Re Christopher - [2017] NSWSC 318

Supreme Court

New South Wales

Case Name:	Re Christopher
Medium Neutral Citation:	[2017] NSWSC 318
Hearing Date(s):	14 July 2017
Date of Orders:	18 July 2017
Decision Date:	18 July 2017
Jurisdiction:	Equity
Before:	Rein J
Decision:	See [43]
Catchwords:	MEDIA AND COMMUNICATIONS — Publication — Non-publication order — Children and Young Persons (Care and Protection) Act 1998 (NSW) – These proceedings concern the publication of material concerning a child who was removed from the care of his parents in 2017. The Defendants published material concerning the child (including on Facebook) which identified the child as well as caseworkers and medical practitioners involved in the child’s treatment – the Court considered whether the material published by the Defendants breached s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) and breached orders made by the Children’s Court prohibiting publication of information that would identify the child, whether the Defendants failed to remove the material after being requested to do so, and whether this Court has the power to order the Defendants to remove the offending material and if it should exercise that power – Held: this Court has the power to order removal of the material and the Defendants were ordered to remove the offending material and were injuncted from any further publication.
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 (NSW) Court Suppression and Non-Publication Orders Act 2010 (NSW) Crimes Act 1900 (NSW) Supreme Court Act 1970 (NSW)
Cases Cited:	Last v Rosenfield [1972] 2 NSWLR 923 Re Alan (2008) 71 NSWLR 573 Re M v Department of Community Services (No 3) [2013] NSWSC 552 Re Victoria; Director-General, Dept Of Community Services V Children's Court (NSW) [2002] NSWSC 647; (2002) 29 Fam LR 157 Secretary, Department of FACS v Smith [2016] NSWSC 1384 and [2017] NSWSC 6 Secretary, Department of Health and Community Services v JWB and SMB (1991) 175 CLR 218
Texts Cited:	Heydon, Leeming and Turner, Meagher, Gummow, & Lehane’s Equity, (Lexis Asia Pacific)
Category:	Principal judgment
Parties:	Secretary, Department of Family and Community Services (Plaintiff) Paul Burton (First Defendant) Andrew Katelaris (Second Defendant)
Representation:	Mr C McGorey of Counsel (Plaintiff) Paul Burton (First Defendant) Andrew Katelaris (Second Defendant) Solicitors: Crown Solicitor for NSW (Plaintiff)
File Number(s):	2017/00214962
Publication Restriction:	Nil

JUDGMENT

These proceedings are brought by the Secretary of the Department of Family and Community Services (“FACS”) and concern a child whose name has been anonymised for the purpose of these proceedings, and to whom I shall refer to as “Christopher.” The defendants are persons who have published material concerning Christopher, which material I shall describe in more detail below.
Christopher is [Redacted]. He was removed from the care of his parents on [Redacted] pursuant to an order of the Secretary of FACS on the grounds that Christopher was “at immediate risk of serious harm”. [Redacted]
The order was issued pursuant to s 43(1) of the Children and Young Persons (Care and Protection) Act

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 Christopher

Details

AGLC: Re Christopher [2017] NSWSC 318
Case: [2017] NSWSC 318
Decision Date: 18 July 2017

CaseChat Overview and Summary

The case of Re Christopher involved the defendants who published material on social media that identified a child who had been removed from the care of their parents in 2017. The material included identifying information about the child, as well as the identities of caseworkers and medical practitioners involved in the child's treatment. The court was tasked with determining whether the defendants' actions breached section 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW), which prohibits the publication of information that could identify a child involved in care and protection proceedings. Additionally, the court considered whether the defendants had failed to remove the material after being requested to do so, and whether the court had the authority to order the removal of the material and to issue an injunction against further publication.

The legal issues before the court were whether the defendants' publication of the material breached the statutory provisions and the orders of the Children's Court, and if so, whether the court had the power to compel the removal of the material and to prevent further publication. The court examined the relevant statutory provisions and the orders made by the Children's Court, finding that the defendants' actions did indeed breach the statutory provisions and the orders. The court also considered the implications of the defendants' failure to remove the material after being requested to do so. The court concluded that it did have the power to order the removal of the material and to issue an injunction against further publication, and that it should exercise that power to protect the identity of the child and to comply with the statutory provisions and the orders of the Children's Court.

The court ordered the defendants to remove the offending material and to be enjoined from any further publication of material that would identify the child. The court found that the defendants' actions had breached the statutory provisions and the orders of the Children's Court, and that their failure to remove the material after being requested to do so was a further breach. The court emphasised the importance of protecting the identity of children involved in care and protection proceedings, and of complying with the statutory provisions and the orders of the Children's Court. The court also noted that it had the power to order the removal of the material and to issue an injunction against further publication, and that it should exercise that power to ensure that the statutory provisions and the orders of the Children's Court were complied with.

The final orders of the court were that the defendants were to remove the offending material and to be enjoined from any further publication of material that would identify the child. The court emphasised the importance of protecting the identity of children involved in care and protection proceedings, and of complying with the statutory provisions and the orders of the Children's Court. The court found that the defendants' actions had breached the statutory provisions and the orders of the Children's Court, and that their failure to remove the material after being requested to do so was a further breach. The court concluded that it had the power to order the removal of the material and to issue an injunction against further publication, and that it should exercise that power to ensure that the statutory provisions and the orders of the Children's Court were complied with.

Orders