Important cases — Experts’ reports

[3-1200] J & T v DCJ [2023] NSWDC 78

Last reviewed: June 2024

Care Act s 91 appeal by parents seeking restoration — trauma-informed approach to child care appeal — mother’s background included significant childhood trauma involving a history of incestuous rapes that occurred over a number of years, resulting in pregnancies and the birth of six children before she had reached the age of 16 years — two further children from her relationship with plaintiff father were also removed — departmental management of data on matters of child risk had a rigidity which could not be overridden by caseworkers and managers who came into possession of contrary information that ought to have served to dispel some crucial recorded departmental notions of risk — that rigidity perpetuated a risk assessment that was contrary to uncontroverted medical evidence and was not exposed at previous Children’s Court hearing — plaintiff father’s daughter made allegations of a sexual nature against her father — allegations incorrectly recorded as substantiated by the department — part of the Children’s Court clinician’s report lacks determinative weight due to reliance on these allegations — department erroneously reported that both parents had unmanaged mental health issues that needed a treatment plan — Children’s Court clinician's assessment as to plaintiffs' insights into mental health and child protection, understanding and acceptance of medical advice, physical disability, past parental instances of discordance and reactivity to service providers, safe and secure housing and mother’s Borderline Personality Diagnosis based on an outdated and incomplete assessment and do not form a reliable basis for refusing the parents’ claim for restoration — court does not accept Secretary’s submissions that the parents pose an unacceptable risk of harm to their children — realistic possibility of restoration and Secretary has not appropriately addressed permanency planning — department to prepare an Amended Care Plan.

Jones v Booth [2019] NSWSC 1066

Civil procedure — mental health — declaratory relief sought concerning qualifications of a psychologist to furnish a report in support of a s 32 Mental Health (Forensic Provisions) Act 1990 application — report rejected by magistrate as it was not a psychiatric report — report later accepted by different magistrate — application under s 32 later successful — type of report which may be appropriate will depend on particular case — court should consider the qualifications and expertise of author, together with report contents, to determine whether report should be admitted and what weight is given to it — conditions which fall within the definition of “cognitive impairment” are frequently reported on by psychologists — live controversy does not exist for grant of declaratory relief — declaration refused.

Department of Family and Community Services and the Jacobs children [2019] NSWChC 11

Care Act s 76(4) — supervision order made pursuant to s 76 — late filing of the supervision report — extension of time for filing of supervision report not permissible — finality of litigation and extinguishment of jurisdiction beyond date of the supervision order — parties to file draft Orders and matter relisted.

DFaCS and Amber [2019] NSWChC 10

Jurisdiction of Children’s Court — extension of time sought to file a s 82 report — the extension of time was made outside the 12-month period mandated in s 82(2)(a) — court may extend the date for the provision of the report, so long as that extension does not go beyond the 12-month period from the date of the Final Orders — court has no authority when the statutory time period has expired — parties to file any draft Minute of Order they wish court to consider within 14 days and the matter will be relisted.

Secretary, Department of Family and Community Services v Hayward (a pseudonym) (2018) 98 NSWLR 599

Care Act ss 24, 29(1)(e), 29(1)(f)(ii) — s 29(1)(e) forbids use of compulsory process to produce or give evidence regarding contents of risk of significant harm report — no exception in criminal proceedings as s 29(1)(f)(ii) limits use to “proceedings relating to the report” — whether court in criminal case can compel disclosure of report makers’ identities — no power to order the Secretary to identify the maker of a report, nor to produce the unredacted reports, nor to provide information from which the identity of that person could be deduced — notice of motion dismissed.

Hayward v R (2018) 97 NSWLR 852

Care Act s 29(1)(d)(iii) — whether reports made to DFaCS admissible in criminal proceedings in Supreme Court — the phrase “in relation to” limits the scope of s 29(1)(d)(iii) to proceedings which affect the legal rights and interests of a child or young person in proceedings which concern their welfare — subpoena material which the applicant sought to admit is not admissible in the present proceedings in the Supreme Court — appeal dismissed.

R v Hayward [2017] NSWSC 1170

Care and protection — offences relating to physical abuse of a child — accused seeks to rely on subpoenaed material from the Department about mother’s history of inflicting injuries on the child/children — s 29 Care Act provides reports only admissible for limited proceedings in the Supreme Court — accused argued application to criminal proceedings in the Supreme Court — Second Reading Speech consulted and where reports are admissible intended to be “child welfare proceedings” — criminal proceedings do not fall within s 29(1)(d) even if the victim was a child — held s 29(1) report is not admissible in criminal proceedings in the Supreme Court.