DHK & Anor v Secretary, Department of Family and Community Services & Ors [2018] NSWDC 221

DHK & Anor v Secretary, Department of Family and Community Services & Ors [2018] NSWDC 221

The challenge to establishment failed because, at the time of assumption and the interim care order, the Secretary had reasonable grounds to suspect SHK was at risk of serious harm and the evidence overwhelmingly supported interim protective intervention, including because of cannabis use, domestic violence risk, insufficient engagement with services, and concerns about visibility and RS's influence if placement occurred with RS and GL. However, the final order allocating parental responsibility to the Minister until age 18 could not stand because, on the evidence at the District Court appeal, there was a realistic possibility of restoration to DHK: she had obtained stable accommodation,...

Jurisdiction
Australia
Judgment Date
10 August 2018
Procedural Posture
Civil Appeal in Care and Protection Proceedings From NSW Children's Court Orders Allocating Parental Responsibility for a Child to the Minister Until Age 18 / District Court Appeal From Final Orders and Challenge to Interim Care Order/finding of Risk
Outcome
Appeal allowed in part; interim care order affirmed; final Children's Court order set aside; staged restoration to DHK ordered after a period of Ministerial parental responsibility and transition planning.
Legal Topics
['parental Responsibility' 'care Orders' 'restoration to Parent' 'realistic Possibility of Restoration' 'permanent Placement Principles' 'interim Care Order' 'assumption of Care Responsibility' 'domestic Violence' 'parental Drug Use' 'child Protection Risk Assessment']
['child Welfare' 'care and Protection' 'administrative Law'] ['parental Responsibility' 'care Orders' 'restoration to Parent' 'realistic Possibility of Restoration' 'permanent Placement Principles' 'interim Care Order' 'assumption of Care Responsibility' 'domestic Violence' 'parental Drug Use' 'child Protection Risk Assessment']

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Procedural Posture

Civil Appeal in Care and Protection Proceedings From NSW Children's Court Orders Allocating Parental Responsibility for a Child to the Minister Until Age 18 / District Court Appeal From Final Orders and Challenge to Interim Care Order/finding of Risk

Legal Issues

  1. 1 ["Whether the Children's Court interim care order and finding that SHK was in need of care and protection should be disturbed." 'Whether the Secretary properly assumed care responsibility for SHK and whether SHK was at risk of significant harm.' 'Whether there was a realistic possibility of restoration of parental responsibility for SHK to DHK.' "Whether the Children's Court final order allocating parental responsibility to the Minister until SHK attained 18 years should be set aside." 'Whether permanency planning for SHK had been appropriately and adequately addressed.']

Ratio Decidendi

The challenge to establishment failed because, at the time of assumption and the interim care order, the Secretary had reasonable grounds to suspect SHK was at risk of serious harm and the evidence overwhelmingly supported interim protective intervention, including because of cannabis use, domestic violence risk, insufficient engagement with services, and concerns about visibility and RS's influence if placement occurred with RS and GL. However, the final order allocating parental responsibility to the Minister until age 18 could not stand because, on the evidence at the District Court appeal, there was a realistic possibility of restoration to DHK: she had obtained stable accommodation,...

Court Disposition

Appeal allowed in part; interim care order affirmed; final Children's Court order set aside; staged restoration to DHK ordered after a period of Ministerial parental responsibility and transition planning.

Orders

  • ['The appeal is allowed.' "The Interim Care Order of the Children's Court made 21 April 2015 is affirmed." "Final Order of the Children's Court made 9 September 2016 be set aside." 'SHK to remain in the parental care solely of the Minister for 12 months pursuant to section 79 (1) (b) Care Act.' 'All aspects of...