AV v Secretary, Department of Communities and Justice

[2025] NSWDC 50

District Court

New South Wales

Medium Neutral Citation:

AV v Secretary, Department of Communities and Justice [2025] NSWDC 50

Hearing dates:

13 February 2025

Date of orders:

13 February 2025

Decision date:

13 February 2025

Jurisdiction:

Civil

Before:

Dicker SC DCJ

Decision:

CLOSED COURT
Orders:
In relation to the Notice of Motion filed on 12 February 2025:

(1) The application for an adjournment is dismissed.

(2) The appeal is listed for final hearing on 10 March2025 with an estimate of one day.

(3) Any further affidavits to be relied upon by any party are to be filed and served by 3 March 2025.

(4) Liberty to apply on 2 business days’ notice.

(5) Liberty to the parties to issue subpoenas returnable on 27 February 2025.

Note:

A new appeal date was listed as no judge was available to hear the appeal.

Catchwords:

CHILD WELFARE – care and protection – leave to appeal sought relating to care – orders – adjournment sought of hearing

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998

Category:

Consequential orders

Parties:

AV (Plaintiff)
Secretary, Department of Communities and Justice (First Defendant)
Father (Third Defendant)

Representation:

Counsel:
S Ktenas (Solicitor)(Plaintiff)
Secretary, Department of Communities and Justice: Ms Jones (First Defendant)
ILR: P J Braine (Second Defendant)
Father: In Person (Third Defendant)

Solicitors:
Ktenas Solicitors & Barristers (Plaintiff)
Crown Solicitors (First Defendant)
Alam McLachlan Solicitors (Second Defendant)

File Number(s):

2024/00298938

Publication restriction:

Care Appeal restrictions

JUDGMENT – EX TEMPORE

1. Before the Court is a Notice of Motion filed on 12 February 2025 by the mother appellant, AV, seeking an order that the hearing of the proceedings seeking leave be adjourned "for an appropriate length of time, with a date to be fixed for further mention prior to the allocation of a further hearing date".

2. The background to the matter is that by a Summons filed on 13 August 2024, AV, hereafter called "the mother", appealed a decision made by a Children's Court Magistrate on 22 July 2024 refusing her leave to bring an application pursuant to s 90 of the Children and Young Persons (Care and Protection) Act 1998 (“the Care Act”). This application stems right back to orders made in 2023 in the Children's Court following the two relevant children in question, born on x October 2020 and x January 2020, being placed in care with third parties.

3. The matter was listed for hearing today by her Honour Judge Gibson on 4 December 2024. In support of the adjournment application, two affidavits of the mother dated 19 December 2024 and 12 February 2025 were read, outlining, in substance, her visa position and the considerable efforts which she has made to advance, clarify and confirm her visa position, and her entitlement to remain in Australia.

4. One unfortunate matter is the Court does not have a judge available today to hear the final hearing of the matter if the adjournment application is refused. Accordingly, the Court is placed in a difficult position. However, I must deal with the adjournment application on its merits. The relevant provision applicable is s 94 of the Care Act which, in sub-section (4), states that:

"The Children's Court should avoid the granting of adjournments to the maximum extent possible, and must not grant an adjournment unless it is of the opinion that:

(a)  it is in the best interests of the child or young person to do so, or

(b)  there is some other cogent or substantial reason to do so".

5. The Secretary and the Independent Legal Representative for the two children I have referred to oppose the application.

6. The visa position of the mother is uncertain. I understand that she wishes that matter to be clarified to assist her in her appeal. However, consistently with the thrust of s 94(4) of the Care Act, the Court should avoid adjournments unless there is a real and compelling reason to order one.

7. Mr Ktenas, who appears for the mother, submits that the Court would be assisted by the best evidence possible in relation to that issue. While that is the case, the Court must give effect to the principles governing the Care Act, and, in particular, the objects of the Care Act in s 8 and the principles for the administration of the Care Act in s 9. The safety, welfare and well-being of the children are the paramount consideration for the Court to take into account: s 9(1).

8. In my view, the order sought in the Notice of Motion being an adjournment for an indeterminate period is inappropriate and creates substantial uncertainty for the parties and the children. It would be inconsistent with s 94(4) of the Care Act. For those reasons, I dismiss the application.

[His Honour then dealt with timetabling issues.]

9. The orders I therefore propose are, in relation to the Notice of Motion filed 12 February 2025:

In relation to the Notice of Motion filed 12 February 2025:

1. The application is dismissed;

2. The appeal is listed for final hearing on 10 March 2025 with an estimate of one day;

3. Any further affidavits to be relied upon by any party to be filed and served by 3 March 2025;

4. Liberty to apply on two business days' notice.

5. Liberty to the parties to issue subpoenas returnable on 27 February 2025.

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Decision last updated: 14 March 2025