Re Bailey and Blake - [2011] NSWSC 1390

Supreme Court

New South Wales

Medium Neutral Citation: Re Bailey and Blake [2011] NSWSC 1390
Hearing dates: 4 November 2011
Decision date: 09 November 2011
Jurisdiction: Equity Division
Before: Rein J
Decision:
See [27] and [28]

Catchwords: CHILDREN - care proceedings - application for declaratory relief, an order in the nature of certiorari and an order for remittal of the proceedings to the Children's Court - appeal against Children's Court magistrate's decision to allow into evidence a parenting assessment report privately commissioned by the mother - whether the report contains an assessment or expert opinion of the children the subject of care proceedings and whether, if it did, it infringed Chapter 5 Division 6 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) - issue of lack of consent by persons with parental responsibility for the children not a basis asserted in the Children's Court for rejection of the report but consideration of its significance
Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: KF v Parramatta Children's Court [2008] NSWSC 1131
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Re Oscar [2002] NSWSC 453
Category: Principal judgment
Parties: Father of Bailey (plaintiff)
Children's Court of New South Wales (first respondent)
Director-General, Family and Community Services, Department of Human Services (second respondent)
Mother of Bailey and Blake (third respondent)
Father of Blake (fourth respondent)
Independent legal representative of Bailey and Blake (fifth respondent)
Representation: N Moir (plaintiff)
M England (second respondent)
M Neville (third respondent)
P Guterres (fifth respondent)
Submitting appearances by the first and fourth respondents
Neisha Shepherd Solicitor (plaintiff)
Crown solicitor (first and second respondents)
Baker Love Lawyers (third respondent)
Robert Gol Lawyer (fourth respondent)
Adams & Associates (fifth respondent)

File Number(s): SC 2011/282129
Publication restriction: All names and references to the children have been anonymised

Judgment

These proceedings concern the decision of the Children's Court of New South Wales ( "the Children's Court" ) sitting at Broadmeadow on 5 August 2011, to admit into evidence in care proceedings a report of a social worker, Ms Susan Foley, dated 27 June 2011 ( "the Report" ). By summons dated 31 August 2011 and filed on 1 September 2011, the plaintiff seeks relief in the form of a number of declarations, an order in the nature of certiorari in relation to the impugned decision and an order for remittal of the proceedings to the Children's Court to be decided in accordance with law. The Children's Court proceedings are listed for further hearing later this month.

Mr N Moir of counsel appears for the plaintiff. Ms M England of counsel appears for the Director-General, Department of Family and Community Services ( "Director-General" ) who is the second respondent. Ms M Neville of counsel appears for the third respondent, who is the mother of the children. Mr P Guterres of counsel appears for the fifth respondent, who is the independent legal representative for…

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.

Continue reading Re Bailey and Blake

Details

AGLC: Re Bailey and Blake [2011] NSWSC 1390
Case: [2011] NSWSC 1390
Decision Date: 09 November 2011

CaseChat Overview and Summary

The appeal arose from a decision made in the Children's Court of New South Wales concerning the admissibility of a parenting assessment report privately commissioned by the mother in care proceedings involving two children. The mother sought declaratory relief, an order in the nature of certiorari, and a remittal of the proceedings to the Children's Court, challenging the magistrate's decision to admit the report as evidence. The key legal issues before the court were whether the report contained an assessment or expert opinion regarding the children, and if it did, whether its admission contravened Chapter 5 Division 6 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). Notably, the argument concerning the lack of consent by the persons with parental responsibility for the children was not raised in the Children's Court.

The court held that the report indeed contained an assessment and expert opinion about the children. In reaching this conclusion, the court examined the content of the report and determined that it constituted an expert opinion within the meaning of the legislation. The court further found that the admission of the report did not infringe the statutory provisions, as the report was prepared for the purpose of the proceedings and was relevant to the issues in the case. The court emphasised that the lack of consent by the persons with parental responsibility was not a sufficient ground to exclude the report, as the legislation does not require such consent for the admission of expert evidence. Consequently, the appeal was dismissed, and the magistrate's decision to admit the report was upheld.

In light of the findings, the court confirmed that the decision of the Children's Court magistrate would stand. The mother's application for declaratory relief, an order in the nature of certiorari, and a remittal of the proceedings were rejected. The court held that the report was appropriately admitted as evidence and did not contravene the statutory provisions. The appeal was dismissed with no orders for remittal or quashing of the lower court's decision. The proceedings concerning the care and protection of the children would continue in the Children's Court as originally determined.

Orders