Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Secretary, Department of Communities and Justice v KH [2021] NSWCA 308 Hearing dates: 6 December 2021 Date of orders: 13 December 2021 Decision date: 13 December 2021 Before: Macfarlan JA Decision: (1) Stay until the determination of the Secretary's judicial review proceedings Orders (2) and (5) made by Judge Levy in the District Court on 21 September 2021 and Orders (1) and (2) of his Honour's orders of 12 November 2021. (2) Dispense pursuant to s 14 of the Civil Procedure Act 2005 (NSW) with the appointment of a tutor for the fourth respondent BH. (3) Appoint Ms Leanne Wells, solicitor, as BH's independent legal representative. (4) Costs of the Secretary's notice of motion to be costs in the Secretary's judicial review proceedings. Catchwords: APPEALS – procedure – stay pending appeal – District Court decision on appeal in child care and protection proceedings – District Court found realistic possibility of restoration of child to mother and ordered preparation of amended care plan – Secretary seeking judicial review of District Court decision in Court of Appeal – motion by Secretary to stay District Court orders pending determination of judicial review application – stay granted Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 9(1), 10, 83(5) Civil Procedure Act 2005 (NSW), s 14 Supreme Court Act 1970 (NSW), ss 23, 69 Cases Cited: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 In the matter of Campbell [2011] NSWSC 761 JE v Secretary, Department of Communities and Justice (No 2) [2020] NSWCA 243 Newcrest Mining v Industrial Relations Commission (NSW) [2005] NSWCA 85 Nikolaidis v Legal Services Commissioner [2005] NSWCA 91 Re Henry [2015] NSWCA 89 RH v Secretary, Department of Communities & Justice [2021] NSWCA 101 Thomson v Young [2013] NSWCA 300 Category: Procedural rulings Parties: Secretary, Department of Communities and Justice (Applicant) KH (First Respondent) CS (Second Respondent) DH (Third Respondent) BH (Fourth Respondent) District Court of New South Wales (Fifth Respondent) Representation: Counsel: B Dean (Applicant) A Williams (First Respondent) Self-represented (Second Respondent) No appearance (Third Respondent) No appearance (Fourth Respondent) No appearance (Fifth Respondent) G Moore (Amicus Curiae) Solicitors: Crown Solicitor's Office (Applicant) Legal Aid Commission of NSW (First Respondent) L Wells (Amicus Curiae) File Number(s): 2021/321969 Publication restriction: Statutory prohibition on publication or broadcast arising under s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) Decision under review Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2021] NSWDC 498 Date of Decision: 21 September 2021 Before: Levy SC DCJ File Number(s): 2019/105176 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. By summons filed on 11 November 2021 the Secretary, Department of Communities and Justice sought judicial review in relation to a judgment of Judge Levy SC of the District Court of 21 September 2021 ([2021] NSWDC 498). The present judgment is concerned with a notice of motion filed by the Secretary in this Court on 24 November 2021 seeking a stay pending completion of the judicial review proceedings of certain of his Honour's orders. 2. Before Judge Levy was an appeal from a decision of the Children's Court of New South Wales concerning a child ("BH") who is the present fourth respondent and is aged 10. BH is the child of the first respondent mother ("KH") and the second respondent father ("CS"). KH is the daughter of DH who is the third respondent. The proceedings in the Children's Court and the District Court 1. Pursuant to orders made by the Children's Court on 4 March 2019 under the Children and Young Persons (Care and Protection) Act 1998 (NSW) ("the Care Act"), the child BH resides with his maternal grandmother, DH, who has parental responsibility for him for all aspects of his care except for contact, responsibility for which rests with the relevant Minister. The child BH commenced to live with the grandmother DH on 26 August 2017. 2. On 21 September 2021, after a hearing occupying some 19 days in the period August 2020 to May 2021, with final written submissions on 16 July 2021, Judge Levy allowed an appeal by the mother KH from the Children's Court's orders. In doing so, his Honour determined that there is a realistic possibility of the restoration of the child BH to the care of his mother KH and ordered the Secretary to prepare an amended care plan reflecting the reasons for his decision. The Secretary was initially directed to prepare the plan by 31 October 2021 but the date for its completion was subsequently extended to 8 December 2021. Judge Levy's decision 1. As his Honour's judgment is of substantial length, some 125 pages, it has not been possible to digest it fully in the limited time available to address the Secretary's notice of motion. For present purposes it is sufficient to refer to the following prominent aspects of it. 2. In paragraph [68] his Honour identified as follows six issues for his determination and his conclusion on each of them: 1. Whether the mother KH was denied procedural fairness in the Children's Court. His Honour held that she was. 2. What weight should be given to the child BH's wishes as recounted in the evidence. His Honour found that they were of "limited determinative significance". 3. Whether there was as at 4 March 2019 (the date of the Children's Court's decision) a realistic possibility of the child BH being restored to the care of the mother KH. His Honour gave a qualified affirmative answer to that question. 4. Whether at the present time there is such a realistic possibility. His Honour answered that question in the affirmative. 5. Whether there is a realistic future possibility of the child BH being restored to the care of his mother KH. His Honour found that there was. 6. Whether an amended care plan should be prepared for the child BH. His Honour found that it should. 1. As to the first issue, his Honour said, after concluding that the mother KH had been denied procedural fairness in the Children's Court: "[574] That said, the particular procedural problem of a denial of procedural fairness is generally curable in these proceedings because this appeal operates as a re-hearing of the Children's Court proceedings. [575] However, the adverse knock-on ill-effects of the denial of procedural fairness for the appellant, and for her son for that matter, are not so readily ameliorated. The effect on the appellant has been, to use her words, to make her feel 'shattered'. After that, things went downhill for her." 1. His Honour's reasoning as to the second issue included the following: "[590] The child has reportedly said that he is happy to be in the care of his maternal grandmother and the family members of her household. He also misses his mother, whom he clearly loves, and there is a strong bond of attachment between mother and son. That said, he has expressed a wish to not be in her company when she is angry and exhibits angry behaviour, as understandably, he finds such behaviours to be upsetting. This sometimes occurs at contact visits. The reasons for this will be identified and revisited for further consideration on another issue at a later point in these reasons." 1. As to the third issue, his Honour's reasoning concluded as follows: "[611] I therefore conclude that as at 4 March 2019, the appellant had reasonable evidence and arguments available to support a conclusion that, at that time, there were realistic prospects for her child to be restored to her within a reasonable time. [612] Regrettably, the appellant has encountered much anger-driven destabilising chaos and misfortune since that time, the downward spiralling effects of which have unfortunately altered the dynamics of the consideration that is now required." 1. His Honour's reasoning as to the fourth issue was as follows: "[613] In light of those further downward spiralling events within the appellant's circumstances since the ex parte final orders made on 4 March 2019, and in view of the precarious position in which she now finds herself, personally, healthwise and in her unsatisfactory neighbourhood accommodation, where she has unresolved anger, where she needs intensive therapy to deal with her alcohol issues and her accommodation-related issues, it is indisputable that at present, without the sustained implementation of material changes, there is no realistic prospect of the child being restored into her parental care. [614] That position must necessarily remain so for so long as the appellant's anger remains unmanageable, including where there is a risk that she may relapse into inappropriate use of alcohol, and where her unsuitable housing situation remains unchanged. The appellant has much work ahead of her in her endeavours to overcome those problems. She needs skilled assistance to enable her to do so. She has limited time in which to do so if she is to regain the parental care of her son." 1. His Honour's reasoning included the following in relation to the fifth issue: "[623] In my opinion, the appellant's circumstances, in terms of who should have the parental responsibility for caring for the child, requires that there should be a material re-set of the arrangements to enable her to regain the position that the appellant had, but which became denied to her on 4 March 2019. To do otherwise would unfairly add another layer of injustice to the appellant's already beleaguered circumstances. [624] It is significant to note that the appellant's state of personal chaos has continued to subsist since the appealed orders were made on 4 March 2019, that is, over a damaging period of more than 2 years. In those circumstances, I consider that justice requires that the appellant be afforded the maximum period allowed by statute to demonstrate her parental capacity, namely 24 months. I consider that period to be reasonable in the circumstances, where in the meantime, the child is in a stable and safe placement with his maternal grandmother." 1. In relation to the sixth issue, his Honour stated that a number of matters should be included in any new care plan, including the following: "[649] … A common narrative for the child's benefit (1) As an urgent priority, a common narrative or script must be identified forthwith and adhered to by all who have contact with the child, with the aim of ensuring that no mixed messages are received by him as to the outcome of these proceedings. At the age of almost 10 years, with the mature and intelligent insights he has already disclosed, it is only reasonable that he be informed that in his best interests he will be spending more time with his mother, with less intrusive supervision from contact workers, as she progressively pursues treatment to achieve stability of her mental health, obtains safe and suitable accommodation, demonstrates her wellness, and remains abstinent from the use of alcohol, and if all goes well in those endeavours, in time, subject to those matters being achieved satisfactorily, within the next 2 years, he may transition to return to live with her, but he will still retain close contact with his extended family. A simplified form of those elements should be the subject of an urgently agreed narrative…". 1. His Honour prefaced his orders by the following: "[651] In conformity with my findings, I consider the appropriate orders allowing the appeal should in the interim preserve the present arrangements for up to 24 months pending the appellant demonstrating she has satisfactorily fulfilled the requirements of an amended care plan, allowing for flexibility if the appellant achieves her set goals in a shorter time, but not before the expiry of 12 months, for which there should be liberty to apply for further orders if required." 1. His Honour's orders of 21 September 2021 included the following: "(1) Pursuant to s 83(2) and s 83(8A) of the Children and Young Persons (Care and Protection) Act 1998 (NSW), the Court finds that there is a realistic possibility of restoration of the child the subject of the appeal into the parental care and responsibility of his mother, the appellant in these proceedings; (2) Within 5 weeks of today's date, the Secretary, Department of Communities and Justice, in consultation with the appellant, is to prepare an Amended Care Plan that reflects these reasons for decision; … (5) Pending the making of final orders, the third respondent maternal grandmother is required to exercise her parental responsibilities in respect of the child the subject of the appeal in conformity with these reasons…". 1. At a directions hearing on 12 November 2021, his Honour made, as Order (1), an order for a mediation to occur "to assist [KH] and her mother [DH] … to seek a resolution of their interpersonal barriers and difficulties to aid the preparation of an amended care plan". His Honour also, by Order (2), extended the time for the preparation of an amended care plan to 8 December 2021 and, by Order (4), fixed 10 December 2021 for a further directions hearing. The evidence on the motion 1. The only substantive evidence put before the Court on the hearing of the Secretary's motion was that contained in the affidavit of Ms Tammie Shearer affirmed on 25 November 2021, together with the exhibit to that affidavit. Ms Shearer is employed by the Department of Communities and Justice and is the manager casework for the child BH, the subject of these proceedings. It is sufficient for present purposes to refer to the following contents of the affidavit. 2. Based on her extensive experience in preparing restoration plans, Ms Shearer deposed: "[20] In my view the plan for [the child BH] is particularly complex because [the child BH] is at an age where he will have an understanding of what is going on and he has his own significant trauma background (for which he has required counselling) that needs to be carefully considered. I am concerned that informing [the child BH] about the judgment of the District Court places him at a risk of psychological harm and, to that extent, it is very important that the process of informing him about the decision is approached delicately and in accordance with expert advice. I am also concerned about the risk of harm to [the child BH] if he is informed about a possible restoration that does not proceed. [21] Given my concerns, [the child BH] has not to date been informed about the outcome of the proceedings. I am concerned about the psychological harm that may come to him if he were to learn of the prospect that he may be returned to the care of his mother — particularly in view of the comments he has made about this to his grandmother [referred to later in the affidavit – see [19] below] — and the psychological impact that could occur should he be told about these matters and should the restoration ultimately not proceed. [22] My concerns appear to be shared by the maternal grandmother. On 22 September 2021, the maternal grandmother was informed of the outcome of the proceedings. I understand from Ms Bazley [the child BH's caseworker] that the maternal grandmother appeared distraught about the outcome and expressed concern about [the child BH] being told about the outcome of the proceedings. The maternal grandmother reported that the mother had attended her home the previous week appearing intoxicated and was asked to leave." 1. Ms Shearer went on to describe information that was in her possession concerning the mother KH's alcohol use, her need for anger management assistance and other matters of concern, consistent with those that Judge Levy had in mind when he said that the mother KH "has much work ahead of her in her endeavours to overcome [her] problems" which may take up to two years to achieve (Judgment [614], [649(1)], referred to in [10] and [12] above). 2. Ms Shearer also gave evidence that the grandmother DH recently informed Ms Bazley, the caseworker working under Ms Shearer, that "[the child BH] heard something recently and asked if his mum was 'back at court'. [The maternal grandmother] told him yes and she is trying to get you back into her care. [The child BH] stated well I'm not going because I don't feel safe with her and then spoke about his mum getting angry at the last contact with a lady on a bike" (a reference to a contact visit on 12 June 2021). Applicable principles 1. The conferral by s 23 of the Supreme Court Act 1970 (NSW) on this Court of "all jurisdiction which may be necessary for the administration of justice in New South Wales" enables the Court, in an appropriate case, to stay on an interim basis orders of another court that are the subject of an application to this Court for judicial review under s 69 of that Act. Whilst the principles stated in Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 are relevant to the exercise of the Court's discretion to the grant of an interim stay in support of an appeal or application for leave to appeal, authority suggests that a more stringent approach is appropriate where the application is not made in appeal proceedings. As Bryson JA said in Nikolaidis v Legal Services Commissioner [2005] NSWCA 91 at [18], in such a case: "…It must be shown that it is likely that there will be some adverse consequence of allowing the proceedings under challenge to continue and that the outcome will be so difficult to remedy, or otherwise so adversely severe in its impact, that intervention by the Court of Appeal should take place notwithstanding that there has not been an opportunity for full consideration." See also Newcrest Mining v Industrial Relations Commission (NSW) [2005] NSWCA 85 at [5]; Thomson v Young [2013] NSWCA 300 at [8]-[9]; RH v Secretary, Department of Communities & Justice [2021] NSWCA 101 at [8]. 1. Although none of these principles require an applicant for an interim stay to establish that it has a prima facie case on its challenge to the subject orders, the strength of the challenge, as it appears from a necessarily preliminary assessment, is an important consideration. I therefore turn first to consider that matter. The judicial review application 1. The Secretary's grounds for seeking judicial review are that Judge Levy made an error of law on the face of the record in the following respects: 1. Misconstruing or failing to apply the requirement in s 83(5) of the Care Act that there be "a realistic possibility of restoration within a reasonable period". 2. Failing to apply the principle mandated by s 9(1) of the Care Act that "in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount". 3. Taking into account an irrelevant consideration of whether the mother KH was denied procedural fairness by the Children's Court. 4. Finding that the mother KH was denied procedural fairness by the Children's Court. 1. Ground 1 is in my view arguable. As the Secretary pointed out, an important element of the issue to be addressed pursuant to s 83(5) of the Care Act is whether there is a possibility of restoration within a reasonable period that is "realistic". Such a realistic possibility of restoration is to be distinguished from "the mere hope that a parent's situation may improve" (see In the matter of Campbell [2011] NSWSC 761 at [55]-[57]; Re Henry [2015] NSWCA 89 at [44]). 2. His Honour's judgment contains a detailed description of the mother KH's problems (see for example [10] above) and concludes that she has "much work ahead of her in her endeavours to overcome" them (Judgment [614]). Arguably however it does not contain any assessment, rather than simply an assumption, of the likely success or otherwise of her endeavours. Such success is undoubtedly necessary before restoration of the child BH to her can occur (see for example [10] and [12] above). 3. Likewise, preliminary consideration of the judgment indicates that the second ground of appeal is arguable by reason of his Honour's perhaps overwhelming focus in his deliberations on the position of the mother KH and her right to be given the opportunity to obtain restoration of the child BH to her. Arguably, there was a failure to properly consider and afford primacy to the child's position and therefore to apply the principle of paramountcy of the child's interests stated in s 9(1) of the Care Act. 4. I consider Ground 3 also to be arguable, when considered in conjunction with Ground 2. Arguably, his Honour's conclusions that the mother KH had been denied procedural fairness in the Children's Court and that that was a significant reason for her present condition (see [7] above) led his Honour to focus inappropriately on how the resulting injustice to the mother KH could be remedied (see for example [11] above), rather than concentrating on giving paramountcy to the child BH's interests. The mother KH's condition is of course of great significance to those interests, however unfairly to the mother that condition may have come about. 5. I have not been able to form a view, even preliminary, as to whether Ground 4 is arguable. That is not however of significance on this application. 6. For these reasons, I approach the exercise of my discretion to grant a stay on the basis that the Secretary's challenge to his Honour's orders is at least arguable. Discretionary factors 1. Section 10 of the Care Act requires that, so far as is reasonable and practical, a child be given adequate information about decisions and other matters concerning him or her. Consistent with this, his Honour stated that the amended care plan which he ordered to be prepared should include a requirement for the child BH to be informed about the terms of the Plan and what it would involve (see Judgment [649(1)] quoted in [12] above). Understandably, his Honour was also of the view that "a common narrative or script" should be prepared "with the aim of ensuring that no mixed messages are received by [the child] as to the outcome of these proceedings". 2. In these circumstances, I consider that is a sound basis for the Secretary's concern, expressed through Ms Shearer's affidavit and in written submissions, that there is a real possibility of a significant harmful psychological impact on the child BH if he is informed first of the effect of the amended care plan which his Honour ordered be prepared but then is later is told that the plan has been abandoned as a result of the quashing of his Honour's orders on the Secretary's judicial review application to this Court. This would very much be a matter of "mixed messages" and is of particular concern in light of the evidence that the child BH's wish to be restored to his mother KH is significantly qualified (see [8] above) and that he has stated to his grandmother DH that he does not "feel safe" with his mother in her present condition (see [19] above). 3. As asserted by Mr Moore, acting as amicus curiae, and acknowledged by both Mr Williams, who appeared for the mother KH, and Mr Dean, who appeared for the Secretary, there is a countervailing risk of distress to BH if he finds out details of the Court proceedings that he considers have been unreasonably withheld from him. The risk to which the Secretary principally averted (see [30] above) is however in my view significantly the greater and the more likely to cause lasting harm if it comes to pass. 4. Other relevant considerations are that the hearing of the Secretary's judicial review application has been fixed for hearing by this Court on 6 April 2022 and that, pending disposition of the proceedings in this Court, the child BH will continue to reside in a safe and happy environment with his maternal grandmother DH (see [8] above), as he has done for the last four years. Moreover, if his Honour's orders are stayed, the critical efforts by the mother KH to overcome, with professional assistance, the problems that she has can continue unabated. As well, as is apparent from the judgment, his Honour did not contemplate that restoration of the child BH to his mother would occur within the next 12 months which should be long after the judicial review application is determined (see [13] above). 5. For these reasons, the Secretary's application for an interim stay should be granted. Orders 1. The Secretary seeks an interim stay of Orders (2) and (5) of Judge Levy made on 21 September 2021 and Orders (1) and (2) made by his Honour on 12 November 2021 (see [14] and [15] above). 2. Order (2) made on the first date and Order (2) made on the second date concern preparation of an amended care plan. Consistent with my reasoning, those orders should be stayed. 3. Order (5) made on 21 September 2021 is an adjunct to those orders and should also be stayed. Likewise Order (1) made on 12 November 2021 should be stayed. The mediation for which it provides should not proceed at this stage, at least for the reason that the applicable legal regime (and therefore the background against which the parties would mediate) will not be determined with certainty until the Secretary's judicial review application to this Court is dealt with. 4. A final matter to which reference must be made is a question raised at the hearing before me as to whether the child BH should have a tutor or independent legal representative appointed. BH had previously been joined as a party to the proceedings in this Court and before me his interests were protected by Mr Moore, acting on the instructions of Ms Leanne Wells, as amicus curiae. To save public expense, I propose to dispense with the appointment of a tutor but as BH's interests may require matters to be brought to the Court's attention on the judicial review application I intend to appoint an independent legal representative for him. As contemplated in JE v Secretary, Department of Communities and Justice (No 2) [2020] NSWCA 243, and as acknowledged before me by Mr Moore, due consideration of the child's interests may not require him to be represented at the hearing. Alternatively, it is possible that they may be satisfied by the lodgement of written submissions. 5. For the above reasons, I made the following orders: 1. Stay until the determination of the Secretary's judicial review proceedings Orders (2) and (5) made by Judge Levy in the District Court on 21 September 2021 and Orders (1) and (2) made by his Honour on 12 November 2021. 2. Pursuant to s 14 of the Civil Procedure Act 2005 (NSW) dispense with the appointment of a tutor for the fourth respondent BH. 3. Appoint Ms Leanne Wells, solicitor, as BH's independent legal representative. 4. Costs of the Secretary's notice of motion to be costs in the Secretary's judicial review proceedings. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 December 2021