A v Secretary, Family and Community Services (No 2) [2019] NSWSC 43

Supreme Court New South Wales

Medium Neutral Citation: A v Secretary, Family and Community Services (No 2) [2019] NSWSC 43 Hearing dates: 1 February 2019 Date of orders: 05 February 2019 Decision date: 05 February 2019 Jurisdiction: Common Law Before: Schmidt J Decision: Summons dismissed. Catchwords: ADMINISTRATIVE LAW – Judicial review – Parens patriae – Orders sought in relation to proceedings on foot in the Children's court and restoration supervision and parental responsibility of children – whether orders of prohibition and declaratory relief should be made – whether orders as to day to day care of child should be made – orders refused

ADMINISTRATIVE LAW – Judicial review – Grounds of review – Error on the face of the record – Children's Court has no role in calling or testing evidence – Briginshaw v Briginshaw [1938] HCA 34

ADMINISTRATIVE LAW – Judicial review – Grounds of review – Jurisdictional error

ADMINISTRATIVE LAW – Judicial review – Grounds of review – Denial of procedural fairness

FAMILY LAW AND CHILD WELFARE – Child welfare under State legislation – Children and Young Persons (Care and Protection) Act 1998 (NSW) , Div. 2 Pt 2 – Order requiring not the production of documents but their creation Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW) Civil Procedure Act 2005 (NSW) Evidence Act 1995 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 Director General of Department of Community Services; Re Sophie [2008] NSWCA 250 Re Alistair [2006] NSWSC 411 Re M (No 4) - BM v Director-General, Department of Family and Community Services (named Department of Community Services in Summons) [2013] NSWCA 97 Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 Category: Principal judgment Parties: A (First Plaintiff) B (Second Plaintiff) Secretary, Family and Community Services (First Defendant) Legal Aid NSW (Second Defendant) Children's Court of NSW (Third Defendant) Representation: Counsel: Mr P Singleton (First Defendant)