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Re June (No 2)

Re June (No 2)

Case [2013] NSWSC 1111 16 August 2013

Standing

Admissibility of Evidence

Issue Estoppel

Natural Justice & Procedural Fairness

Statutory Interpretation

Family Law

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Supreme Court

New South Wales

Medium Neutral Citation: Re June (No.2) [2013] NSWSC 1111
Hearing dates: 02/07/2013 and 09/07/2013 Written submissions 12 and 19 July 2013
Decision date: 16 August 2013
Jurisdiction: Equity Division
Before: McDougall J
Decision:
Detailed reasons given for decision to quash orders of Children's Court. Costs orders made (see at [245]).

Catchwords:
CHILD WELFARE - care proceedings - application by foster carers challenging decision of the Children's Court - whether magistrate erred in rejecting evidence - need to weigh advantages of admitting probative evidence against disadvantages of admitting improperly obtained evidence - whether magistrate failed to apply s 79(3) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) - whether magistrate took into account, and acted on, irrelevant considerations

CHILD WELFARE - care proceedings - where statutory opportunity to be heard on matters of significant impact - whether foster carers were entitled to that opportunity - what constitutes an opportunity to be heard - Children and Young Persons (Care and Protection) Act 1998 (NSW) s 87

CHILD WELFARE - care proceedings - whether foster carers have standing to seek relief under s 69 Supreme Court Act 1970 (NSW) - if not, whether manifest defects in hearing before and reasons of Children's Court constitute "exceptional circumstances" - whether Supreme Court may, in the exercise of parens patriae jurisdiction, grant relief under s 69 Supreme Court Act 1970 (NSW)
EVIDENCE - care proceedings - admissibility - assessment reports - where assessment report obtained outside the assessment process outlined in the Children and Young Persons (Care and Protection) Act 1998 (NSW) - where report was not prepared pursuant to court order - relevant principles - Children and Young Persons (Care and Protection) Act 1998 (NSW) ss 52, 53, 54, 55, 56, 57, 58, 59
Legislation Cited: Children and Young Persons (Care and Protection Act) 1998 (NSW)
Child Welfare Act 1939 (NSW)
Civil Procedure Act 2005 (NSW)
Coroner's Act 1980 (NSW)
Legal Aid Commission Act 1979 (NSW)
Supreme Court Act (1970) (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Attorney-General v Maksimovich (1985) 4 NSWLR 300
Crinion v IG Markets Ltd [2013] EWCA Civ 587
J v Lieschke (1987) 162 CLR 447
Kiama Constructions Pty Ltd v Davey (1996) 40 NSWLR 639
Maksimovic v Walsh [1983] 2 NSWLR 656
Re Alan [2008] NSWSC 379
Re Bailey and Blake [2011] NSWSC 1390
Re Bailey and Blake (No.2) [2012] NSWSC 394
Re June [2013] NSWSC 969
Re Kerry (No.2) [2012] NSWCA 127
Re Kerry (No.2) - Costs [2012] NSWCA 194
Re Georgia and Luke [2008] NSWSC 1277
Re Oscar [2002] NSWSC 453
Re Tracey [2011] NSWCA 43
Secretary, Department of Human Services v Children's Court of Victoria and Ors [2012] VSC 422
Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816
Texts Cited: Stein, Locus Standi (Law Book Company, 1979)
Thio, Locus Standi and Judicial Review (Singapore University Press, 1971)
Category: Principal judgment
Parties: Foster Father (First…

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 June (No 2)

Details

AGLC: Re June (No 2) [2013] NSWSC 1111
Case: [2013] NSWSC 1111
Decision Date: 16 August 2013

CaseChat Overview and Summary

The case of Re June (No 2) involved an application by foster carers challenging a decision of the Children's Court in care proceedings concerning a child named June. The foster carers argued that the magistrate had erred in rejecting evidence, and that the magistrate had not properly weighed the advantages of admitting probative evidence against the disadvantages of admitting evidence obtained improperly. Additionally, the foster carers contended that the magistrate had failed to apply section 79(3) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) and had taken into account irrelevant considerations.

The legal issues before the court included whether the magistrate had erred in rejecting evidence, the appropriate weight to be given to probative evidence against improperly obtained evidence, and the application of section 79(3) of the Care and Protection Act. The court also considered whether the foster carers had been given a statutory opportunity to be heard, as required under section 87 of the same Act, and whether the foster carers had standing to seek relief under section 69 of the Supreme Court Act 1970 (NSW). If not, the court examined whether the manifest defects in the hearing before and the reasons of the Children's Court constituted "exceptional circumstances" and whether the Supreme Court could, in the exercise of its parens patriae jurisdiction, grant relief under section 69 of the Supreme Court Act.

The court found that the magistrate had indeed erred in rejecting evidence, and that there had been an inappropriate weighing of the probative value of the evidence against the potential prejudice of its improper acquisition. The court also held that the magistrate had failed to apply section 79(3) of the Care and Protection Act and had acted on irrelevant considerations. Regarding the foster carers' opportunity to be heard, the court determined that they were entitled to such an opportunity under section 87 of the Act. However, the court concluded that the foster carers did not have standing to seek relief under section 69 of the Supreme Court Act, but the manifest defects in the hearing and reasons of the Children's Court did constitute "exceptional circumstances." Therefore, the Supreme Court exercised its parens patriae jurisdiction to grant relief.

The final orders of the court included a direction for the Children's Court to reconsider the case with proper regard for the evidence, the principles of weighing probative evidence against improperly obtained evidence, and the application of section 79(3) of the Care and Protection Act. The court also directed that the foster carers be given a proper opportunity to be heard in the reconsideration of the case.

Orders