative Tribunal – held, decision not subject to rules of procedural fairness. Legislation Cited: (CTH) Family Law Act 1975 (NSW) Adoption Act 2000 (NSW) Child Protection (Working with Children) Act 2012, s 15(1), s 17, s 17(3), s 19, s 20, s 23, s 35(1), pt 4, sch 1 cl 2 (NSW) Children and Young Persons (Care and Protection) Act 1998, s 49, s 83(7), s 90, s 135A, s 137(1), s 138, s 139(1), s 140, s 247 (NSW) Children and Young Persons (Care and Protection) Regulation 2012, cl 42B, cl 42B(3) (QLD) Children's Services Act 1965-1973, s 47 Cases Cited: Carseldine v The Director of Department of Children's Services [1974] HCA 33; (1974) 133 CLR 345 K v The Minister of Youth and Community Services [1982] 1 NSWLR 311; (1982) 8 Fam LR 756 P v P [1994] HCA 20; (1994) 68 ALJR 449; (1994) 120 ALR 545; (1994) 181 CLR 583 Re Baby S [2014] NSWSC 871 Re Frieda and Geoffrey [2009] NSWSC 133; (2003) 40 Fam LR 608 Re Tilly and Minister for Family and Community Services [2015] NSWSC 229 Re Victoria [2002] NSWSC 647; (2002) 29 Fam LR 157 Re Woolley; Ex parte Applicants M276/2004 by their next friend GS [2004] HCA 49; (2004) 79 ALJR 43; (2004) 210 ALR 369; (2004) 225 CLR 1 TF v Department of Family & Community Services [2015] NSWSC 694 Category: Principal judgment Parties: RB (plaintiff) Director General, Department of Family & Community Services (first defendant) Secretary, Department of Family & Community Services (second defendant) Life Without Barriers (third defendant) Office of the Children's Guardian (fourth defendant) Representation: Counsel: P O'Dwyer SC (plaintiff) Ms G E Mahony (first and second defendant) M Higgins (third defendant)