JH v The Secretary, Department of Communities and Justice & Ors [2023] NSWDC 30

District Court New South Wales

Medium Neutral Citation: JH v The Secretary, Department of Communities and Justice & Ors [2023] NSWDC 30 Hearing dates: 14, 17 February 2023 Date of orders: 17 February 2023 Decision date: 17 February 2023 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraph 52 Catchwords: CIVIL PROCEDURE – appeal from decisions of Children's Court – application for stay pending appeal from Children's Court's decisions Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW) ss 70, 70A, 71, 90, 91 Civil Procedure Act 2005 (NSW) s 67 District Court Act 1973 (NSW) s 156 Cases Cited: GR v Secretary, Department of Communities and Justice [2020] NSWSC 607 Category: Principal judgment Parties: JH (applicant) The Secretary, Department of Communities and Justice (1st respondent) PK (2nd respondent) CB (3rd respondent) Representation: JH (in person) as the applicant Crown Solicitor's Office (NSW) for the first respondent Independent Legal Representative, Ms K Rowley File Number(s): 2022/00252702 Publication restriction: Children and Young Persons names anonymised in accordance with s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). Parents' names also anonymised.

REASONS FOR JUDGMENT

Introduction 1. On 19 August 2022 and 22 November 2022, the Children's Court made final orders regarding the allocation of parental responsibility for the Minister for Families and Communities (the Minister) in connection with two children, who I will respectively refer to as BK and CB. 2. On 25 August 2022, the mother (JH) of the two children commenced an appeal in this Court from the orders made by the Children's Court. 3. On 5 December 2022, JH had filed an earlier application for a stay. But when she was before this Court on 7 December 2022, her application was refused although she was given the opportunity to bring a new application with a new affidavit to support it. 4. On 13 December 2022, JH filed an amended Summons by which she purported to set out her grounds of appeal. 5. On the same day, JH filed the current notice of motion in which she sought orders in the following terms (with the anonymising of the names of the children): "1. An order that a stay of proceedings in the court below be granted to stay the final orders that were made in the court below on 19 August 2022 in regards to [BK] until the District Court proceedings are finalised. 2. An order that a stay of proceedings in the court below be granted to stay the final orders that were made in the court below on 19 August 2022 in regards to [CB] until the District Court proceedings are finalised. 3. An order that a stay of proceedings in the court below be granted to stay the order that was made in the court below on 19 August 2022 of no realistic possibility of (BK) to the mother's care until the District Court proceedings are finalised. 4. An order that a stay of proceedings in court below the granted to stay the order that was made in the court below on 19 August 2022 of no realistic possibility of (CB) to the mother's care until the District Court proceedings are finalised." 1. The mother's stay application commenced being heard before me on 14 February 2023. The mother represented herself. After evidence was tendered on the application and written submissions of the Secretary of the Department of Communities and Justice (MFI 1, which were filed on the afternoon before the date for the hearing) were marked, I adjourned the application to enable the applicant to have more time to consider the Secretary's written submissions. The applicant then prepared her own written submissions (MFI 2). 2. The first respondent, the Secretary of the Department of Communities and Justice (the Secretary) opposed the stay application. The Independent Legal Representative joined the Secretary in opposition. So too did the third respondent (the father of CB), for whom the Secretary made an appearance. The second respondent (the father of BK) did not appear, but the Court was informed, was aware of the hearing date for the stay application. (I also directed my Associate to ask the parties to notify him of the date for resumption of the hearing of the application). 3. In support of her stay application, JH relied upon an affidavit she had sworn on 13 December 2022. The Secretary relied upon an affidavit from Simone Tyndall, a child protection caseworker at a community services centre.