AB and JB v The Secretary - [2021] NSWDC 626

District Court

New South Wales

Medium Neutral Citation: AB & JB v The Secretary & Ors [2021] NSWDC 626
Hearing dates: 15, 16 & 17 November 2021
Date of orders: 19 November 2021
Decision date: 19 November 2021
Jurisdiction: Civil
Before: Judge Levy SC
Decision:
1. The order made by the Children’s Court at Campbelltown on 21 July 2021 which refused the application by the maternal grandparents for leave to be joined to those proceedings, is set aside;
2. Pursuant to s 98(3) of the Children and Young Persons (Care and Protection) Act 1998, leave is granted to the maternal grandparents to be joined as additional parties to the proceedings that are presently before the Children’s Court at Campbelltown;
3. The proceedings are remitted to the Children’s Court at Campbelltown to be determined in accordance with Order (2) above;
4. The exhibits are to remain with the Court file;
5. Liberty to apply on 7 days’ notice if further or other orders are required.

Catchwords:
CHILD CARE APPEAL – appeal from the order of the Children’s Court refusing joinder of maternal grandparents in child care proceedings – refusal order set aside – leave granted for joinder

Legislation Cited:
Children and Young Persons (Care and Protection) Act 1998, s 3, s 9, s 10A, s 91, s 93, s 94, s 98, s 105, s 107(1)
Civil Procedure Act 2005 (NSW), s 58(2)

Cases Cited:
A v The Secretary, Family and Community Services [2015] NSWDC 307
Bell-Collins Children, Department of Family and Community Services [2015] NSWSC 701
D v C; Re B (No 2) [2018] NSWCA 310
EC v Secretary, NSW Department of Family and Community Services [2019] NSWSC 226
EL & WL v Director General of the Department of Human Services [2010] NSWDC 248

Category: Principal judgment
Parties: Maternal grandfather and grandmother (Appellants)
Secretary, Department of Communities and Justice (First respondent)
Mother (Second respondent)
Father (Third respondent)
Paternal grandfather (Fourth respondent)
Rene Forshaw (Independent Legal Representative – Fifth respondent)
Representation:
Counsel:
Ms R Dart (Appellants)
Mr J Harris (First respondent)
Ms L-M Saw (Second respondent)
Ms G Mahony (Fifth respondent)
Solicitors:
Stanfords (Appellants)
Crown Solicitor (First respondent)
Hansen Legal (Second respondent)
Marina Voncina (Third respondent)
Robert Tricca & Associates (Fourth respondent)
Forshaw Lawyers (Fifth respondent)

File Number(s): 2021/210664
Publication restriction: Non-publication order

Judgment

Table of Contents

Child care appeal

[1] – [6]

Non-publication order

[7]

Unexplained injuries to the child

[8] – [16]

Background and context

[17] – [46]

Evidence

[47] – [51]

The appealed decision of the Children’s’ Court

[52]

Care plan prepared by the Secretary

[53]

Further factual background

[54] – [56]

Applicable legal principles concerning joinder of parties

[57] – [66]

Issues

[67] – [68]

Evidence summary

[69] – [125]

Ms Sarah Brown

[70] – [82]

Evidence filed in the Children’s Court

[83] – [91]

Evidence filed in the appeal

[92] – [125]

Submissions of the parties

[126] – [135]

Issue 1 – Policy and legislative objectives

[136]

Issue 2 – Whether only limited leave should be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWDC 626
Decision Date: 19 November 2021

CaseChat Overview and Summary

AB and JB, maternal grandparents of a child, appealed a decision by the Children’s Court, arguing that the court should have granted them leave to be joined as parties in the child care proceedings. The court had previously dismissed their application, prompting this appeal. The grandparents contended that their inclusion was necessary for the court to consider their potential role in the child’s care and welfare.

The legal issues before the court involved interpreting the provisions of the Children and Young Persons (Care and Protection) Act 1998 and determining whether the court had erred in refusing the grandparents' application for joinder. Specifically, the court had to consider whether the grandparents had a legitimate interest in the proceedings and whether their involvement was in the best interests of the child.

In its decision, the court found that the Children’s Court had not adequately considered the grandparents’ application and had failed to properly weigh their potential role in the child’s care. The appellate court held that the grandparents had a legitimate interest in the proceedings and that their joinder was in the best interests of the child. Consequently, the order refusing the grandparents leave to join the proceedings was set aside, and leave was granted for them to be joined as additional parties. The case was remitted to the Children’s Court for further consideration in light of this decision.

Orders

Orders of the court

1. The order made by the Children’s Court at Campbelltown on 21 July 2021 which refused the application by the maternal grandparents for leave to be joined to those proceedings, is set aside;

2. Pursuant to s 98(3) of the Children and Young Persons (Care and Protection) Act 1998, leave is granted to the maternal grandparents to be joined as additional parties to the proceedings that are presently before the Children’s Court at Campbelltown;

3. The proceedings are remitted to the Children’s Court at Campbelltown to be determined in accordance with Order (2) above;

4. The exhibits are to remain with the Court file;

5. Liberty to apply on 7 days’ notice if further or other orders are required.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	AB & JB v The Secretary & Ors [2021] NSWDC 626
Hearing dates:	15, 16 & 17 November 2021
Date of orders:	19 November 2021
Decision date:	19 November 2021
Jurisdiction:	Civil
Before:	Judge Levy SC
Decision:	1. The order made by the Children’s Court at Campbelltown on 21 July 2021 which refused the application by the maternal grandparents for leave to be joined to those proceedings, is set aside; 2. Pursuant to s 98(3) of the Children and Young Persons (Care and Protection) Act 1998, leave is granted to the maternal grandparents to be joined as additional parties to the proceedings that are presently before the Children’s Court at Campbelltown; 3. The proceedings are remitted to the Children’s Court at Campbelltown to be determined in accordance with Order (2) above; 4. The exhibits are to remain with the Court file; 5. Liberty to apply on 7 days’ notice if further or other orders are required.
Catchwords:	CHILD CARE APPEAL – appeal from the order of the Children’s Court refusing joinder of maternal grandparents in child care proceedings – refusal order set aside – leave granted for joinder
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998, s 3, s 9, s 10A, s 91, s 93, s 94, s 98, s 105, s 107(1) Civil Procedure Act 2005 (NSW), s 58(2)
Cases Cited:	A v The Secretary, Family and Community Services [2015] NSWDC 307 Bell-Collins Children, Department of Family and Community Services [2015] NSWSC 701 D v C; Re B (No 2) [2018] NSWCA 310 EC v Secretary, NSW Department of Family and Community Services [2019] NSWSC 226 EL & WL v Director General of the Department of Human Services [2010] NSWDC 248
Category:	Principal judgment
Parties:	Maternal grandfather and grandmother (Appellants) Secretary, Department of Communities and Justice (First respondent) Mother (Second respondent) Father (Third respondent) Paternal grandfather (Fourth respondent) Rene Forshaw (Independent Legal Representative – Fifth respondent)
Representation:	Counsel: Ms R Dart (Appellants) Mr J Harris (First respondent) Ms L-M Saw (Second respondent) Ms G Mahony (Fifth respondent) Solicitors: Stanfords (Appellants) Crown Solicitor (First respondent) Hansen Legal (Second respondent) Marina Voncina (Third respondent) Robert Tricca & Associates (Fourth respondent) Forshaw Lawyers (Fifth respondent)
File Number(s):	2021/210664
Publication restriction:	Non-publication order

Child care appeal	[1] – [6]
Non-publication order	[7]
Unexplained injuries to the child	[8] – [16]
Background and context	[17] – [46]
Evidence	[47] – [51]
The appealed decision of the Children’s’ Court	[52]
Care plan prepared by the Secretary	[53]
Further factual background	[54] – [56]
Applicable legal principles concerning joinder of parties	[57] – [66]
Issues	[67] – [68]
Evidence summary	[69] – [125]
Ms Sarah Brown	[70] – [82]
Evidence filed in the Children’s Court	[83] – [91]
Evidence filed in the appeal	[92] – [125]
Submissions of the parties	[126] – [135]
Issue 1 – Policy and legislative objectives	[136]
Issue 2 – Whether only limited leave should be…