Secretary, Department of Communities and Justice v KH & Ors [2022] NSWCA 221

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Secretary, Department of Communities and Justice v KH & Ors [2022] NSWCA 221 Hearing dates: 06 April 2022 Decision date: 01 November 2022 Before: White JA at [1]; Beech-Jones JA at [106]; Simpson AJA at [124] Decision: Summons dismissed with costs Catchwords: ADMINISTRATIVE LAW — judicial review — whether reasons of primary judge form part of the record — meaning of "ultimate determination" —primary judge's decision a step towards an ultimate determination — reasons of primary judge do not form part of the record CHILD WELFARE — Care proceedings — whether primary judge made an error of law on the face of the record by misconstruing or failing to apply the requirement that there be a 'realistic possibility of restoration within a reasonable period' — submissions invite merits review of primary judgment and are therefore rejected CHILD WELFARE — Care proceedings — paramountcy of the best interests of the child —whether primary judge erred in focusing on the possibility that a parent would be capable of providing a safe environment for the child — primary judge did not err ADMINISTRATIVE LAW — Irrelevant and relevant considerations — judge below erred in the way in which he took into account whether a parent was denied procedural fairness Legislation Cited: Administrative Decisions (Judicial Review) Act 1977 (Cth) Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 9, 10A, 60, 61, 62, 69, 70, 70A, 71, 72, 78, 79, 82, 83, 85, 91 Children and Young Person's (Care and Protection) Amendment Act 2018 (NSW) Courts Legislation Amendment Act 1996 (NSW) Interpretation Act 1987 (NSW), s 8 Supreme Court Act 1970 (NSW), s 69 Cases Cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 Commissioner for Motor Transport v Kirkpatrick (1988) 13 NSWLR 368 Commissioner of Police v Attorney General for New South Wales [2022] NSWSC 595 Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 D v C; Re B (No. 2) [2018] NSWCA 310 Department of Communities and Justice (DCJ) and Bloom [2021] NSWChC 2 Director of Public Prosecutions (NSW) v Mahamed [2022] NSWSC 147 Director of Public Prosecutions v Yerbury [2020] NSWSC 905 GJ Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503 Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44 In the matter of Campbell [2011] NSWSC 761 Kriticos v New South Wales (1996) 40 NSWLR 297 JW Shaw QC and FJ Gwynne, Certiorari and Error on the Face of the Record" (1997) 71 ALJ 356 PQR v Director of Public Prosecutions (NSW) [2020] NSWSC 731 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 R v Brisbane City Council; Ex parte Read [1986] 2 QdR 22 R v Criminal Injuries Compensation Board, Ex parte Lain [1967] 2 QB 864 Re Alistair [2006] NSWSC 411 Re Frieda and Geoffrey [2009] NSWSC 133; (2009) 40 FamLR 608 Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89 Re Tanya [2016] NSWSC 794 Russell v Scott & Anor [2017] NSWSC 1720 Secretary, Department of Communities and Justice v KH [2021] NSWCA 308 Testro Bros. Proprietary Limited v Tait (1963) 109 CLR 353; [1963] HCA 29 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 Category: Principal judgment 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: P Herzfeld SC with B J Dean (Applicant) Mr A N Williams (First Respondent)