Re Tilly

The case of Re Tilly involved the plaintiff, a foster parent, seeking to prevent the removal of a child from their care by the Minister for Family and Community Services, who was responsible for child welfare under New South Wales legislation. The plaintiff contested the allegations of mistreatment and sought orders to maintain the status quo. The matter was heard in the Supreme Court of New South Wales.

The primary legal issues revolved around the extent of the court’s jurisdiction under parens patriae to intervene in child welfare matters, particularly in light of statutory obligations that mandate the removal of a child from care where there are allegations of mistreatment. The court had to determine whether it could make orders inconsistent with statutory obligations and whether it should exercise its parens patriae jurisdiction to override statutory requirements for the child’s protection.

The court held that the parens patriae power could not be used to dispense with statutory obligations, but it could be exercised in aid of statutory care responsibilities. The court acknowledged it had the power to make the child a ward and exercise its parens patriae jurisdiction to protect the child's welfare. However, it decided against exercising this jurisdiction, considering the child's best interests and the need to protect the child from harm. The court concluded that exercising its jurisdiction to prevent the removal of the child would circumvent the statutory child protection regime designed to safeguard children.

In addition, the court addressed the applicability of procedural fairness in the context of the Children’s Guardian's decision to impose an interim bar on the plaintiff's performance of child-related work. The court found that the decision was not subject to the rules of procedural fairness, as a specific review mechanism was prescribed under the Child Protection (Working with Children) Act 2012 through the New South Wales Civil and Administrative Tribunal.