AA & Ors v Department of Family and Community Services [2016] NSWSC 842

Supreme Court New South Wales

Medium Neutral Citation: AA & Ors v Department of Family and Community Services [2016] NSWSC 842 Hearing dates: 16, 17 & 18 December 2015, 27 May 2016 and 1 June 2016 Date of orders: 22 June 2016 Decision date: 22 June 2016 Jurisdiction: Equity Before: Slattery J Decision: See paragraph [239] – [240] Catchwords: FAMILY LAW AND CHILD WELFARE – Care and Protection – plaintiffs seek declaratory and injunctive relief in the form of 22 prayers for relief against the Secretary of the Department of Family and Community Services – plaintiffs challenge the validity of decisions made and powers exercised by Departmental officers under Children and Young Persons (Care and Protection) Act 1998 ("Care Act") – whether the decision to assume and the manner of assuming the three older children into care on 24 June 2014 was invalid – whether the application for and the making of an ECPO regarding the children in the Children's Court on 1 July 2014 was invalid or otherwise beyond power under Care Act - whether the placement of a 'High Risk Birth Alert' at the local District Hospital on 26 August 2014 in regard to the birth of the child was beyond the powers conferred on the Secretary and the Department under the Care Act - whether Departmental officers placing 'risk of violence alerts' on Departmental files concerning the plaintiffs was within power and otherwise justified in the circumstances - whether the joinder of the defendant as an intervener in the Family Court proceedings was invalid or beyond power - whether statements made by the defendant about the status of the children as being 'in care' or removed and regarding the character of the plaintiffs as being either a criminal or having 'mental health issues' were misleading and should be withdrawn or removed from Departmental files - whether the various remedies the plaintiffs seek, including compensatory damages, are legally available and if so whether they should or should not be granted. Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Government Sector Employment Act 2013 Privacy and Personal Information Protection Act 1998 Uniform Civil Procedure Rules 2005 Civil Procedure Regulation 2012 Cases Cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 Forster v Jododex Australia Pty Ltd (1972) 127 CLR 121; [1972] HCA 61 Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1 Jakudo Pty Ltd v South Australian Telecasters Ltd (1997) 69 SASR 440 Lamb v Contogno (1987) 164 CLR 1 Lloyd v Veterinary Surgeons Investigating Committee [1999] NSWCA 68 Masters v Garcia (2005) 65 NSWLR 92 Perder Investments Pty Ltd v Elmer (1991) 31 FCR 201 Stocker v McElhinney (No.2) [1961] NSWR 1043 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 Whitbread v Rail Corporation of New South Wales [2011] NSWCA 130 Whitfield v De Lauret & Co Ltd (1920) 20 CLR 71 Category: Principal judgment Parties: First Plaintiff: AA Second Plaintiff: BB Defendant: Department of Family and Community Services Representation: Counsel: First Plaintiff: in person Second Plaintiff: in person Defendant: Ms T Stevens