KH v Secretary, Department of Communities and Justice

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].