Re Bailey and Blake No 2 - [2012] NSWSC 394

Supreme Court

New South Wales

Medium Neutral Citation: Re Bailey and Blake No 2 [2012] NSWSC 394
Hearing dates: 23 April 2012
Decision date: 27 April 2012
Jurisdiction: Equity Division - Protective List
Before: Ball J
Decision:
See paragraph 40 of this judgment.

Catchwords: ADMINISTRATIVE LAW - order in the nature of certiorari quashing the decision of a Children's Court magistrate - alleged error in admitting expert report independently obtained by party without consent to assessment by all parties with parental responsibility. CHILDREN - care proceedings - whether expert report independently obtained by a party is admissible - whether consent of all persons with parental responsibility necessary - paramountcy of the interests of the children the subject of the proceedings - need to balance principle that probative evidence should be admitted against principle that evidence should not be admitted in contravention of the law - appropriate to consider the requirement that Children's Court proceedings be conducted with as little formality and technicality as possible.
Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW)
Children Legislation Amendment (Wood Inquiry Recommendations) Act 2009 (NSW)
Evidence Act 1995 (NSW)
Supreme Court Act 1970 (NSW)
Cases Cited: Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11
Martin v Medical Complaints Tribunal [2006] TASSC 73
Re Bailey v Blake [2011] NSWSC 1390
Category: Principal judgment
Parties: Father of Bailey (Plaintiff)
Children's Court of New South Wales (First Defendant)
Director General Family and Community Services (Second Defendant)
Mother of Bailey and Blake (Third Defendant)
Father of Blake (Fourth Defendant)
Independent Legal Representative (Fifth Defendant)
Representation: PAR Santone (Plaintiff)
Ms MT England (Second Defendant)
Ms MB Neville (Third Defendant)
PJ Guterres (Fifth Defendant)
Neisha Shepherd Solicitor (Plaintiff)
Crown Solicitor's Office (Second Defendant)
Baker Love Lawyers (Third Defendant)
Adams and Associates (Fifth Defendant)

File Number(s): 2011/401623

Judgment

This is an application under s 69 of the Supreme Court Act 1970 (NSW) for an order in the nature of certiorari quashing the decision of a magistrate of the Children's Court to admit an expert report in proceedings (the Care Proceedings) for a care order under s 71(1) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Act) and for ancillary orders.

In the Care Proceedings, the Director-General of the Department of Family and Community Services seeks an order that the third defendant be divested of parental responsibility for her two children, who I will refer to by their anonymised names of Bailey and Blake, on the ground that, while in her care, they had been, or are likely to be, physically or sexually abused or ill treated. The expert report was obtained by the third defendant from Ms Susan Foley, a social worker. In her report, Ms Foley expresses opinions on, among other matters, the risks that would be posed in the future should Bailey and Blake be returned to the care of the third defendant or the fourth defendant, who is the biological father of Blake. The…

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 No 2

Details

AGLC: Re Bailey and Blake No 2 [2012] NSWSC 394
Case: [2012] NSWSC 394
Decision Date: 27 April 2012

CaseChat Overview and Summary

In this case, the matter was brought before the court regarding the care and welfare of a child, with the decision of a Children's Court magistrate being challenged. The primary issue that the court needed to address was whether an expert report obtained independently by one party, without the consent of all individuals with parental responsibility, could be admitted as evidence in the proceedings. The court was tasked with balancing the paramount interest of the child against the principles of fairness and procedural correctness in the admission of evidence.

The court examined the applicable statutory framework and case law to determine the admissibility of the contested report. It considered the overarching objective of Children's Court proceedings to be conducted with as little formality and technicality as possible, while also ensuring that probative evidence is admitted. The court found that the interests of the child were of paramount importance and that this principle must be balanced against the procedural fairness requirement that evidence should not be admitted in contravention of the law. The court concluded that while the expert report was of significant probative value, its admission without the consent of all parties with parental responsibility would not necessarily be a breach of procedural fairness, given the context of the proceedings.

Ultimately, the court found that the magistrate had erred in admitting the expert report without the consent of all parties with parental responsibility, and therefore quashed the decision. The court held that the interests of the child must be given paramount consideration, but this must be balanced with the principles of fairness and procedural correctness. The court directed the magistrate to conduct a fresh hearing, taking into account the admissibility of the expert report and the interests of the child.

Orders