KH v Secretary, Department of Communities and Justice [2021] NSWDC 498

KH v Secretary, Department of Communities and Justice [2021] NSWDC 498

The appeal succeeded because the appellant was denied procedural fairness in the Children's Court when final orders materially affecting parental responsibility were made on the papers in her absence after her lawyer withdrew without prior notice, despite indications that she intended to attend and contest the proceedings, and without adequate inquiry into her absence. On the evidence, as at 4 March 2019 there was a realistic possibility of restoration within a reasonable time. Although restoration was not presently realistic because of the appellant's unresolved anger, alcohol, mental health and housing issues, the evidence, particularly from her treating psychologist, established a...

Jurisdiction
Australia
Judgment Date
21 September 2021
Procedural Posture
Child Care Appeal / Hearing De Novo Appeal From Final Orders of the Children's Court at Port Kembla; Principal Judgment With Interim Orders Pending an Amended Care Plan
Outcome
Appeal allowed subject to interim preservation of the Children's Court orders pending consideration and approval of an Amended Care Plan.
Legal Topics
['realistic Possibility of Restoration' 'parental Responsibility' 'amended Care Plan' 'aboriginal Child Placement and Cultural Considerations' "child's Wishes" 'supervised Contact']
['child Care and Protection' 'child Protection Appeals' 'procedural Fairness'] ['realistic Possibility of Restoration' 'parental Responsibility' 'amended Care Plan' 'aboriginal Child Placement and Cultural Considerations' "child's Wishes" 'supervised Contact']

Case Brief

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Procedural Posture

Child Care Appeal / Hearing De Novo Appeal From Final Orders of the Children's Court at Port Kembla; Principal Judgment With Interim Orders Pending an Amended Care Plan

Legal Issues

  1. 1 ["Whether the sequence of events at the Children's Court hearing and disposition of the proceedings gave rise to a denial of procedural fairness." "What weight should be given to the child's wishes as related in the evidence." 'Whether, as at 4 March 2019, there was a realistic possibility of the child being restored to the care of the appellant mother.' 'Whether, at the present time, there is a realistic possibility of the child being restored to the care of the appellant mother.' 'Whether there is a realistic future possibility of the child being restored to the care of the appellant mother.' 'Whether an amended care plan for the child is indicated.']

Ratio Decidendi

The appeal succeeded because the appellant was denied procedural fairness in the Children's Court when final orders materially affecting parental responsibility were made on the papers in her absence after her lawyer withdrew without prior notice, despite indications that she intended to attend and contest the proceedings, and without adequate inquiry into her absence. On the evidence, as at 4 March 2019 there was a realistic possibility of restoration within a reasonable time. Although restoration was not presently realistic because of the appellant's unresolved anger, alcohol, mental health and housing issues, the evidence, particularly from her treating psychologist, established a...

Court Disposition

Appeal allowed subject to interim preservation of the Children's Court orders pending consideration and approval of an Amended Care Plan.

Orders

  • ['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.' "Within...