Re: A Foster Carer v Department of Family & Community Services [2017] NSWDC 360

Re: A Foster Carer v Department of Family & Community Services [2017] NSWDC 360

The care agency final investigation report was deeply flawed, incomplete, unbalanced and unreliable, and its adverse findings against the appellant were made without adequate evaluation of exculpatory material or procedural fairness. Because that report underpinned the Children's Court orders, those orders had to be rescinded. On the evidence, there was no reasonable basis for concluding that return of the child to the appellant would create an unacceptable risk of physical, psychological or developmental harm, particularly with the appellant's proposed undertakings and supervision by FACS. The child's paramount best interests were best served by restoration to the care of the appellant,...

Jurisdiction
Australia
Judgment Date
15 December 2017
Procedural Posture
Child Care Appeal by Summons Pursuant to S 90(1) of the Children and Young Persons (care and Protection) Act 1998 / Appeal/fresh Hearing From Orders of the Children's Court at Ballina Made on 28 July 2017
Outcome
Appeal allowed. The orders of the Children's Court at Ballina made on 28 July 2017 were rescinded. Parental responsibility was to be allocated to the appellant upon undertakings and supervisory conditions, and FACS was required to prepare a fresh Care Plan.
Legal Topics
["rescission of Children's Court Care Orders" 'allocation of Parental Responsibility' 'paramount Best Interests of the Child' 'unacceptable Risk of Harm' 'procedural Fairness in Care Agency Investigation' 'reliability of Investigation Report' 'expert Evidence']
['child Care and Protection' 'administrative Law' 'evidence'] ["rescission of Children's Court Care Orders" 'allocation of Parental Responsibility' 'paramount Best Interests of the Child' 'unacceptable Risk of Harm' 'procedural Fairness in Care Agency Investigation' 'reliability of Investigation Report' 'expert Evidence']

Case Brief

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Procedural Posture

Child Care Appeal by Summons Pursuant to S 90(1) of the Children and Young Persons (care and Protection) Act 1998 / Appeal/fresh Hearing From Orders of the Children's Court at Ballina Made on 28 July 2017

Legal Issues

  1. 1 ["Whether the care agency final investigation report that underpinned the Children's Court decision was reliable." "Whether the Children's Court orders made on 28 July 2017 should be rescinded." "Whether returning the child to the appellant's care would create an unacceptable risk of harm." 'Whether parental responsibility for the child should be allocated to the appellant.']

Ratio Decidendi

The care agency final investigation report was deeply flawed, incomplete, unbalanced and unreliable, and its adverse findings against the appellant were made without adequate evaluation of exculpatory material or procedural fairness. Because that report underpinned the Children's Court orders, those orders had to be rescinded. On the evidence, there was no reasonable basis for concluding that return of the child to the appellant would create an unacceptable risk of physical, psychological or developmental harm, particularly with the appellant's proposed undertakings and supervision by FACS. The child's paramount best interests were best served by restoration to the care of the appellant,...

Court Disposition

Appeal allowed. The orders of the Children's Court at Ballina made on 28 July 2017 were rescinded. Parental responsibility was to be allocated to the appellant upon undertakings and supervisory conditions, and FACS was required to prepare a fresh Care Plan.

Orders

  • ['The appeal is allowed.' "Pursuant to s 90(1) of the Children and Young Persons (Care and Protection) Act 1998, the orders made by the Children's Court at Ballina on 28 July 2017 are rescinded." 'The Secretary, Department of Family and Community Services is to prepare a fresh Care Plan consistent with and...