Secretary, Department of Family and Community Services v Smith [2017] NSWSC 6

Supreme Court New South Wales

Medium Neutral Citation: Secretary, Department of Family and Community Services v Smith [2017] NSWSC 6 Hearing dates: 15 November 2016 Date of orders: 23 January 2017 Decision date: 23 January 2017 Jurisdiction: Equity Before: Brereton J Decision: Application for injunction restraining defendant from disclosing child's in-care status dismissed. Interlocutory injunction to be discharged after 14 days. Catchwords: FAMILY LAW AND CHILD WELFARE – parens patriae jurisdiction – application for injunction to restrain disclosure that child is in care – nature of parental jurisdiction – custodial aspect – protective aspect – where proposed disclosure would refer directly to child - whether disclosure would contravene (NSW) Children and Young Persons (Care and Protection) Act 1998, s 105, and thereby infringe justiciable public or private right under parental responsibility of Minister – whether disclosure would be injurious to child's welfare – stigmatization of children in care – evaluation and balancing of jeopardy to child's welfare in context of child already in public spotlight and defendant's and public interest in freedom of expression and scrutiny of care system - held, on balance potential jeopardy to child's welfare insufficient to trump right of free expression. Legislation Cited: (CTH) Family Law Act 1975 s 67ZC, s 121 (NSW) Adoption Act 2000, s 119, s 180 (NSW) Children (Care and Protection) Act 1986, s 67, s 68 (NSW) Children (Criminal Proceedings) Act 1987, s 15A (NSW) Children and Young Persons (Care and Protection) Act 1998, s 104C, s 105 (NSW) Commonwealth Powers (Family Law—Children) Act 1986, s 3(2)(a) and (c) (NSW) Crimes Act 1900, s 578A (UK) Children Act 1989, s 1(1) (UN) Convention on the Rights of the Child, Article 16 Cases Cited: C, In re [1990] Fam 39 Carseldine v Director of Department of Children's Services (1974) 133 CLR 345 Department of Health and Community Services (NT) v JWB and SMB (1992) 175 CLR 218; [1992] HCA 15 Director General Department of Community Services v Australian Broadcasting Corporation [1996] NSWSC 174 Director-General, Department of Community Services v Y [1999] NSWSC 644 Gee v Pritchard (1818) 2 Swan 402; 36 ER 670 K v Minister for Youth and Community Services [1982] 1 NSWLR 311 Kelly v British Broadcasting Corpn [2001] Fam 59 M and N (Minors), In re (Wardship: Publication of Information) [1990] Fam 211 N (Infants), Re [1967] Ch 512 P v P (1985) 2 NSWLR 401 R v Central Independent Television plc [1994] Fam 192 Reynolds v Times Newspapers Limited [2001] 2 AC 127 Rinehart v Welker [2011] NSWCA 403 S (A Child), In re (Identification: Restrictions on Publication) [2004] Fam 43 S (FC) (a child), In re [2004] UKHL 47 S v McC (orse S) and M (DS intervener); W v W [1972] AC 24 Scott v Scott [1913] AC 417 Secretary Department of Family and Community Services v Smith [2016] NSWSC 1384 W (A Minor), In re (Wardship: Restrictions on Publication) [1992] 1 WLR 100 Waters v Pacific Publications Pty Ltd [1999] NSWSC 366 Wellesley v Duke of Beaufort (1827) 2 Russ 1; 38 ER 236 Wellesley v Wellesley (1828) 2 Bli NS 124; 4 ER 1078 X, Re [1975] Fam 47; 1 All ER 697 X, Re [1984] 1 WLR 1422 Z (A Minor), In re (Identification: Restrictions on Publication) [1997] Fam 1 Texts Cited: Denzel D & MacDonald ML (2014), 'Stigma and Foster Care: An Empirical Investigation', University of Massachusetts Amherst. Farmer E, Selwyn J & Meakings S (2013), 'Other children say you're not normal because you don't live with your parents', Child and Family Social Work, 18, pp 25-34. Morgan R (2011) 'Children's care monitor 2011'. Penninck AJ (2013), 'An exploration of the effects of stigma on the experiences of foster care alumni', Theses, Dissertations and Projects, Paper 940, SmithScholarWorks, Smith College. Peters J (2005) 'True ambivalence: Child welfare workers' thoughts, feelings, and beliefs about kinship foster care', Children and Youth Services Review, 27(6), pp 595-614. Rest ER & Watson KW (1984), 'Growing up in foster care', Child Welfare, 63(4), pp 291-306. Ridge T & Miller J (2000) 'Excluding children: Autonomy, friendship and the experience of the care system', Social Policy & Administration, 34(2), pp 160-75. Rogers J (2016) ''Different' and 'Devalued': Managing the Stigma of Foster-Care with the Benefit of Peer Support', British Journal of Social Work, 0, 1-16. Schofield G, Been M, Sargent K & Thoburn J (2004) Part of the family: Pathways through foster care. London, British Association for Adoption and Fostering. Category: Principal judgment Parties: Secretary, Department of Family and Community Services (plaintiff) Allanna Pearl Smith (defendant) Representation: Counsel: J Harris (solicitor) (plaintiff) Ms A Smith (in person) (defendant)