JH v The Secretary, Department of Communities and Justice

[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.”

6. 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).

7. 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).

8. 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.

Relevant factual background

9. BK was born on 28 February 2016. CB was born on 1 February 2019. The applicant, JH was born on 31 July 1989.

10. On 3 March 2021, the children were removed from the applicant and assumed into the care of the Minister. This followed the Department receiving 20 ‘risk of significant harm’ reports and multiple ‘non- risk of significant harm’ reports for the two children, including prior to their births, relating to abuse, neglect, domestic violence and drug usage from the parents between 17 July 2015 and 18 February 2021.

11. On 8 March 2021, the Secretary filed an application initiating care proceedings with respect to the children. On 10 March 2021, the Children’s Court made an interim order allocating parental responsibility to the Minister. On 24 March 2021, the Secretary filed a summary of a proposed plan for the children which indicated that the Department did not view restoration to the mother as a realistic possibility.

12. On 11 June 2021, the Children’s Court made a finding pursuant to ss 71(1)(d) and (e) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the ‘Care Act’) that the children were in need of care and protection. JH unsuccessfully sought judicial review in the Supreme Court.

13. On 28 July 2021, the Secretary filed Care Plans proposing that the children be placed in the Minister’s care until they attained 18 years of age.

14. On 4 February 2022, by consent but without admissions, the Children’s Court made findings that there was no realistic possibility of restoration of BK or CB to their respective fathers.

15. On 21 February 2022, a final hearing was vacated. But the Children’s Court made interim orders (pursuant to s 90A of the Care Act) which, amongst other things, prohibited the mother from attending upon the children outside of scheduled family time visits, or at the children’s schools, without the prior knowledge and written consent of the Secretary. This order remained effective whilst the Minister continued to have parental responsibility for the children.

16. On 19 August 2022, following a five day final hearing, the Children’s Court found that there was no realistic possibility of restoration of the children to the applicant within a reasonable period of time. On the same day, final orders were made with respect to CB which effectively continued the interim orders and allocated parental responsibility to the Minister until CB reached the age of 18.

17. On 22 November 2022, the Children’s Court made final orders with respect to BK, allocating parental responsibility for BK to the Minister.

18. The final orders made on 19 August and 22 November 2022 respectively included final orders (pursuant to s 90A) prohibiting the mother from attending upon the children at various times and places without the prior knowledge and consent of the Secretary.

19. Prior to the final orders being made, JH had family visits once per week for one hour. But after the final orders were made, her family visit times were changed to once per month for two hours.

Evidence of the placements of the two children

CB

20. Simone Tyndall has been the allocated caseworker for CB and BK since 14 March 2022. Before then, the allocated caseworker for the children was Alana Sonter. Ms Lisa Matheson is the Manager overseeing daily management of the children. When preparing her affidavit, Ms Tyndall relied upon her own personal knowledge, which was supplemented with discussions with Ms Matheson and her own perusal of the DCJ’s files and records.

21. Since 3 March 2021 CB has resided with authorised kinship carers in Western Sydney. The carers have two children. Ms Tyndall deposed to conducting home visits with CB and his carers and opined that he appeared settled and happy, forging strong connections with his carers. A more recent report from another caseworker from January 2023 also suggested that CB appeared settled.

BK

22. BK also resides with an authorised carer in Western Sydney. That carer was the mother of his former carer, who had moved interstate in mid-December 2022.

23. Ms Tyndall deposed to conducting home visit with BK on 8 November 2022 and perceived that BK wanted more contact with his former carer. But after BK transitioned into his current carer’s home on 16 December 2022, Ms Tyndall saw BK three days later. Ms Tyndall perceived that BK appeared very happy; with the carer reporting to Ms Tyndall that he had transitioned surprisingly well; albeit whilst missing his former carer (and foster siblings). A report from another caseworker in January 2023 also confirmed that BK was settling in his placement well.

Contact with the mother

24. Ms Tyndall exhibited to her affidavit copies of family time reports on 19 November 2022 and 21 December 2022, which were generally reported by her as being positive.

25. In her affidavit in support of her application, JH states that she is seeking a stay because she is unhappy with her current monthly contact. If she is successful with her appeal, she expects to have more frequent contact, which she anticipates might restore the family time visits to being on a weekly and not a monthly basis; as the arrangements had been before the final orders had been made. She thinks that increased contact between herself and the children will be in the best interests of the children. The grant of a stay now would provide for a ‘smooth transition’ to the children should her appeal be successful.

26. By her Amended Summons, JH’s appeal grounds may be summarised as follows:

1. the reasons for deciding that there was no realistic possibility of restoration to the mother were inadequate;

2. the concerns raised by Children’s Magistrate Richardson had been addressed by the applicant;

3. the Children’s Magistrate Richardson ‘failed to look at’ the applicant’s evidence as she stated in her reasons that the applicant was not a credible witness and did not accept the applicant’s evidence on any relevant topic to be determined and describing her evidence as being ‘bizarre’;

4. there was insufficient evidence to indicate that children’s basic psychological, physical and educational needs would not have been met if returned to the mother’s care;

5. there was insufficient evidence before the court below to indicate that the children would suffer from serious developmental impairment or serious psychological harm if returned to the mother’s care.

27. The reasons for decisions of the Children’s Court were not in evidence before the Court. As I indicated during my exchange with JH during argument, this (amongst other reasons) made it difficult for the Court to form any assessment of the strength of her prospects of an appeal. This indication prompted JH to indicate that she might want more time to put more evidence that went to that issue. However, this did not become necessary in circumstances where the Secretary accepted that the Court could proceed on the assumption that the grounds of appeal were at least arguable. In my view, this Court, on an application of this kind, with truncated evidence, can do no more.

Principles

28. As the Secretary’s written submissions recognise, lodging an appeal from a decision from the Children’s Court to this Court does not operate as a stay, except in so far as the Court directs. The Secretary accepted this Court’s power to grant a stay in care proceedings in an appropriate case, whether under s 156 of the District Court Act 1973 (NSW), or s 67 of the Civil Procedure Act 2005 (NSW).

29. In GR v Secretary, Department of Communities and Justice [2020] NSWSC 607, Slattery J stated (at [21]-[24]) the relevant principles for stay applications in the present context as follows (citations omitted):

“21 (The) Care Act, s 91(7) provides that, subject to any interlocutory order, an appeal does not affect the operation of the order appealed against, nor will it prevent the taking of action to implement the order. This provision recognises the value in Children’s Court proceedings of the certainty of implementing a considered decision unless other interlocutory intervention is indicated.

22. Moreover, UCPR, r 50.7 ^[1] also provides that an appeal to the Supreme Court does not operate as a stay of proceedings under the decision of the court below, except insofar as the Court, or the court below, may direct.

23. The mother needs to identify circumstances that warrant departure from that general position. The general rule is that the judgment below should be presumed to be correct and to be given effect …. That became the central contest in the parties’ submissions.

24. The overriding principle that the Court should apply in any stay application is upholding the interest of justice in the particular circumstances of the case …. The question to be considered is whether the refusal of a stay would not impose irreparable harm in the event that the appeal was successful ...”

1. The same position pertains to appeals to this Court.

30. To that statement of principles, which I respectfully adopt, I also accept that the nature of the proceeding is such that the predominant interest is the welfare and well-being of the children.

Submissions

31. Some of JH’s written submissions extended beyond the evidence presented to the Court in support of her application, in circumstances where the Court had earlier directed the parties to serve evidence before the hearing of the application. Where that is so, I have disregarded the submission since to accede to it would be procedurally unfair to the Secretary and the other respondents, who prepared their submissions on the basis of evidence directed to be served in an orderly way.

32. The thrust of her submissions, however, which reflected what JH expressed in her affidavit, was that if she succeeds with her appeal in this Court, it would be beneficial for the children to have had a smoother transition to the result she anticipates from that successful appeal, being greater regularity of contact with the children.

33. The Secretary submitted that JH’s evidence rose no higher than her expressed dissatisfaction with the living arrangements and merely assumes that that she will succeed in her appeal. It is only on that premise can she submit that there now needs to be an adjustment of her entitlement so as to bring about a smooth transition to the greater contact which she expects will be brought about by her successful appeal. But the Court cannot proceed on the basis that she will likely succeed. At its highest, the Court can proceed on the basis that the grounds she has identified are arguable.

34. The Secretary observed that there was no evidence of any change in circumstances since the final orders were made in the Children’s Court which might elevate the prospects of her obtaining new (and for her more favourable) outcome.

35. The Secretary also submits that there is a certain futility in the application. Even if a stay was ordered in relation to orders 1 & 2 on the motion, there would still be interim orders in place which have the same effect as the final orders. No application has been or probably could be brought to vary the interim orders (under s 70A of the Care Act). That application would be complicated and would involve the Court considering a range of matters which the evidence suggests that the Court is not in a position to undertake. The Secretary submits that the applicant has not established that she would sustain irreparable harm if the application was refused.

36. In respect to orders 3 & 4 on the motion, which concern only findings (no realistic possibility of restoration to the applicant within a reasonable time), they are not amenable to a stay. JH has not been able to demonstrate in the evidence on the application that the findings were incorrect and the Court would be reluctant to interfere with those findings (made by a specialist court) in advance of the appeal.

37. In reply to the Secretary’s submissions, in her written submissions, JH acknowledged the Secretary’s point that she had insufficient grounds for asserting that the Children’s Magistrate was wrong in her decision making. But she said that the appeal had only recently commenced, with little evidence filed and once she has compiled her evidence, she has a ‘considerable argument’ that the Children’s Magistrate erred.

38. At the conclusion of her submissions, she asked the Court for an opportunity to file documents which she thought might persuade the Court about the strength of her case.

39. She submitted that although making reference to the best interests of the children, the Secretary did not explain why dismissal of her application would be in their bests interests nor explain why the grant of a stay should be of a concern.

Consideration

40. As a first, essentially preliminary matter, the Court is not inclined to adjourn the application so as to enable the applicant to compile material which she considers might assist her argument on the present application. As was explained earlier in these reasons, the Court proceeds on the assumed premise that the grounds of appeal argued are reasonably arguable. The strength or otherwise of grounds of appeal are more pertinent where there is a palpable absence of arguable points. Stay applications are not the occasion for dress rehearsals for the hearing of appeals.

41. JH acted with reasonable expedition in bringing the current application, necessarily, on the basis of incomplete material. That is the nature of hearings on stay applications. If the Court was to accede to her application for an adjournment to enable her to compile further evidence, fairness to the Secretary would indicate that the Secretary be given similar opportunity to prepare supplementary evidence; possibly in response to what JH might say. This is not conducive to the proper management of care appeals which are especially appropriate for expeditious determination.

42. As I have indicated earlier, an earlier stay application was brought but refused and case management has resulted in the parties having had ample opportunity to serve evidence in a timely way to bring the current application to a head for this Court’s determination.

43. This leaves JH with her main point, being that the prospect of a successful appeal from the Children’s Court determination is such that it would be beneficial for the children to become accustomed now to greater contact so that upon a successful outcome on appeal for JH, the transition to greater contact would be eased.

44. This submission puts the metaphorical cart before the horse. It presumes the outcome for JH will be successful, with the orders of the Children’s Court set aside or varied to facilitate her greater contact with the children. The submission inverts the ordinary principle of stay applications that orders or judgments below are presumed to be correct; not erroneous. In this regard, in the present context, there is added force to the Secretary’s submission that this Court would naturally be restrained in interfering, especially on an interim basis, with considered findings of the Children’s Court; especially on the truncated evidence before the Court.

45. JH does not address the Court on the alternative counter-factual flowing from the presumption that the orders were correct: what would happen if, having obtained a stay, her appeal was determined to be unsuccessful. If the Court was to act precipitately now, by altering the status quo, to effectively restore the extent of contact with the children to what it was last August (before the impugned orders were made), it faces the prospect of having to alter it again in the event that the appeal fails and the orders of the Children’s Magistrate are undisturbed.

40. There is, I think, a plain and obvious risk of disruption to the children if the Court was to make orders now to restore former contact and be forced, in the event of an unsuccessful appeal, to make yet more orders, restoring the level of contact to the position as determined by the Court below on an unsuccessful appeal.

41. I am not persuaded that irreparable harm will be caused if the status quo determined since last August endures until such time as the Court determines the appeal. The applicant’s capacity to run her appeal will not have been stifled. To that end, the appeal should be heard with expedition. In this last respect, I note that the proceeding is expected to return to the Court on 8 May 2023, if not sooner (depending on whether there is a filing of an application for an updated assessment).

42. I also accept the Secretary’s additional point that there is an element of futility in the application in any event. Even if the applicant succeeds in obtaining a stay, she would need to also persuade the Court to alter interim orders made by the Children’s Court on 10 March 2021. That was not part of her application nor was the subject of evidence which would need to persuade the Court why variation or alteration of the interim orders was necessary, having regard to the considerations in ss 70 and 70A of the Care Act; and the evidence of Ms Tyndall (at paragraph 48 of her affidavit) which the Secretary would doubtless have relied upon in opposition to any application for variation of the interim orders.

43. I am not persuaded that a stay of the orders or findings of fact (assuming, in JH’s favour, orders 3 & 4 of the motion were even amenable to a stay) in JH’s motion is an appropriate exercise for the Court’s discretion.

Orders

50. The applicant’s notice of motion filed 13 December 2022 is dismissed.

51. No application was made by the Secretary for costs, so there will be no order as to costs.

52. There will be a notation to accompany these orders that on the next occasion when the appeal is before the Court for case management, parties should be in a position to assist the Court to bring the hearing of the appeal with expedition.

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Endnote

Decision last updated: 17 February 2023