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

District Court

New South Wales

Medium Neutral Citation: KH v Secretary, Department of Communities and Justice [2021] NSWDC 498
Hearing dates: 24, 25 August; 18 September; 1, 23 October; 6, 20 November; 4 December 2020; 1 April, 3, 4, 5, 6, 7, 10, 11, 12, 13, 14 May and last submissions 16 July 2021
Date of orders: 21 September 2021
Decision date: 21 September 2021
Jurisdiction: Civil
Before: Judge Levy SC
Decision:
See paragraph [652] for orders

Catchwords:
CHILD CARE APPEAL – rehearing of child care and protection proceedings where final orders were made in the absence of the child’s mother in the Children’s Court at Port Kembla on 4 March 2019 – finding that procedural fairness was not afforded to the mother – finding made pursuant to s 83(2) and s 83(8A) of Children and Young Persons (Care and Protection) Act 1998 concerning the existence of a realistic possibility of the child the subject of the appeal being restored into the parental responsibility of the appellant within a reasonable period – requirement for an Amended Care Plan to be prepared to reflect findings before final orders are made – interim preservation of orders made by Children’s Court pending final orders

Legislation Cited:
Children and Young Persons (Care and Protection) Act 1998, Pt 1, Pt 2, s 9, s 10A, s 28, s 78A, s 79, s 83, s 84, s 90, s 91, s 93, s 94, s 99B, s 105, s 107
Civil Procedure Act 2005 (NSW), s 26
UCPR Sch 7, cl 3(e)

Cases Cited:
D v C; Re B (No 2) [2018] NSWCA 310
The Secretary of the Department of Communities and Justice (DCJ) and Fiona Farmer [2019] NSWChC 5
Vaccaro v MLC Limited [2016] NSWDC 85

Category: Principal judgment
Parties: KH (Appellant)
Secretary, Department of Communities and Justice (Respondent 1)
No appearance for second respondent father
No appearance for third respondent grandmother
Mr D Schier, Independent Children’s Representative
Representation:
Counsel:
In Person (Appellant)
Mr B Dean (Respondent 1)
Mr D Schier, solicitor (Independent Legal Representative)
Solicitors:
Crown Solicitor (Respondent 1)

File Number(s): 2019/105176
Publication restriction: Non-publication order

Judgment

Table of Contents

PART A - INTRODUCTION

[2] – [70]

Child care appeal

[3]

Non-publication order

[4] – [5]

Summary of outcome

[6] – [35]

Appellant’s self-representation

[36]

Termination of legal aid grant

[37] – [54]

Procedural background of the appeal

[55] – [59]

Final orders of the Children’s Court

[60] – [67]

Issues for determination

[68]

Applicable legal principles

[69] – [70]

PART B - APPELLANT’S CIRCUMSTANCES, EVIDENCE REVIEW

[71] – [321]

Credibility and reliability of appellant’s testimony

[72] – [86]

Appellant’s circumstances

[87] – [156]

Family background

[94] – [102]

Unaddressed sexual assault in childhood

[103] – [104]

Difficulties in appellant’s adolescent years

[105]

Non-participation of the appellant’s mother

[106] – [111]

Early motherhood with first child at age 16 years

[112]

The birth of the subject child in 2011

[113] – [117]

Educational and work achievements

[118] – [124]

Housing and neighbour issues

[125]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading KH v Secretary, Department of Communities and Justice

Details

AGLC: KH v Secretary, Department of Communities and Justice [2021] NSWDC 498
Case: [2021] NSWDC 498
Decision Date: 21 September 2021

CaseChat Overview and Summary

In the case of KH v Secretary, Department of Communities and Justice, the appellant, KH, sought a review of child care and protection proceedings. These proceedings involved her child, where final orders were made in the Children’s Court at Port Kembla on 4 March 2019, in the absence of the child’s mother. The dispute centred on whether procedural fairness was afforded to the mother and whether there existed a realistic possibility of the child being restored to the parental responsibility of the appellant within a reasonable period. The appeal was heard by the Supreme Court of New South Wales.

The legal issues before the court encompassed whether the Children’s Court had correctly applied the statutory provisions regarding procedural fairness and the realistic possibility of restoration of parental responsibility. The court had to determine if the findings made by the Children’s Court were supported by the evidence and whether the appropriate legal standards were met. Specifically, the court examined whether the Children and Young Persons (Care and Protection) Act 1998 was properly applied concerning the procedural fairness to the mother and the potential for the child’s return to the appellant's care.

The court found that procedural fairness was not afforded to the mother, as her absence was not justified under the circumstances. Furthermore, the court held that there was a realistic possibility of the child being restored to the appellant’s care within a reasonable period. Consequently, the court ordered that an Amended Care Plan must be prepared to reflect these findings. Pending the final orders, the court also made interim preservation of the orders made by the Children’s Court. The detailed orders are outlined in paragraph [652].

Orders

Orders of the court

See paragraph [652] for orders

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	KH v Secretary, Department of Communities and Justice [2021] NSWDC 498
Hearing dates:	24, 25 August; 18 September; 1, 23 October; 6, 20 November; 4 December 2020; 1 April, 3, 4, 5, 6, 7, 10, 11, 12, 13, 14 May and last submissions 16 July 2021
Date of orders:	21 September 2021
Decision date:	21 September 2021
Jurisdiction:	Civil
Before:	Judge Levy SC
Decision:	See paragraph [652] for orders
Catchwords:	CHILD CARE APPEAL – rehearing of child care and protection proceedings where final orders were made in the absence of the child’s mother in the Children’s Court at Port Kembla on 4 March 2019 – finding that procedural fairness was not afforded to the mother – finding made pursuant to s 83(2) and s 83(8A) of Children and Young Persons (Care and Protection) Act 1998 concerning the existence of a realistic possibility of the child the subject of the appeal being restored into the parental responsibility of the appellant within a reasonable period – requirement for an Amended Care Plan to be prepared to reflect findings before final orders are made – interim preservation of orders made by Children’s Court pending final orders
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998, Pt 1, Pt 2, s 9, s 10A, s 28, s 78A, s 79, s 83, s 84, s 90, s 91, s 93, s 94, s 99B, s 105, s 107 Civil Procedure Act 2005 (NSW), s 26 UCPR Sch 7, cl 3(e)
Cases Cited:	D v C; Re B (No 2) [2018] NSWCA 310 The Secretary of the Department of Communities and Justice (DCJ) and Fiona Farmer [2019] NSWChC 5 Vaccaro v MLC Limited [2016] NSWDC 85
Category:	Principal judgment
Parties:	KH (Appellant) Secretary, Department of Communities and Justice (Respondent 1) No appearance for second respondent father No appearance for third respondent grandmother Mr D Schier, Independent Children’s Representative
Representation:	Counsel: In Person (Appellant) Mr B Dean (Respondent 1) Mr D Schier, solicitor (Independent Legal Representative) Solicitors: Crown Solicitor (Respondent 1)
File Number(s):	2019/105176
Publication restriction:	Non-publication order

PART A - INTRODUCTION	[2] – [70]
Child care appeal	[3]
Non-publication order	[4] – [5]
Summary of outcome	[6] – [35]
Appellant’s self-representation	[36]
Termination of legal aid grant	[37] – [54]
Procedural background of the appeal	[55] – [59]
Final orders of the Children’s Court	[60] – [67]
Issues for determination	[68]
Applicable legal principles	[69] – [70]
PART B - APPELLANT’S CIRCUMSTANCES, EVIDENCE REVIEW	[71] – [321]
Credibility and reliability of appellant’s testimony	[72] – [86]
Appellant’s circumstances	[87] – [156]
Family background	[94] – [102]
Unaddressed sexual assault in childhood	[103] – [104]
Difficulties in appellant’s adolescent years	[105]
Non-participation of the appellant’s mother	[106] – [111]
Early motherhood with first child at age 16 years	[112]
The birth of the subject child in 2011	[113] – [117]
Educational and work achievements	[118] – [124]
Housing and neighbour issues	[125]…