An Adoptive Father v Minister for Family and Community Services [2019] NSWSC 878

Supreme Court New South Wales

Medium Neutral Citation: An Adoptive Father v Minister for Family and Community Services [2019] NSWSC 878 Hearing dates: 2 July 2019 Date of orders: 16 July 2019 Decision date: 16 July 2019 Jurisdiction: Equity Before: Slattery J Decision: The plaintiff's access to the materials sought on his notice to produce is denied. Catchwords: CIVIL PROCEDURE – Subpoenas – application to set aside – access to documents sought under notice to produce – two young persons were removed from the care of their father, the plaintiff, who had adopted them in an overseas country – the removal from the plaintiff took place under authority conferred by the Children and Young Persons (Care and Protection) Act 1998 and left the children under the care of the defendants, the Minster and the Department of Family and Community Services – grounds for removal were the plaintiff's violence and alleged sexual abuse towards them – plaintiff admits a non-sexual assault on one child and is indicted for trial for alleged sexual assault on one child – Presidential Children's Court proceedings confirmed the removal of the two children and ordered they be kept under the care and control of the Minister until the age of eighteen – the plaintiff brings an appeal from the President of the Children's Court to this Court – plaintiff issues notice to produce – plaintiff abandons any contention on the appeal to this Court that the children should be restored to his care – plaintiff confines his appeal to submissions that an early foster carer of the children ("the first foster carer") was unsuitable for the future care of the children and the children's placement planning is inadequate – the first foster carer was since replaced by the defendants with new carers ("the second foster carers") – the plaintiff does not challenge the continuation of the children's care by the second foster carer – on the appeal the plaintiff issues a notice to produce for documents concerning the children's care by the first foster carer – the defendants submit that the documents sought under the notice to produce are no longer relevant to the issues for trial – whether the plaintiff should be given access to the documents produced in accordance with the notice to produce. Legislation Cited: Children and Young Persons (Care and Protection) Act 1998, ss 7(a), 29(f), 78, 91 Children's Court Regulation 2014, r 5(1) Cases Cited: Alister v The Queen (1984) 154 CLR 404 ICAP Pty Ltd v Moebes [2009] NSWSC 306 ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115 R v Saleam (1989) 16 NSWLR 14 Rinehart v Rinehart [2018] NSWSC 1102 Trade Practices Commissioner v Arnotts Ltd (1989) 21 FCR 306 White v Tulloch (1995) 127 FLR 105 Category: Principal judgment Parties: Plaintiff: [not published]