AB & JB v The Secretary & Ors [2021] NSWDC 626

AB & JB v The Secretary & Ors [2021] NSWDC 626

The maternal grandparents have demonstrated a genuine, objectively grounded concern for the child's safety, welfare and wellbeing, which has not been adequately addressed by the current parties. Excluding them from the proceedings would deny procedural fairness and is contrary to the statutory framework prioritising the child's best interests and kinship placements. Concerns about delay or inter-family acrimony are insufficient to outweigh the need for their participation. Accordingly, the refusal of joinder is set aside and leave for them to be joined as parties is granted.

Parties
Appellants: Maternal grandfather and grandmother; First Respondent: Secretary, Department of Communities and Justice; Second Respondent: Mother; Third Respondent: Father; Fourth Respondent: Paternal grandfather; Fifth Respondent: Rene Forshaw (Independent Legal Representative)
Jurisdiction
Australia
Judgment Date
19 November 2021
Procedural Posture
Child Care Appeal (civil) / Appeal—hearing De Novo From Children's Court Refusal of Joinder
Outcome
Appeal allowed; application for joinder granted; matter remitted to Children's Court for further determination
Legal Topics
Joinder of Parties, Child Protection, Care and Protection Proceedings, Kinship Placements, Procedural Fairness
Child Law Civil Procedure Joinder of Parties Child Protection Care and Protection Proceedings Kinship Placements Procedural Fairness

Case Brief

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Parties

Maternal grandfather and grandmother

Appellants

Secretary, Department of Communities and Justice

First Respondent

Mother

Second Respondent

Father

Third Respondent

Paternal grandfather

Fourth Respondent

Rene Forshaw (Independent Legal Representative)

Fifth Respondent

Procedural Posture

Child Care Appeal (civil) / Appeal—hearing De Novo From Children's Court Refusal of Joinder

Legal Issues

  1. 1 Whether the maternal grandparents should be granted leave to be joined as parties to child care proceedings
  2. 2 Whether genuine concerns are held for the child's safety, welfare and wellbeing justifying joinder
  3. 3 Whether delay due to joinder is unacceptable

Ratio Decidendi

The maternal grandparents have demonstrated a genuine, objectively grounded concern for the child's safety, welfare and wellbeing, which has not been adequately addressed by the current parties. Excluding them from the proceedings would deny procedural fairness and is contrary to the statutory framework prioritising the child's best interests and kinship placements. Concerns about delay or inter-family acrimony are insufficient to outweigh the need for their participation. Accordingly, the refusal of joinder is set aside and leave for them to be joined as parties is granted.

Court Disposition

Appeal allowed; application for joinder granted; matter remitted to Children's Court for further determination

Orders

  • The order of the Children's Court at Campbelltown dated 21 July 2021 refusing the maternal grandparents' application for joinder is set aside.
  • Leave under s 98(3) Children and Young Persons (Care and Protection) Act 1998 is granted to the maternal grandparents to be joined as parties to the proceedings in the Children's Court.