Restrain Minister for Families, Community and Disability Services from removing Leonardo from the care of the plaintiffs on terms
Catchwords:
CHILD WELFARE — Parens patriae — Very young infant (30 months) placed with plaintiffs for prior 15 months — interim parental responsibility allocated to Minister — Minister and Secretary pursue transition plan for permanent placement with paternal uncle — Plaintiffs’ application for joinder to Children’s Court proceedings opposed and dismissed — Plaintiffs essentially desire permanent placement of infant child — Urgent hearing — infant to be removed within days — Restraining order made
PRACTICE — Parens patriae — Amended Summons makes reference to an independent children's lawyer (ICL) who has represented the interests of child in the Children's Court — ICL not named as a party as such — Nonetheless served with notice of application
CHILD WELFARE — Parens patriae — Nature of care and protection jurisdiction — Exceptional nature of jurisdiction where proceedings in Children’s Court and appeal decision of Magistrate refusing joinder of applicant to proceedings — Analogous approach to circumstance where applicants also challenge substantively seek to challenge decisions of Minister and Secretary regarding placement and transition plans
INTERPRETATION — What use can be made of extrinsic materials — Explanatory notes, second reading speeches, relevant material in the Hansard record of debates
[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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AGLC
Re Leonardo [2022] NSWSC 1265
Case
[2022] NSWSC 1265
Decision Date
CaseChat Overview and Summary
In the matter of Re Leonardo, the court was tasked with deciding the best permanent placement for a 30-month-old child who had been placed with the plaintiffs for the preceding 15 months. The interim parental responsibility for the child had been allocated to the Minister for Family and Community Services. The Minister and the Secretary were pursuing a transition plan that aimed to place the child permanently with the paternal uncle. The plaintiffs, who desired permanent placement of the child, opposed the Minister's and Secretary's plans and sought to be joined as parties in the Children's Court proceedings. Their application was dismissed. The matter required an urgent hearing as the child was scheduled to be removed from the plaintiffs' care within days. A restraining order was subsequently made.
The primary legal issues involved the court's parens patriae jurisdiction over child welfare matters and the nature of the care and protection jurisdiction, particularly in light of the Minister's and Secretary's proposed transition plan. The court had to determine whether the plaintiffs' application for joinder to the Children's Court proceedings was appropriate, given that the proceedings were already underway and a Magistrate had previously refused the plaintiffs' request to join. Additionally, the court needed to consider the substantive challenges the plaintiffs sought to make regarding the decisions of the Minister and Secretary concerning the child's placement and transition plans.
The court addressed these issues by first noting the exceptional nature of the care and protection jurisdiction, especially given the ongoing proceedings in the Children's Court and the prior refusal to join the plaintiffs. The court emphasised that the plaintiffs were essentially seeking to challenge the substantive decisions of the Minister and Secretary regarding the child's placement. The court then considered the principles of permanent placement under section 10A(3)(b) of the Children and Young Persons (Care and Protection) Act 1998 (NSW). The court also examined the use of extrinsic materials, including explanatory notes, second reading speeches, and relevant Hansard records, to interpret the statutory provisions. Ultimately, the court dismissed the plaintiffs' application for joinder and noted that the child was to be removed from the plaintiffs' care within days, issuing a restraining order accordingly.