Re Bailey and Blake [2011] NSWSC 1390

Re Bailey and Blake [2011] NSWSC 1390

While the Care Act does not expressly preclude parties from privately commissioning expert reports in care proceedings, such assessment of children should not occur without the agreement of all persons holding parental responsibility or, in the absence of such agreement, without leave of the Court. Whether the Report is admissible must be reconsidered with reference to the existence and adequacy of such consent.

Parties
Plaintiff: Father of Bailey; First Respondent: Children's Court of New South Wales; Second Respondent: Director-General, Family and Community Services, Department of Human Services; Third Respondent: Mother of Bailey and Blake; Fourth Respondent: Father of Blake; Fifth Respondent: Independent legal representative of Bailey and Blake
Jurisdiction
Australia
Judgment Date
09 November 2011
Procedural Posture
Application for Judicial Review of Interlocutory Decision Regarding Evidence in Care Proceedings / Determination of Summons Seeking Declaratory Relief, Certiorari and Remittal Following Children's Court Interlocutory Evidentiary Ruling
Outcome
Orders by consent: The decision to admit the Foley Report is to be reconsidered by the Children's Court in light of the Supreme Court's reasons; the summons otherwise dismissed with no order as to costs.
Legal Topics
Care Proceedings, Admission of Expert Reports, Certiorari, Children and Young Persons (care and Protection) Act 1998 (nsw), Parental Consent for Assessment
Child Law Evidence Judicial Review Care Proceedings Admission of Expert Reports Certiorari Children and Young Persons (care and Protection) Act 1998 (nsw) Parental Consent for Assessment

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Parties

Father of Bailey

Plaintiff

Children's Court of New South Wales

First Respondent

Director-General, Family and Community Services, Department of Human Services

Second Respondent

Mother of Bailey and Blake

Third Respondent

Father of Blake

Fourth Respondent

Independent legal representative of Bailey and Blake

Fifth Respondent

Procedural Posture

Application for Judicial Review of Interlocutory Decision Regarding Evidence in Care Proceedings / Determination of Summons Seeking Declaratory Relief, Certiorari and Remittal Following Children's Court Interlocutory Evidentiary Ruling

Legal Issues

  1. 1 Whether admission into evidence of a privately commissioned parenting assessment report in Children's Court care proceedings infringed Chapter 5 Division 6 of the Children and Young Persons (Care and Protection) Act 1998 (NSW)
  2. 2 Whether lack of consent by persons with parental responsibility is a ground to exclude the report
  3. 3 Whether the report constitutes an assessment or expert opinion requiring compliance with statutory procedures

Ratio Decidendi

While the Care Act does not expressly preclude parties from privately commissioning expert reports in care proceedings, such assessment of children should not occur without the agreement of all persons holding parental responsibility or, in the absence of such agreement, without leave of the Court. Whether the Report is admissible must be reconsidered with reference to the existence and adequacy of such consent.

Court Disposition

Orders by consent: The decision to admit the Foley Report is to be reconsidered by the Children's Court in light of the Supreme Court's reasons; the summons otherwise dismissed with no order as to costs.

Orders

  • Record of the Children's Court proceeding be brought up to the Supreme Court.
  • The decision of the Children's Court to admit the Susan Foley report be reconsidered in accordance with law and in light of this Court's reasons.