A v Secretary, Family and Community Services (No 2)

The case of A v Secretary, Family and Community Services (No 2) involved the mother, A, challenging the decisions made by the Secretary of the Department of Family and Community Services in relation to proceedings in the Children’s Court. The dispute centred around the authority of the Secretary to seek certain orders concerning the care and supervision of the children. The matter was heard in the Supreme Court of New South Wales.

The legal issues that the court had to address included whether the orders sought by the Secretary, including those related to prohibition, declaration, and the day-to-day care of the children, were justified. Furthermore, the court needed to determine whether the Secretary had erred in law by misapplying the provisions of the Children and Young Persons (Care and Protection) Act 1998. The court was also required to consider whether the Secretary had acted without procedural fairness or had made an error apparent on the record.

The court ruled that the Secretary’s orders were not justified. It found that the Secretary had no authority to seek certain orders, particularly those that required the creation of documents rather than their production, which is outside the jurisdiction of the Children’s Court. The court held that the Secretary had not erred in law, as the Children’s Court does not have the role of calling or testing evidence, aligning with the Briginshaw standard. Moreover, the court found no denial of procedural fairness and no jurisdictional error. Consequently, the orders sought by the Secretary were refused.

The court's final orders were that the writ of prohibition, declaration, and injunction sought by the Secretary be refused. The court further held that the Secretary was not entitled to the relief sought in relation to the care and supervision of the children.