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) Solicitors: Crown Solicitor's Office (Applicant) File Number(s): 2017/54939 Publication restriction: No Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: General List Citation: [2017] NSWSC 6 Date of Decision: 23 January 2017 Before: Brereton J File Number(s): 2016/266559 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the judgment] The Secretary, Department of Family and Community Services (the Secretary) sought leave to appeal against an order dismissing proceedings brought by the Secretary seeking a permanent injunction restraining the respondents, Ms Allanna Smith and a group described as Walking Warriors 4 Missing Children, from publishing information conveying that the child the subject of this proceeding was placed in foster care; was under the parental responsibility of the Minister for Family and Community Services (the Minister); and/or is a ward of the State, as well as requiring certain posts to be removed from the Walking Warriors 4 Missing Children Facebook page. The child is identified in the proceeding by the pseudonym "Julian". Julian and his sister (identified by the pseudonym "Sarah") are both children in the care of the Minister. They were both placed with the same carers. Julian disappeared on 12 September 2014 and has not been seen since. A police investigation into Julian's disappearance continues and it is not known whether he is alive or dead. There was, and continues to be, widespread publicity regarding Julian's disappearance. However, the fact that Julian was in the Minister's parental responsibility and placed with foster carers at the time of his disappearance is not widely known to the public. Coverage of his disappearance has generally, and inaccurately, referred to Julian's carers as his parents. Ms Smith wishes to promote a coronial inquest into Julian's disappearance. She and other members of the group Walking Warriors 4 Missing Children, wish to circulate a petition and other online statements that would include information to the effect that Julian was in foster care and a State ward at the time of his disappearance. The primary judge found that the Court had power to make the orders sought by the Secretary in the exercise of the protective aspect of the court's inherent jurisdiction to make orders regarding children. In the exercise of that jurisdiction, the child's welfare is relevant but not paramount, and must be balanced against the competing rights and interests of others, including the public. Before the primary judge, the Secretary accepted that the court was engaged in a balancing exercise. The primary judge found that the proposed publications would deprive Julian of the ability to control who knew of his in care status, and could expose him to stigma. However, the primary judge also found that: (1) The adverse effect on Julian's welfare was diminished by (a) the tragic probability that he is dead; (b) if he is alive, the fact that Julian will face enormous challenges that substantially outweigh the stigma occasioned by publication; and (c) Julian's status is already in the public domain to the extent that it is discoverable on the internet; (2) The effect on Julian's carers was only relevant to the extent that it may have implications for Julian or Sarah, and the effect on Sarah's welfare, while relevant, was insufficient by itself to justify the injunction sought by the Secretary. (3) The proposed publications would have a neutral impact on the police investigation and the prospects of Julian being found. (4) There was a substantial public interest in accountability and scrutiny of the out-of-home care system and the relevant public officials and agencies, as well as in accurate reporting of the circumstances of Julian's disappearance. (5) Ms Smith had a right of free expression in connection with that public interest. The primary judge concluded that the balance of these interests favoured allowing the proposed publications and refused to grant the injunction. The primary judge also rejected the Secretary's alternative argument that the proposed publications would involve the commission of an offence within the meaning of Children and Young Persons (Care and Protection) Act 1998 (NSW), s 105, which prohibits the publication of the name of a child or young person who is the subject of Children's Court proceedings; or is likely to appear or otherwise be mentioned or involved in such proceedings, or in any non-court proceedings; or to be the subject of a report under certain provisions of that Act. The primary judge held that s 105 does not prohibit disclosure of the mere fact that a child is in care without mentioning any relevant care proceedings, or non-court proceedings or a report under the Act in which the child is mentioned or involved. The Secretary sought leave to appeal. The application raised three main issues: (1) Whether the primary judge should have approached the matter on the basis that Julian's best interests were paramount; (2) Whether the primary judge should have found that the injunction was justified because the proposed publications of a child's name involved the commission of an offence against Care and Protection Act, s 105; (3) Whether the primary judge's discretionary decision to refuse the injunction miscarried. On issue (1), the Court (Gleeson JA, Macfarlan JA and Payne JA agreeing) held: * The Secretary should not be permitted to raise a new argument on appeal that the child's interests were paramount, in circumstances where the Secretary had conceded before the primary judge that the court was engaged in a balancing exercise involving the interests of the child and other relevant interests. On issue (2), the Court held: * The primary judge's construction of Care and Protection Act, s 105 as applied to the facts of this case was not arguably wrong. On issue (3), the Court held: * The findings made by his Honour concerning the other relevant interests were open to him, and his Honour's exercise of discretion was not arguably wrong. Leave to appeal was refused. Judgment 1. MACFARLAN JA: I agree with Gleeson JA. 2. GLEESON JA: The applicant, the Secretary, Department of Family and Community Services (the Secretary) seeks leave to appeal against an order dismissing proceedings commenced by the Secretary seeking a permanent injunction restraining the respondents from publishing information conveying that the child the subject of this proceeding (a) has been placed in foster care; and/or (b) is under the parental responsibility of the Minister for Family and Community Services (the Minister); and/or (c) is a ward of the State or to similar effect; and commanding the respondents to remove from the Walking Warriors 4 Missing Children Facebook page any posts which convey those matters: Secretary, Department of Family and Community Services v Smith [2017] NSWSC 6. 3. As that order does not concern a matter involving a dispute of the value of $100,000 or more, the Secretary requires leave to appeal: Supreme Court Act 1970 (NSW), s101(2)(r). Factual background 1. The child, who is referred to in the proceeding by the pseudonym "Julian", disappeared on 12 September 2014 and has not been seen since. At the time of his disappearance, Julian was a child in the care of the Minister. He had been placed with carers, along with his sister, who is referred to in the proceeding by the pseudonym "Sarah". Julian is a foster child, or what is known under the legislation as a child in "out-of-home-care": Children and Young Persons (Care and Protection) Act 1998 (NSW) (Care and Protection Act), s 135. 2. It is not presently known whether Julian is alive or dead. A police investigation continues. There has been widespread publicity concerning Julian's disappearance. However, the fact that Julian was in the Minister's parental responsibility and placed with foster carers at the time of his disappearance is not widely known to the public. The publicity surrounding his disappearance has generally referred to the carers as Julian's parents. 3. The first respondent, Allanna Pearl Smith, describes herself as an advocate for children's rights and interests. She is a member of a group which posts to a Facebook page known as the "Walking Warriors 4 Missing Children". Ms Smith wishes to promote a coronial inquest into Julian's disappearance and to that end she and her associates wish to publish a petition and online statements, which would include information to the effect that Julian was in foster care and/or was a "State ward" at the time of his disappearance. 4. Although not a legal entity, "Walking Warriors 4 Missing Children" was named as the second defendant in the proceeding below, and the second respondent in this Court. It did not appear either below or in this Court. 5. The Secretary brought proceedings against the respondents seeking an injunction to restrain them from publishing the fact that Julian was placed in foster care under the parental responsibility of the Minister, or that he is a ward of the State, and requiring that certain posts be removed from a Facebook page. 6. Orders to that effect were made ex parte by the primary judge on 2 September 2016 until 7 September 2016 when the summons was first returnable. The orders were continued, on an interlocutory basis, until the hearing on 15 November 2016. On that date, his Honour continued the interim injunction until the delivery of his judgment, which was reserved. 7. On 23 January 2017, his Honour dismissed the Secretary's application for a permanent injunction and discharged the existing interlocutory injunction, to take effect from 6 February 2017. 8. Following an application by the Secretary for a stay pending appeal, on 3 February 2017, his Honour extended the interlocutory injunction (but only against the first respondent, Ms Smith) until the hearing of the appeal or further order of the Court, in the following terms: … 2. the first defendant be restrained from by herself her servants or agents further publishing, whether in writing or by internet or by any other electronic means, information conveying that the child: (a) has been placed in foster care or authorised care; and/or (b) is under the parental responsibility of the Minister for Family and Community Services; and/or (c) is a "ward of the State"; The Secretary's case below 1. The Secretary's primary case below was that the Court had power to make the orders sought in the exercise of its inherent parental – parens patriae – jurisdiction to act in the interests of those who are incapable of taking care of themselves. Reference was made by the Secretary to the description of the court's parental jurisdiction in Re S (a child) (identification: restrictions on publication) [2003] EWCA Civ 963; [2004] Fam 43 (Re S). 2. The Secretary pointed to four matters in support of making restraining orders against the respondents: (a) that identifying a child who is in foster care is likely to have a stigmatising effect on the child; (b) the probable impact the publication would have upon the child's sibling and foster family; (c) that the proposed publication has the potential to hinder the police investigation; and (d) that the public interest did not support the publication in the manner proposed by the respondents. 3. Counsel for the Secretary (who was not counsel who appeared in this Court), submitted before the primary judge that the court was engaged in a "balancing exercise" involving the interests of the child and other relevant interests. That was made plain by the following oral submissions by counsel for the Secretary: However, once detriment has been established, I also concede, … that after that detriment is established it is necessary for the court to perform a balancing exercise because it's not simply the wishes of a child and his family which are at issue in a situation where there has been, where the effect of the orders sought would be to constrain somebody's right to freedom of speech. So what your Honour will be doing in due course I submit will be balancing the detriment to [Julian] and to his family and to other aspects of [Julian's] best interests against the potential for a curtailment of Ms Smith and the other defendants' freedom of expression or freedom of speech. I just at the outset need to concede or make a concession. … I concede at the outset that this is a proper matter for this Court to be considering, that is the balancing exercise; … 1. The Secretary's alternative case below was that the Court could grant an injunction to restrain the commission of an offence pursuant to s 105 of the Care and Protection Act. This argument was only faintly pressed. In writing the Secretary accepted that in light of the decision of Studdert J in Waters v Pacific Publications Pty Ltd [1999] NSWSC 366 (concerning the predecessor provision to s 105), it was not clear that the publication by the respondents in the terms proposed would amount to the commission of a criminal offence. That concession recognised the force of Studdert J's reasoning in Waters concerning s 68 of the Children (Care and Protection) Act 1987 (NSW) (the 1987 Act) - that it could not have been the intention of Parliament to create an offence that would result simply from naming a child who happened to be the subject of care proceedings. 2. In oral argument before the primary judge, counsel for the Secretary frankly acknowledged that he did not "place a great emphasis" on this alternative argument. Counsel accepted that the decision in Waters remains good law in relation to the Care and Protection Act, s 105 and that Waters presented a difficulty in establishing an offence where the only act complained of is the identification of the child by name and that they are in foster care, because it appears from Waters that there needs to be more of a link with the care proceedings. Relevant statutory provisions 1. Part 1 of Ch 2 of the Care and Protection Act sets out the objects and principles of the Act. Section 7 makes plain that these provisions are "intended to give guidance and direction in the administration of the Act" and that "[t]hey do not create, or confer on any person, any right or entitlement enforceable at law". 2. Section 9 sets out the principles for the administration of the Care and Protection Act, and s 9(1) relevantly provides: (1) This Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount. 1. Section 105 of the Care and Protection Act relevantly provides: 105 Publication of names and identifying information (1) The name of a child or young person: (a) who appears, or is reasonably likely to appear, as a witness before the Children's Court in any proceedings, or (a1) who is involved, or is reasonably likely to be involved, in any capacity in any non-court proceedings, or (b) with respect to whom proceedings before the Children's Court are brought or who is reasonably likely to be the subject of proceedings before the Children's Court, or (c) who is, or is reasonably likely to be, mentioned or otherwise involved in any proceedings before the Children's Court or in any non-court proceedings, or (d) who is the subject of a report under ss 24, 25, 27, 120, 121 or 122, must not be published or broadcast in any form that may be accessible by a person in New South Wales whether the publication or broadcast occurs before any proceedings have commenced, during the proceedings or after they are disposed of. …… (5) The offence created by this provision is an offence of strict liability. The primary judge's reasons 1. The primary judge's reasons contain a careful analysis of the court's inherent jurisdiction to make orders restraining publication of information concerning a child. His Honour accepted that the court had power to make the orders sought by the Secretary in the exercise of the court's parental jurisdiction, but declined as a matter of discretion to restrain the proposed publications. 2. His Honour rejected the Secretary's alternative argument that the proposed publications would involve the commission of an offence under the Care and Protection Act, s 105. Accordingly, it was unnecessary for his Honour to consider whether this was an exceptional case in which an injunction would issue to restrain the probable commission of a criminal offence: The Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39; [1980] HCA 44 at [18] (Mason J). 3. It is convenient to set out in full his Honour's summary of his reasons and conclusions at [78]-[85], as follows: [78] The parental jurisdiction, under which orders restraining publication or disclosure of information concerning a child can be made, has both a custodial and a protective aspect. In the custodial aspect, which is related to the exercise of parental responsibility for the child, the child's welfare is paramount. This case does not engage the custodial aspect, because it is not related to parental responsibility. In the protective aspect, the child's welfare is relevant but not paramount, and must be balanced against the competing rights and interests of others, including the public. The protective aspect, though theoretically available, will not be exercised where the court is not exercising a supervisory role over some aspect of the child's care and upbringing and the proceedings are brought for the express purpose of seeking the injunctive relief; and the material to be published is not directly referable to the child or the manner of the child's upbringing. However, the protective aspect will be engaged and may be exercised to restrain publication of information concerning a child where the proposed publication would: (1) infringe a justiciable public or private right of the child; or (2) impinge adversely on the child's welfare, and refers directly to the child (or his or her carers); and/or (3) hinder the administration of justice in the wardship proceedings. [79] The proposed disclosure by Ms Smith would not infringe a justiciable public or private right of Julian, as s 105 of the Care and Protection Act does not prohibit disclosure of the mere fact that a child is in care. [80] The proposed disclosure refers directly to Julian. In-care status bears a stigma which children manage by closely controlling those whom they inform of their status. The proposed disclosure would impinge adversely on Julian's welfare, chiefly by depriving Julian of control over who is informed of Julian's in-care status. Accordingly the protective aspect of the jurisdiction is engaged, but it is necessary to balance the jeopardy to Julian's welfare against competing rights and interests. [81] Disclosure of Julian's status is likely to have a neutral impact on the investigation and the prospects of Julian being found. The significance of the potential jeopardy to Julian's welfare is diminished by (1) the tragic probability that Julian is no longer alive; (2) the circumstance that if found alive, Julian will likely have a significant public profile and many other and greater issues and stigmas associated with his disappearance, to which being known to be a child in-care will add relatively little; and (3) the circumstance that Julian's status is already in the public domain to the extent that it is discoverable on the internet. [82] The interests of the carers are relevant only to the extent that they may have implications for Julian or his sister Sarah. While the welfare of Sarah is relevant – and while it is possible that an order might be made for her protection, prohibiting publication of information that might lead to her identification as Julian's sister – no such order is sought, and the indirect connection between the proposed disclosure of Julian's status and her is insufficient to support the injunction that is sought. [83] That Julian disappeared while he was in the parental responsibility of the Minister, and in the care of departmentally approved carers, is a matter of legitimate public interest. Moreover, the truth has to date been obscured: the public has admittedly been given to think that Julian's carers are his parents. There is a substantial public interest in accountability and scrutiny of the out-of-home care system, and in accuracy of reportage of the circumstances of Julian's disappearance. [84] Ultimately, and tragically, the potential jeopardy to Julian's welfare, though real, is somewhat remote given the duration of the disappearance, and somewhat marginal given the other issues which Julian will have if found alive. And the information sought to be suppressed is already discoverable in the public domain, albeit that it is not widespread. As such, it is insufficient to trump the right of free expression, in connection with the accountability, in a democratic free society, of public officials and agencies in respect of the welfare of children in out-of-home-care, which is a matter of considerable legitimate public interest. [85] For those reasons, the application for an injunction should be dismissed, and the interlocutory injunction should be discharged. However, it is appropriate to defer the discharge of the interlocutory injunction, to allow the plaintiff an opportunity to consider these reasons and, if so desired, to apply for the continuation of the interlocutory injunction pending any appeal; and otherwise to allow the Minister, the carers and the police an opportunity to be briefed and to put in place strategies in preparation for the impending disclosure. Proposed grounds of appeal 1. The proposed grounds of appeal are essentially directed to three matters. The Secretary's written submissions also raised a fourth matter. 2. The first asserts that his Honour applied an incorrect approach to the exercise of the court's parental jurisdiction in treating the best interests of the child as a relevant, but not the paramount consideration. It was contended that his Honour erred because the child's best interests should have been afforded paramountcy. 3. The second asserts that his Honour should have found that the proposed publications would infringe the child's justiciable rights, in breach of the Care and Protection Act, s 105. 4. The third asserts, in the alternative to the first matter, that his Honour erred in the exercise of his discretion because it was not reasonably open to his Honour to hold that Ms Smith's right to free speech outweighed the child's welfare and other considerations. 5. The fourth matter asserts that the Court should have made an order under the Court Suppression and Non-publication Orders Act 2010 (NSW) of its own motion. Disposition of application 1. Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted: Sharpe v Heywood [2013] NSWCA 192 at [34]; McMahon v Permanent Custodians Ltd [2013] NSWCA 275 at [57]. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]. 2. The starting point is to observe that plainly, his Honour's decision to decline to grant injunctive relief was discretionary. Accordingly when considering whether there should be a grant of leave to appeal, the considerations identified in House v R (1936) 55 CLR 499 need to be kept in mind. See also Lovell v Lovell (1950) 81 CLR 513 at 518-519 and 532-533; Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 at 627. In House v The King at 504–5 the Court (Dixon, Evatt and McTiernan JJ) emphasised that the discretion must be exercised according to settled principle: It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court at first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. 1. These principles are applied to a wide range of discretionary judgments, including the refusal to grant final injunctive relief: ACCC v Dataline.Net.Au Pty Ltd (in liq) and Ors (2007) 161 FCR 513; [2007] FCAFC 146 at [115]. The paramountcy principle 1. Proposed grounds 1, 2, 6 and 7 challenge his Honour's approach that the child's welfare was a relevant, but not paramount consideration, and must be balanced against competing rights and interests. The Secretary submitted in this Court that the child's safety, welfare and well-being is the paramount consideration, and that his Honour erred in failing to apply that approach. 2. In support of this argument the Secretary submitted that the taxonomy of cases described by Lady Hale in Re S into those invoking the "custodial" aspect of the court's inherent jurisdiction and those invoking the "protective" aspects of its inherent jurisdiction, did not apply in this State. The Secretary pointed to the principle stated in the Care and Protection Act, s 9(1), and submitted that this provision reflected a broader application of the principle of paramountcy in this State. In oral argument the Secretary went so far as to submit that the principle in s 9(1) governed the exercise of the court's inherent parental jurisdiction. 3. As indicated at [78] of his Honour's summary of his reasons (see [22] above), his Honour accepted the distinction described in Re S between the "custodial" and "protective" aspects of the court's parental jurisdiction. He found that this case did not engage the "custodial" aspect of the court's parental jurisdiction (where the child's interests are paramount) because it did not concern the upbringing of the child or an exercise of parental responsibility for the child. While that finding is challenged by the Minister, in his alternative argument, the finding was clearly open. There is no merit in the Secretary's submission that the proposed publications put in issue the manner of Julian's upbringing. 4. Insofar as the Secretary challenges his Honour's finding that this case engaged the "protective" aspect of the court's parental jurisdiction (where the child's welfare was a relevant, but not paramount consideration), there is no arguable error. The distinction between the "custodial" and "protective" jurisdictions was recognised by the House of Lords in S v McC (orse S) and M (DS intervenor); W v W [1972] AC 24 (S v McC). That case concerned the ordering of blood tests with a view to determining the paternity of a child involved in divorce proceedings. The House rejected the argument that this was a matter of upbringing in which the child's interests (which might well be prejudiced by a finding that he was illegitimate) were paramount. Lord MacDermott at 47-48 and Lord Hodgson at 58 both recognised the distinction between the court's custodial jurisdiction, where the child's interests were paramount, and the court's protective jurisdiction, where the child's interests were relevant, but not paramount. 5. In Robb v Director General Department of Community Services & Ors [1999] NSWSC 754 at [10] – [11], Young J (as his Honour then was) accepted the distinction between the "custodial" and "protective" jurisdictions, citing S v McC. 6. In Re S (at [20]-[23]), Lady Hale reviewed S v McC and the line of subsequent cases which have accepted this distinction. Those cases included Kelly v British Broadcasting Corpn [2001] Fam 59, to which the primary judge referred (at [16]), in which Munby J described at [74] three established classes of case in which the Court might theoretically exercise parental jurisdiction to restrain publication in the media of information concerning a child. In the first class of case, the jurisdiction is not exercisable at all and the child is left to whatever remedies against the media the law would give an adult in comparable circumstances. In the second, the jurisdiction is exercisable, but in circumstances where, because the Court is exercising only its 'protective' jurisdiction, the child's interests are not paramount and where a so-called balancing exercise has to be performed. The third is where the Court is exercising its 'custodial' jurisdiction; there the child's interests are paramount. 7. His Honour found (at [30]) that, in deciding whether to exercise the jurisdiction in the second category of case, it is appropriate to consider: (1) whether the proposed publication is otherwise lawful, or whether it would infringe justiciable rights of the child; (2) the interests of the child, and to what extent the child's welfare would be jeopardized by the proposed publication; and (3) other relevant interests, including the competing interest in freedom of expression and discussion. 1. His Honour continued (at [31]): Accordingly, in this case it is open to exercise the jurisdiction to restrain publication, but Julian's interests, though relevant, are not paramount: they must be balanced with other relevant interests, most relevantly freedom of expression, and, in the context of this case, the public interest in the operation of and in scrutiny of the out-of-home-care system. 1. Insofar as the Secretary contended that this reasoning disclosed error because the paramountcy principle stated in the Care and Protection Act, s 9(1) governed the exercise of the court's "protective" jurisdiction, that argument conflated the relief sought by the Secretary under the court's parental jurisdiction, with the manner in which the Care and Protection Act is to be "administered", as to which the principle stated in s 9(1) is "intended to give guidance and direction". The parental – parens patriae – jurisdiction of the court does not arise under the Care and Protection Act; it is part of the court's inherent jurisdiction: Care and Protection Act, s 247; Director-General, Department of Community Services; Re Thomas [2009] NSWSC 217 at [22] (Brereton J); see also Director-General, Department of Community Services v Y [1999] NSWSC 644 at [89] (Austin J) regarding similar provisions in previous legislation. 2. The grant of leave to appeal is discretionary. The argument based on the paramountcy principle was not put below, and at least by inference, the contrary was accepted below by the Secretary. The Secretary is bound by the concession made below that the court was engaged in a "balancing exercise" when determining whether to grant an injunction to restrain the proposed publications. That concession is directly inconsistent with the way in which the Secretary now seeks to frame his case. 3. It is well established that "[e]xcept in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so": Metwally v University of Wollongong (1985) 60 ALR 68 at 71; [1985] HCA 28. 4. The Secretary did not point to any exceptional circumstances why he ought to be permitted to advance this new point on appeal. It would be unfair, in my view, to permit the Secretary to now argue, contrary to the argument advanced below, that his Honour was bound to give effect to the so-called paramountcy principle. 5. Further and importantly, the new point was not fully argued in this Court after counsel for the Secretary accepted that he was bound by the concession made below that the court was engaged in a "balancing exercise". In the absence of full submissions on this point, and given the potential impact on other parties, it is not appropriate to grant leave in respect of this point. Care and Protection Act, s 105 1. Proposed grounds 1, 2, 4 and 5 seek to challenge his Honour's construction of the Care and Protection Act, s 105. Other than to emphasise certain textual differences between the Care and Protection Act, s 105 and the predecessor provision - s 68 of the 1987 Act - the Secretary did not identify any relevant error in his Honour's approach to the construction of s 105 of the Care and Protection Act. 2. In Waters v Pacific Publications Pty Ltd, Studdert J held that the offence created by s 68 of the 1987 Act was not one of strict liability and that the provision was not to be given such a broad construction as to create an offence in the case of a publication of the name of a child in care where there was no specific reference to the care proceedings concerned. 3. The primary judge observed that s 105 of the 1998 Act was in similar, but not identical, terms to s 68 of the 1987 Act – relevantly, s 105 now specifically provides that the offence is one of strict liability and extends in some respects the scope of the prohibition. Nevertheless, his Honour held that s 105 did not remove the requirement for some nexus between identification of the child and pending, contemplated or completed proceedings (or non-court proceedings or a relevant report). 4. His Honour agreed with the observation of Studdert J in Waters v Pacific Publications Pty Ltd that it obviously cannot have been the intention of the legislature to make it an offence simply to publish the name of a child who has been involved in relevant proceedings, although taken out of context and literally, the provision would admit such a construction. That construction was supported, his Honour noted, by the incorporation of strict liability into an offence under s 105. His Honour concluded at [40] – [41]: [40] Accordingly, there is no contravention of s 105 where the publication in question does not refer to any proceedings, non-court proceedings or report of the kind mentioned in the various subparagraphs of s 105(1). As in Waters a mere reference to the fact that the child was in foster care did not import such a reference, so in the present case a statement to the effect that Julian was under the parental responsibility of the Minister and/or in foster care, without reference to any proceedings of the relevant kind, would not do so. [41] It follows, in my judgment, that no contravention of s 105 would be involved in merely disclosing that at the time of his disappearance Julian was under the parental responsibility of the Minister and/or in foster care. The proposed disclosure would thus not be unlawful, and would not infringe any justiciable legal right of Julian. 1. Section 105 is contained in Chapter 6 of the Care and Protection Act, which deals with Children's Court Procedure. The mischief to which the Chapter is directed, is the protection of the identity of a child or young person who is the subject, or is likely to be the subject, of such proceedings, or who appears, or is likely to appear in such proceedings, or who is, or is likely to be mentioned or otherwise involved in such proceedings, or in any non-court proceedings, or who is the subject of a report under ss 24, 25, 27, 120, 121 or 122 of the Care and Protection Act. 2. As his Honour correctly recognised, that s 105 now creates a strict liability offence strongly supports the view that s 105 cannot have been intended to prevent the publication of the name of any child about whom care proceedings have been taken or a report has been prepared, absent reference to those proceedings or such a report. I am not persuaded that his Honour's construction of s 105 as applied to the facts of this case is arguably wrong. The exercise of discretion 1. Proposed grounds 3, 4, 5, and 7 each challenge his Honour's discretionary decision to decline to grant a permanent injunction against the respondents restraining the proposed publications. These grounds assert that his Honour either failed to take into account relevant matters, or complain about the weight given by his Honour to relevant matters. 2. Proposed ground 3 asserts that his Honour erred in holding that the impact of disclosure of Julian's status on the police investigation is likely to be "neutral", given the evidence of Detective Chief Inspector Jubelin. The Secretary emphasised that this evidence was unchallenged and untested and submitted that it ought to have been accepted. 3. His Honour was not persuaded that disclosure of Julian's status would hinder the police investigation and gave a number of reasons why he found the opinion and reasoning of the Det Chief Inspector unconvincing (at [54]): … While there is nothing to suggest that disclosure of Julian's legal status would in any way add value to or enhance the investigation, or otherwise assist in finding Julian – indeed Ms Smith, when asked, was unable to suggest any way in which it would do so – I am quite unpersuaded that it would hinder it. In particular, it does not explain why it was decided at the outset not to reveal Julian's status, beyond that the strategy took into account the views of FACS; nor why it was decided to allow the carers to be represented as Julian's parents; in the absence of any such explanation I can only infer that it was not for some strategic purpose associated with the investigation. While there are vague general suggestions that release of the information could be used to achieve strategic objectives, the evidence does not illuminate how it might do so, and I have not been able to imagine a way in which it would. The notion that the efforts of trained and experienced police investigators might be distracted – presumably by an influx of pseudo-information in the nature of rumour and speculation – is quite unconvincing. The idea that it has the potential to shift the focus of "the public" is too vague, non-specific and amorphous to be of any weight. In my view, despite the evidence of the Detective Chief Inspector, the impact of disclosure of Julian's status on the investigation and the prospects of Julian being found is likely to be neutral, but not negative. 1. Notwithstanding that the evidence of the Detective Chief Inspector was not directly challenged or otherwise contradicted by witnesses called by Ms Smith, his Honour was entitled not to give that evidence much weight for the reasons he gave: Cole v The Commonwealth of Australia and Others [1962] SR NSW 700 at 704; Colonial Mutual Life Assurance Society Ltd v Donnelly (1998) 82 FCR 418 at 436. 2. Proposed ground 4 asserts that his Honour erred in characterising Julian's status as a legitimate subject of public interest. That contention ignores that his Honour carefully considered the (1) private interest of Ms Smith in being able to do what she is otherwise entitled to do in a free society, namely to speak of, discuss and disclose truthful non-defamatory matters known to her, in respect of which she is bound by no obligation of confidentiality, and (2) the public interest in freedom of expression and discussion, in particular in connection with the out-of-home-care system. 3. His Honour found (at [75]), that there is a substantial public interest in accountability and scrutiny of the out-of-home-care system, and in the accuracy of the reporting of the circumstances of Julian's disappearance. The Secretary did not directly challenge this finding. His Honour further found that the fact that Julian disappeared while he was in the parental responsibility of the Minister, and in the care of Departmentally-approved carers, is a matter of legitimate public interest: at [83]. That finding was open to his Honour. 4. Proposed ground 5 asserts that his Honour disregarded the interests of Julian's sister, who was also a child in care. Again, that contention ignores his Honour's reasons. His Honour gave careful consideration to the potential impact on Julian's sister, Sarah, of disclosure of Julian's in-care status. His Honour accepted that Sarah's interests and welfare were relevant because she is a child, in the Minister's parental responsibility, to whose protection the Court's jurisdiction extends: at [62]. He found that whilst Sarah has interests which may support some form of protection for her, they do not include preventing the disclosure of Julian's in-care status. That finding was open to his Honour. 5. Proposed ground 5 also asserts that his Honour erred in disregarding the interests of Julian's carers. Again this ignores his Honour's reasons. His Honour accepted that the interests of the carers were not irrelevant, although they are not in the protection of the Court, because an impact on them may have consequences, direct or indirect, for the welfare of Sarah, whose interests are relevant: at [63]. His Honour found that the stated concerns of the carers, though no doubt genuinely held, overstated the significance of disclosure of Julian's in-care status. That finding was open to his Honour. 6. Proposed ground 7 challenges the weight given by his Honour to the potential for Julian's welfare to be jeopardised by the proposed publications. The Secretary submitted that his Honour's finding that it is likely to be stigmatising for a child to be known to be in the parental responsibility of the Minister and that this is a negative impact on Julian's welfare was a significant factor in favour of an injunction, while the impact of an injunction upon Ms Smith's right to freedom of expression would be minimal. 7. His Honour found (at [52]) that the negative impact on Julian's welfare, which he accepted weighed in favour of the relief sought by the Secretary, has to be placed in context, in order to appreciate its significance. He continued (at [52]): … Julian has been missing – presumably abducted – for some years. Foremost of Julian's interests in the present circumstances is being found. If publication of information about Julian's in-care status were likely to be of any assistance in the investigation, that would be practically decisive of the application: Julian's interest in being found would outweigh any potential for later stigma arising from disclosure of Julian's status, if it were likely somehow to enhance the prospects of his being found. 1. No specific error is alleged in relation to this finding. It was not suggested by the Secretary that in balancing Julian's interests with other relevant interests, his Honour's decision was unreasonable or plainly unjust. No arguable error has been demonstrated. 2. One further matter should be mentioned. There is no merit in the Secretary's complaint that his Honour erred in holding that, as Julian would have to cope with other significant difficulties if found alive, the additional detriment he would suffer by being known as a child in care would "add little" or be "somewhat marginal". The Secretary acknowledged so much below when his counsel accepted that if Julian is found, "the fact that he may or may not have been identified as being in foster [care] is going to be the least of his concerns". The Secretary adhered to that concession in this Court. It was well open to his Honour to find (at [55]): Whether Julian is alive is unknown, but sadly the probability of Julian being found alive continues to decrease with the passage of time. Tragically, but conformably with the evidence that the investigation is being conducted as a homicide investigation, the probabilities are that Julian is no longer alive. If found alive, Julian will face many issues and challenges, most of them probably larger and more challenging than the stigma associated with being a child in care. I am conscious that, for a child who will probably already be traumatised, coping with the status of being in care will be yet an additional challenge for an already heavily burdened child. However, Julian will have to cope with that status in any event; disclosure will mean only that he will not have control over who may know of it. If found, there is likely to be extensive media coverage of Julian's disappearance and discovery, which will define Julian's profile – and for which Julian will be far more widely known – than will knowledge of his in-care status. In other words, because of these events, if found, Julian will not easily be able to escape exposure to attention and comment. Being known to be a child in-care will add little. This reduces its significance, as Hale LJ indicated in Re S: at [59]: These considerations may be helpful in thinking carefully about the extent of the interference or limitation proposed and the necessity for each. A comparatively small additional harm to a child who has already suffered so much may not be a sufficient reason to limit reporting of such an important trial. … 1. In my view, the Secretary has not demonstrated that his Honour's exercise of discretion is arguably wrong. Suppression and non-publication order 1. In writing, the Secretary submitted that the Court below of its own motion should have made a suppression and non-publication order under sub-section 8(1)(a) and (e) of the Court Suppression and Non-Publication Orders Act 2010 (NSW). The Secretary also submitted that it is possible that when he is found, that Julian will be a witness for the prosecution of a number of offences, which may include those of a sexual nature, including acts of indecency thereby attracting the operation of sub-section 8(1)(d) of the Act. 2. There is no ground of appeal directed to this complaint. No submission was made before the primary judge, in writing or at the hearing, that a suppression and non-publication order should be made under s 8(1) of the Court Suppression and Non-Publication Orders Act. Nor was any oral argument directed to this matter in this Court. This complaint may be taken not to be pressed by the Secretary. Conclusion and Orders 1. As the proposed grounds of appeal do not identify any respect in which the primary judge was arguably wrong in dismissing the Secretary's application for injunctive relief, the application for leave to appeal should be refused. There is no reason why costs should not follow the event: Uniform Civil Procedure Rules, 2005 (NSW), r 42.1. 2. I propose the following orders: 1. Dismiss the summons seeking leave to appeal. 2. Order the applicant to pay the first respondent's costs of that summons. 1. PAYNE JA: I agree with Gleeson JA. ********** Amendments 16 May 2018 - [3] - amend "s 101(1)(r)" to read "s 101(2)(r)". [30] - amend "[151]" to read "[115]". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 May 2018