Secretary, Department of Family and Community Services v Smith

(2017) 95 NSWLR 597; [2017] NSWCA 206

NSW Court of Appeal

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Interrogate

Catchwords

1. Family Law and Child Welfare
2. › Parens patriae jurisdiction
3. › Protective jurisdiction
4. › Injunction restraining publication of child's in-care status
5. › Whether child's best interests paramount or relevant but not paramount
6. › Balancing exercise between child's welfare and competing interests including freedom of expression and public interest
7. › Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 9(1), 105, 247
1. Practice and Procedure
2. › Leave to appeal
3. › Discretionary decision
4. › Whether decision attended with sufficient doubt to warrant reconsideration
5. › Whether applicant can raise new argument on appeal contrary to concession below
6. › Supreme Court Act 1970 (NSW), s 101(2)(r)
1. Statutes
2. › Construction
3. › Strict liability offence
4. › Publication of name of child involved in Children's Court proceedings
5. › Whether s 105 prohibits disclosure of mere fact that child is in care without reference to relevant proceedings
6. › Children and Young Persons (Care and Protection) Act 1998 (NSW), s 105

Quick Take

In the protective aspect of the parens patriae jurisdiction (as distinct from the custodial aspect), a child's welfare is relevant but not paramount and must be balanced against competing rights and interests including freedom of expression and public interest. Section 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) does not prohibit disclosure of the mere fact that a child is in care without reference to relevant proceedings, non-court proceedings or a report under the Act. The paramountcy principle in s 9(1) of the Act governs the administration of the Act, not the exercise of the court's inherent parens patriae jurisdiction.