JH v Secretary, Department of Communities and Justice & Ors (No 2) [2023] NSWDC 317

District Court New South Wales

Medium Neutral Citation: JH v Secretary, Department of Communities and Justice & Ors (No 2) [2023] NSWDC 317 Hearing dates: 15 August 2023 Date of orders: 17 August 2023 Decision date: 17 August 2023 Jurisdiction: Civil Before: Abadee DCJ (as List Judge) Decision: See paragraphs 74 - 75 Catchwords: FAMILY LAW AND CHILD WELFARE – appeal from decisions of Children's Court – application for an Assessment Order Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW) ss 53, 54, 55, 56, 59, 94 Uniform Civil Procedure Rules 2005 (NSW) r 31.46 Cases Cited: JH v The Secretary, Department of Communities and Justice & Ors [2023] NSWDC 30 Texts Cited: Nil Category: Principal judgment Parties: JH (plaintiff) The Secretary, Department of Communities and Justice (1st defendant) PK (2nd defendant) CB (3rd defendant) Representation: Counsel: Mr B Dean for the first defendant Ms L Goodsell with Ms Ito as agent for the Independent Legal Representative

Solicitors: Crown Solicitor's Office (NSW) for the first defendant JH (in person) 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

Background 1. The applicant (JH) is the mother of BK and CB (unless it is necessary to refer to them separately, 'the children'). BK is currently 7 years of age and CB is currently 4 years of age. The children were born to different fathers. 2. On 3 March 2021, the children were removed from JH's care. 3. On 19 August 2022, the Parramatta Children's Court finally determined that there was no realistic possibility of the restoration of the children to the mother within a reasonable period of time and finally allocated parental responsibility for CB to the Minister until he attained 18 years of age. In the case of BK, the Children's Court declined to make final orders since it was of the view that permanency planning had not been established, but the Minister continued to have parental responsibility for BK. 4. On 22 November 2022, the Parramatta Children's Court made final orders allocating parental responsibility for BK to the Minister until he attained the age of 18 years. 5. Previously the Parramatta Children's Court determined that there was no realistic possibility of the restoration of the children to their respective fathers within a reasonable time. 6. On 25 August 2022, JH filed a Summons seeking to appeal the decision of the Parramatta Children's Court on 19 August 2022. She amended that summons on 13 December 2022 and sought various orders which included overturning a finding that there was no realistic possibility of the children being restored to her, setting aside the decision that the children remain under the Minister's care until they turn 18 and returning both of the children to her care immediately. 7. By my decision on 17 February 2023 [1] JH unsuccessfully applied to the Court for a stay of the orders of the Children's Court pending the appeal. 8. On 8 May 2023, the appeal was set down for hearing scheduled to commence on 13 November 2023 with an estimate of 5 days.