Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206 Hearing dates: 11 August 2017 Date of orders: 23 August 2017 Decision date: 23 August 2017 Before: Macfarlan JA at [1] Gleeson JA at [2] Payne JA at [67] Decision: (1) Dismiss the summons seeking leave to appeal.

(2) Order the applicant to pay the first respondent's costs of that summons. Catchwords: FAMILY LAW AND CHILD WELFARE – parens patriae jurisdiction – where child under the parental responsibility of the Minister – child placed in foster care – application for leave to appeal against refusal to grant permanent injunction restraining disclosure that child was in care – where applicant conceded at trial that the court was engaged in a "balancing exercise" between the child's interests and other competing interests – whether applicant can raise new arguments on appeal contrary to concession below –construction of strict liability offence for publication of child's name contrary to Children and Young Persons (Care and Protection) Act 1998, s 105 – whether primary judge's construction was arguably wrong – whether judge's exercise of discretion in refusing to grant injunction arguably miscarried. Legislation Cited: Children (Care and Protection) Act 1987 (NSW), s 68 Children and Young Persons (Care and Protection) Act 1998 (NSW), s 7, 8, 9(1), 24, 25, 27, 105, 120, 121, 122, 247 Court Suppression and Non-Publication Orders Act 2010 (NSW), s 8(1)(a)-(e) Supreme Court Act 1970 (NSW), s101(1)(r) Uniform Civil Procedure Rules, 2005 (NSW), r 42.1 Cases Cited: ACCC v Dataline.Net.Au Pty Ltd (in liq) and Ors (2007) 161 FCR 513; [2007] FCAFC 146 Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Cole v The Commonwealth of Australia and Others [1962] SR NSW 700 Colonial Mutual Life Assurance Society Ltd v Donnelly (1998) 82 FCR 418 Director-General, Department of Community Services; Re Thomas [2009] NSWSC 217 Director-General, Department of Community Services v Y [1999] NSWSC 644 House v R (1936) 55 CLR 499 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Kelly v British Broadcasting Corpn [2001] Fam 59 Lovell v Lovell (1950) 81 CLR 513 McMahon v Permanent Custodians Ltd [2013] NSWCA 275 Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 Re S (a child) (identification: restrictions on publication) [2003] EWCA Civ 963; [2004] Fam 43 Robb v Director General Department of Community Services & Ors [1999] NSWSC 754 S v McC (orse S) and M (DS intervenor); W v W [1972] AC 24 Secretary, Department of Family and Community Services v Smith [2017] NSWSC 6 Sharpe v Heywood [2013] NSWCA 192 The Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39; [1980] HCA 44 Waters v Pacific Publications Pty Ltd [1999] NSWSC 366 Category: Principal judgment Parties: Secretary, Department of Family and Community Services (Applicant) Allanna Smith (First Respondent) Walking Warriors 4 Missing Children (Second Respondent) Representation: Counsel: MW Anderson (Applicant) S Christie (First Respondent)