Re Leonardo - [2022] NSWSC 1265

Supreme Court

New South Wales

Medium Neutral Citation: Re Leonardo [2022] NSWSC 1265
Hearing dates: 7 September 2022
Date of orders: 7 September 2022
Decision date: 21 September 2022
Jurisdiction: Equity - Duty List
Before: Meek J
Decision:
Restrain Minister for Families, Community and Disability Services from removing Leonardo from the care of the plaintiffs on terms

Catchwords:
CHILD WELFARE — Parens patriae — Very young infant (30 months) placed with plaintiffs for prior 15 months — interim parental responsibility allocated to Minister — Minister and Secretary pursue transition plan for permanent placement with paternal uncle — Plaintiffs’ application for joinder to Children’s Court proceedings opposed and dismissed — Plaintiffs essentially desire permanent placement of infant child — Urgent hearing — infant to be removed within days — Restraining order made
PRACTICE — Parens patriae — Amended Summons makes reference to an independent children's lawyer (ICL) who has represented the interests of child in the Children's Court — ICL not named as a party as such — Nonetheless served with notice of application
CHILD WELFARE — Parens patriae — Nature of care and protection jurisdiction — Exceptional nature of jurisdiction where proceedings in Children’s Court and appeal decision of Magistrate refusing joinder of applicant to proceedings — Analogous approach to circumstance where applicants also challenge substantively seek to challenge decisions of Minister and Secretary regarding placement and transition plans
CHILD WELFARE — Parens patriae — consideration of permanent placement principles in s 10A(3)(b) of the Children and Young Persons (Care and Protection) Act1998 (NSW)
INTERPRETATION — What use can be made of extrinsic materials — Explanatory notes, second reading speeches, relevant material in the Hansard record of debates

Legislation Cited:
Adoption Act 2000 (NSW)
Child Protection Legislation Amendment Act 2014 (NSW), Sch 1
Child Protection Legislation Amendment Bill 2013 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 3, 8, 9, 10A, 17, 18, 19, 54, 69, 78, 78A, 79, 79A, 82, 83, 90AA, 91, 93, 94, 98, 99D, 143, 149I, 150, 232, 245, 247, Ch 8
Children's Guardian Act 2019 (NSW)
Civil Procedure Act 2005 (NSW), ss 56, 98
Court Suppression and Non-publication Orders Act 2010 (NSW), s 4
Interpretation Act 1987 (NSW), ss 33, 34
Uniform Civil Procedure Rules 2005 (NSW), r 42.7
Voluntary Assisted Dying Act2022 (NSW), s 13

Cases Cited:
AB & JB v Secretary [2021] NSWDC 626
Builders Licensing Board v Mahoney (1986) 5 NSWLR 96
CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855
Cowling v Cowling (1998) FLC 92-801
DZU v Foundations Care [2021] NSWCATAD 142
Foster Carer v Department of Family and Community Services [2017] NSWDC 360; (2017) 26 DCLR (NSW) 66
Goktas v Government Insurance Office of New South Wales (1993) 31 NSWLR 684
GR v Secretary, Department of Communities & Justice; Minister for Families, Communities and Disability Services [2021] NSWCA 301
GR v Secretary, Department of Communities and Justice [2021] NSWCA 267
GR v Secretary, Department of Families, Disabilities and Community Services [2019] NSWCA 277
KH v Secretary, Department of Communities and Justice [2021] NSWDC 498
LZ and QJ v Family and Community Services [2017] NSWDC 414
Ping v Van Der Kroft [1982] 2 NSWLR 731
Re Adoption of IEK [2019] NSWSC 171
Re Anna, Bruno, Courtney and Deepak [2001] NSWSC 79
Re Baby S [2014] NSWSC 871
Re Frances and Benny [2005] NSWSC 1207
Re Georgia and Luke [2008] NSWSC 1277
Re Harris (1936) 37 SR (NSW) 17
Re June (No 2) [2013] NSWSC 1111
Re K’s Statutory Will [2017] NSWSC 1711
Re Linda [2011] NSWSC 1596
Re Tilly and Tilly and Minister for Family & Community Services [2015] NSWSC 1208
Re Tilly and Minister for Family and Community Services [2015] NSWSC 229
Re Victoria [2002] NSWSC 647; (2002) 29 Fam LR 157
Re Weir (1953) 70 WN (NSW) 78
Rogers (a pseudonym) v Secretary, Department of Family and Community ServicesNSW [2019] NSWDC 194
Secretary of the Department of Communities and Justice v Fiona Farmer [2019] NSWChC 5
Secretary, Department of Communities and Justice v KH [2021] NSWCA 308
Secretary, Family and Community Services v AH and AN [2017] NSWDC 412
SK v Secretary, Department of Family and Community Services [2016] NSWDC 273
SL v Secretary, Department of Family and Community Services [2016] NSWCA 124
Stanley v Director of Public Prosecutions (NSW) [2021] NSWCA 337; (2021) 398 ALR 355
T v H (1985) 3 NSWLR 270
TF v Department of Family & Community Services [2015] NSWSC 694

Category: Procedural rulings
Parties: C (First Plaintiff)
[redacted] (Second Plaintiff)
Secretary, Department of Communities and Justice (First Defendant)
MGM (Second Defendant)
M (Third Defendant)
Minister for Families, Community and Disability Services (Fourth Defendant)
Representation: Counsel:
N J Bateman (Plaintiffs and Second Defendant)
M W Anderson (First and Fourth Defendants)
Solicitors:
King Cain (Plaintiffs)
Kenny Spring Solicitors (Second Defendant)
Crown Solicitor’s Office (First and Fourth Defendants)

File Number(s): 2022/261908

Judgment

HIS HONOUR: On 7 September 2022, I heard an urgent application to restrain the Minister for Family and Community Services (Minister) from removing a child, who for the purposes of these proceedings is to be referred to as Leonardo, in the care of the plaintiffs.
In exercising the parens patriae jurisdiction the Court orders that the name of the child, the subject of the proceedings, not be published: see GR v Secretary, Department of Families, Disabilities and Community Services [2019] NSWCA 277 at [1] per Brereton JA (Emmett AJA agreeing).
At the conclusion of the hearing, I made orders which amongst other things restrained the Minister from removing Leonardo from his current placement.
The orders I made are set out below.
Having regard to the nature of the matter and the fact that the order I made involves an exceptional exercise of the parens patriae jurisdiction of this Court, I indicated to the parties that I would give reasons for the decision.
What follows are the reasons for the orders which I made.
I note that pursuant to the orders the parties sought to relist the matter before me. The matter was relisted on 16 September 2022. I separately addressed that application.

Introduction

The proceedings involve consideration of the provisions of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (Care Act). I refer to a number of these provisions below including relevantly s 10A(3)(b) Care Act.

Amended Summons

The proceedings were commenced by a Summons filed on 2 September 2022. On 5 September 2022 in an application for short service of the Summons I permitted an Amended Summons to be returnable on 7 September 2022.
The only relevant amendment to the Summons was to name Leonardo's mother (M) as the third defendant in the proceedings.
The Amended Summons sought the following relief:

“1.    That this application be listed urgently.
2.    That until the proceedings in the Children's Court … have been determined on a final basis:
(a)    All aspects of Parental Responsibility in respect of residence for [Leonardo] … be allocated to the First and Second Plaintiff's [sic].
(b)    That the Department of Communities and Justice be restrained from removing [Leonardo] from the care of the First and Second Plaintiff's [sic].”

Parties

In giving the reasons for judgment I will also anonymise the names of those in connection with Leonardo, lest he might be identified by reference to those other persons.
On the hearing there was need to regularise some issues of joinder of, and reference to, appropriate parties in the proceedings. I refer to this below.
The plaintiffs are husband and wife who have, pursuant to an out-of-home placement, the current care of Leonardo.
The plaintiffs have a number of children of their own, including two children who had been placed in their care and subsequently adopted by them.
The first defendant was named as the Department of Communities and Justice (DCJ), the second defendant named is the maternal grandmother of Leonardo (MGM).
The Amended Summons made reference to an independent children's lawyer who has represented the interests of Leonardo in the Children's Court (ICL).
The ICL was not at the least in terms named as a defendant.

Regularisation of parties and appointment of an independent legal representative

Counsel submitted that generally speaking the child is not a party to the parens patriae jurisdiction and it is frowned upon to name solicitors in their personal capacity as a defendant. If however the child is joined as a defendant that can only be done by means of a tutor unless there is an order dispensing with the need for a tutor: T7.
The Care Act distinguishes between an independent legal representative and a direct legal representative: s 99D.
Ordinarily it is not appropriate for a legal representative, in such a capacity, to be directly named as a party in the proceedings: see GR v Secretary, Department of Communities and Justice [2021] NSWCA 267 per Simpson AJA.
This Court has expressed some reservations about the statutory basis for the appointment by the Supreme Court or the Court of Appeal of an independent legal representative: see GR v Secretary, Department of Communities and Justice [2021] NSWCA 267 per Simpson AJA; GR v Secretary, Department of Communities & Justice; Minister for Families, Communities and Disability Services [2021] NSWCA 301 at [20], [30]: T36
Nonetheless, apart from the provisions of the Care Act, the Civil Procedure Act2005 (NSW) (CPA) and the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), judges of the Equity Division have regularly appointed independent legal representatives to represent the interests of children in cases involving the parens patriae jurisdiction: GR v Secretary, Department of Communities & Justice; Minister for Families, Communities and Disability Services [2021] NSWCA 301 at [30].
In the events which occurred whilst I directed that the ICL be served with a copy of the Amended Summons, on the hearing of the application the ICL did not appear (T1) although the ICL had been served: T2.

Urgent hearing of Amended Summons

On 7 September 2022, as Equity Duty Judge I heard the Amended Summons urgently on that date.
The reason for dealing with the matter urgently was that pursuant to a transition plan of the Minister (about which I will say more below), it was proposed that on Saturday, 10 September 2022, Leonardo would be moved from the effective care of the plaintiffs (albeit not entirely separated from them having regard to some further proposed occasions of weekend visiting) and placed in the care of his paternal uncle (PU).

Representation

On the hearing Mr Anderson appeared for the Secretary, DCJ (Secretary) and the Minister, and Mr Bateman appeared for the plaintiffs, and mentioned the matter on behalf of the MGM: T1.
M was served and Mr Bateman handed up an email from M’s solicitor explaining her position: T2.
During the course of the hearing and ultimately as recognised in the orders I made, there was a regularisation of the parties to the proceedings such that the first defendant was more correctly named as the Secretary (as distinct from the DCJ) and the Minister, in whose interim care all aspects of parental responsibility for Leonardo had been allocated pursuant to the provisions of s 69 Care Act, was added as a party: T1, 6, 48-49.
Mr Anderson facilitated that process without fuss, properly and appropriately, and entirely consistent with the good practice of counsel, quite apart from the duties of legal practitioners to the court pursuant to the provisions of s 56 Civil Procedure Act 2005 (NSW) (CPA).
In the result, the Minister was named as fourth defendant in the proceedings.

Proposed orders

On the application Mr Bateman moved on the Amended Summons and handed up short minutes of order in the following terms:

“1.    That until the proceedings in the Children's Court … have been determined on a final basis:
a.    All aspects of Parental Responsibility in respect of residence for [Leonardo] be allocated to the First and Second Plaintiff's [sic].
b.    That the Secretary of the Department of Communities and Justice be restrained from removing [Leonardo] from his placement with the Plaintiffs before the resolution of proceedings [in the Children's Court] except where the Secretary or his delegate reasonably considers that there is an immediate risk of harm to the child on fresh information about such risk of harm.

2. That the Plaintiffs undertake to do all acts and things to seek expedition of the appeal proceedings in the New South Wales District Court.”

It transpired that the wording of that order was framed having regard to the framing of an order made by Rein J, as referred to by Brereton J in Re Tilly and Minister for Family & Community Services [2015] NSWSC 1208 at [28]: T38-39.
Mr Anderson accepted that the plaintiffs had standing, at least in their capacity as carers of the child, to apply to this Court to seek the relief under its parens patriae jurisdiction: T29.

Evidence

Mr Bateman read the affidavit of the first plaintiff affirmed 2 September 2022 without objection: T3.
He read the affidavit of MGM sworn 6 September 2022 without objection: T5.
Mr Anderson read the affidavit of a caseworker (SR) affirmed 7 September 2022 and an exhibit SR-1 without objection: T3,4.
Additionally, Mr Anderson tended Minutes of a Meeting dated 18 August 2022, which minutes had been prepared by a caseworker (DK) from VH: Exhibit D1-1, T4.
VH is an entity which provides accommodation and services to children and young persons. It is a designated agency for the provision of out-of-home care (a term defined by reference to the Children's Guardian Act 2019 (NSW)) for the purposes of Chapter 8 of the Care Act.
Mr Bateman objected to the accuracy of the minutes noting that the plaintiffs had not been given any opportunity to review the draft minutes or provide comment regarding the minutes: T4.
I permitted the minutes to be admitted though noted and established with Mr Anderson that he accepted that the plaintiffs (who were attendees at the meeting) had not had input into the preparation of the minutes.
During the course of the hearing, a placement policy of the DCJ (Placement Policy), which during the course of submissions had been referred to, was handed up and marked as MFI-1.
I will address below the relevant legislative structure and applicable principles of the parens patriae jurisdiction.
Prior to doing so, I set out some details in respect of the matter which details are except as indicated, not relevantly in dispute.

Factual background

In late 2020, the plaintiffs were assessed for suitability as foster carers by Continuum Consulting Australia Pty Limited (Continuum Consulting).
On 15 December 2020, the assessor provided a report recommending that the plaintiffs be approved as carers.
In relation to placement options, it may be noted that the report indicated that the plaintiffs were interested in permanency care (long-term, guardianship and/or adoption) and had satisfied the criteria for that. That was in distinction to approval in a sense, for respite, care, emergency care and restoration care.
The report concluded that the plaintiffs presented as experienced parents/carers with a very clear idea of how they intended to build on their family and strong awareness of the dynamics of their family functioning and their needs of the children.
The report further indicated that the couple presented as a strongly united couple, respectful and loving towards each other and sensitive to each other's needs, as well as those of their children.
A summary of the assessment concluded that the plaintiffs wish to be considered for long-term care, guardianship, adoption of a child and that the assessment interviews undertaken indicated their suitability and experience in that regard.
On 19 January 2021, the plaintiffs were advised by VH by letter that they had been authorised to provide care for children and young people under the Care Act and that their current authorisation was for "long-term" care.
The continued authorisation was dependent upon a number of considerations and conditions. However, there is no suggestion in the proceedings that any of those considerations or conditions have not been complied with.
On 2 June 2021, the plaintiffs received a phone call from BT of VH and were advised that they had a baby boy to place with them. During the phone call the first plaintiff was advised by BT in words to the effect that it was a long-term placement with strong potential for guardianship and then potentially adoption.
On 3 June 2021, Leonardo was placed with the plaintiffs.
On 4 June 2021, the plaintiffs signed a Carer Placement Agreement. The Carer Placement Agreement expressly in its terms designates the type of care as being "long-term" care.
Further on 4 June 2021 the Secretary filed a Care Application with the Children's Court seeking an interim order allocating interim parental responsibility to the Minister.
I will not recite the grounds of the application, other than to note that (in the period prior to the placement with the plaintiffs) there was said to be a basis for concern that Leonardo may be exposed to abuse or harm and that his basic physical, psychological and educational needs were not being met or not likely to be met.
The evidence of SR is that Leonardo was placed with the plaintiffs because of concerns including physical abuse and drug use. SR says that at the time Leonardo was placed with the plaintiffs the Secretary was yet to make a decision regarding whether there was a realistic possibility of restoring Leonardo to his parents.
On 8 June 2021, the Children's Court pursuant to s 69 Care Act ordered that all aspects of parental responsibility for Leonardo, on an interim basis, be allocated to the Minister.
In September 2021, PU and the aunt expressed interest in being assessed as Leonardo's long-term carer.
On 7 September 2021, SR completed a referral form to Continuum Consulting to assess the PU and aunt as a relative or kinship carer.
I pause to note that the Secretary did not additionally ask Continuum Consulting to make a specific assessment in relation to the plaintiffs for Leonardo's long-term care (notwithstanding the earlier assessment conducted by Continuum Consulting approving the plaintiffs for long-term care).
The earlier assessment by Continuum Consulting of the plaintiffs as carers was essentially a general assessment for their suitability for long-term care, rather than specifically in relation to Leonardo.
The plaintiffs indicate that Leonardo took some time to settle down into a routine, in particular during COVID and would occasion hide when contact workers arrived for Leonardo to be taken for visits.
On 7 October 2021, pursuant to s 78 and s 83 of the Care Act the Secretary filed a Care Plan (Care Plan) proposing that there was no realistic possibility of restoration of Leonardo to either of his parents and proposed that Leonardo remain under the parental responsibility of the Minister until he attained the age of 18.
The Care Plan described Leonardo’s current care arrangements as "in a short to medium term placement with [VH] Carers…".
I pause to note that that description is at odds with what the plaintiffs were informed regarding the placement and indeed the Carer Placement Agreement.
The Care Plan identified the PU and aunt as a possible permanent placement for Leonardo.
The strong implication from the evidence is that by reference to the Placement Policy of the Secretary and the steps taken by the Minister and Secretary below, the plaintiffs were not, as part of the Care Plan, considered as possible candidates for a permanent placement.

In December 2021, the maternal grandparents also expressed interest in being assessed as Leonardo's long-term carer. SR accordingly, arranged for VH to complete a relative or kinship care assessment in that regard.
On 13 December 2021, the plaintiffs filed an application and affidavit in the Children's Court seeking that they be joined as a party to the proceedings before the Court regarding placement of Leonardo.
For reasons which are not entirely apparent there was no listing of that application until 20 April 2022.
On 23 December 2021, the plaintiffs had a supervised Christmas get-together with Leonardo's family, including his mother, maternal grandparents, sister and cousins.
Throughout December 2021 to January 2022, the plaintiffs began taking Leonardo to and from contact visits in order to minimise his trauma and separation anxiety and VH gave the plaintiffs’ permission for Leonardo to have informal contact with his maternal grandparents.
On 11 March 2022, SR received the report from Continuum Consulting in relation to the PU and aunt. The report recommended that they be authorised to care for Leonardo on a long-term basis.
On 24 March 2022, SU received from VH team leader MH, a letter identifying a number of major concerns in relation to the maternal grandparents arising from the kinship or carer assessment. The recommendation was that the assessment not proceed and that the maternal grandparents not be authorised as carers for Leonardo.
In March 2022, Leonardo met his PU for the first time.
At that stage contact visits occurred fortnightly initially for 1.5 hours then increasing to 2 hours.
The plaintiffs give evidence there was some initial problems with Leonardo being agitated and unsettled after contact visits with his PU and aunt.
On 6 April 2022, the plaintiffs were advised by KW and DK (VH caseworkers) that Leonardo would be leaving their care and would be removed as soon as his PU carer’s authorisation was completed, "even if final orders have not yet been made". The plaintiffs were informed it could be a couple of weeks or a couple of months before that occurred.
KW and DK informed the plaintiffs that they (the plaintiffs) were not being considered for Leonardo's placement as the DCJ was following permanency planning principles in pursuing a placement with a relative, and as the plaintiffs were not Leonardo's relatives, they were not being considered.
On 20 April 2022, the plaintiffs’ solicitor wrote to the Secretary seeking an assurance that the Secretary would not remove Leonardo from the plaintiffs’ care until the proceedings were finalised.
On 21 April 2022, a Notice of Listing was issued from the Children's Court providing amongst other things, for the Secretary to file any affidavit evidence a response to the plaintiffs’ application.
On 23 May 2022, the plaintiffs were advised by KW and DK that the DCJ was fully committed to having Leonardo placed with his PU indicating to them that he would be placed with them, "as soon as their authorisation is through”. Further, they advised the plaintiffs that ultimately the Secretary makes a recommendation and that the Court generally supports it.
On 25 May 2022, the Secretary filed affidavit evidence at least from SR. In such affidavit SR acknowledged that the plaintiffs have a genuine concern for the safety, welfare and well-being of Leonardo.
The plaintiffs’ solicitor again wrote to the Secretary seeking an undertaking that Leonardo would not be removed from the plaintiffs’ care until the issue as to placement had been determined and the Children's Court proceedings finalised. They requested an undertaking by 4 PM on Monday, 27 June 2022.
On 30 May 2022, the plaintiffs asked the VH caseworker whether an assessment could be conducted regarding Leonardo's attachments and the effect on him of being removed from the plaintiffs’ care. They were informed by KW that she did not have much influence to organise that.
At the same time KW informed the plaintiffs that a visit that Leonardo had had with his PU had been cut short by half an hour because of Leonardo's distress.
By the end of May, following a further visit with PU Leonardo was unsettled for three or four nights.
On 3 June 2022, what is described as a complaints meeting was held between MH, DK and the plaintiffs in which the plaintiffs were informed that either Leonardo's PU or his paternal grandfather had made some complaint that Leonardo should not be referring to the plaintiffs as "mum" and "dad”.
Up until 7 June 2022, the plaintiffs say that they were advised by the case and contact workers of only positive things about their interactions with Leonardo's family.
On 7 June 2022, there was a listing before the Children's Court. The plaintiffs were advised that the Secretary opposed their application to become parties. The Secretary also opposed the application by the MGM to become a party to the proceedings.
The plaintiffs were advised by DK that the relevant CSC "has advised that [the plaintiffs] were no longer able to see [Leonardo]'s grandparents without supervision as they were not suitable carers”.
On 21 June 2022, DK emailed the plaintiffs advising them that they were no longer to transport Leonardo to and from contact visits, rather the contact workers would collect and return Leonardo from their care.
On 24 June 2022, the second plaintiff had a meeting with KW and was told that they had stopped the MGM's visits on the advice of the Secretary because of the court case.
On 28 June 2022, the plaintiffs were told that the DCJ had no immediate plans to remove Leonardo from his current placement and in the event that the DCJ intended to commence the transition of Leonardo or change placements that the DCJ would as a matter of courtesy inform them.
On 18 July 2022, there was a hearing of the plaintiffs’ application for joinder to the Children's Court proceedings. The hearing proceeded and the matter was adjourned to 15 August 2022 for delivery of judgment.
On 2 August 2022, SW and SR met with VH manager DK, BH and a provisional psychologist JS to develop a transition plan for Leonardo to move from his placement with the plaintiffs to his placement with the PU and aunt.
Following the meeting, JS, in conjunction with VH psychologist PR prepared a consultation report to inform Leonardo's transitioning planning.
On 8 August 2022, the Secretary authorised the PU and aunt as Leonardo's long-term carers.
SR upon receipt of the consultation report developed a proposed transition plan for Leonardo.
On 13 August 2022, contact visits between Leonardo and his PU increased from 2 hours to 4 hours and since that time, in accordance with the transition plan.
The plan provided for Leonardo to spend the day with the PU and aunt on 26 and 27 August 2022, spend overnight time with the PU and aunt on 3 and 4 September 2022 and to transition (permanently) Leonardo to the PU and aunt’s care on 10 September 2022, albeit providing for some visits to the plaintiffs.
There is clearly some conflict on the evidence regarding Leonardo’s reaction to the contact visits between Leonardo and the PU aunt.
The plaintiffs contended that on the first extended visit Leonardo returned to the plaintiffs’ care approximately 20 minutes early because Leonardo was "tired". They state that numerous other visits have also been cut short and Leonardo has been returned early.
On 15 August 2022, the Children's Court delivered its judgment dismissing the plaintiffs’ application to become a party to the proceedings.
On the hearing of the application before me, I was informed that the Magistrate delivered an ex tempore judgment: T8. I was not provided with any transcript of those reasons (quite possibly because the transcript has not been prepared). However, I was not otherwise provided with any summary of the reasons.
I pause to note that in circumstances in which transcripts are not prepared, the Court may receive evidence by affidavit of notes of person present at the hearing detailing the reasons given: see e.g. Builders Licensing Board v Mahoney (1986) 5 NSWLR 96; Goktas v Government Insurance Office of New South Wales (1993) 31 NSWLR 684.
Despite the non-availability of reasons I was asked to proceed with the matter and Mr Anderson did not submit otherwise.
On 17 August 2022, solicitors on behalf of Leonardo's mother sought an undertaking from the Secretary, not to alter Leonardo's placement until the court processes had been finalised.
On 18 August 2022, there was a meeting between the plaintiff and VH caseworkers in which the plaintiffs were advised that the purpose of the meeting was to inform them of the transition plan that the Secretary had developed to transition Leonardo to his PU’s care and they were advised of certain other matters.
Following the judgment of the Children's Court Magistrate, the plaintiffs lodged a Notice of Appeal to the District Court.
A party to proceedings who is dissatisfied with an order (other than an interim order) of the Children’s Court may appeal to the District Court as of right against the order: s 91(2) Care Act; T11.
Such an appeal is by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence on which the order was made, may be given on the appeal: s 91(2) Care Act.
The first plaintiff gave evidence in the proceedings (which was not objected to) that it was her understanding of the Magistrates reasons that whilst the Magistrate accepted that the plaintiffs have a genuine concern for Leonardo's safety, welfare and well-being, that their application was dismissed (in summary) because notwithstanding that they were suitable carers for Leonardo, "priority was to be given to suitable family members": First plaintiff’s affidavit [32].
On 23 August 2022, the plaintiffs’ solicitors wrote to the Secretary requesting an undertaking not to transition Leonardo or pursue the current transition plan until the Children's Court proceedings had been concluded and advised that in the absence of an undertaking that the plaintiffs’ solicitor had instructions to commence proceedings in this Court. I am informed that no response had been received to that correspondence.
On 24 August 2022, solicitors on behalf of Leonardo's mother sent a further letter to the Secretary requesting an undertaking not to transition Leonardo from his current care arrangements.
On 25 August 2022, the plaintiffs were advised by their solicitor that the DCJ asserted that it had obtained its own psychiatric assessment of Leonardo on which it was relying. However, the plaintiffs have not been provided with a copy of any such report nor have they been informed of its contents.
On 29 August 2022, the matter was mentioned again at the Children's Court and Leonardo's mother and MGM sought an undertaking that Leonardo would not be removed until the care proceedings had been determined. The Secretary formally refused to give any such undertaking and advised that Leonardo's transition to the care of his PU would be completed by Saturday, 10 September 2022.
A request was made on the part of Leonardo's mother and MGM for a Children's Court Clinic Assessment Report to assess, amongst other things, the nature and extent of Leonardo's relationship with the plaintiffs (bonding and attachment) and the effect on Leonardo of any change to his circumstances, including the changes proposed by the Secretary and also to report on the effect on Leonardo of being removed from regular contact not only with his mother and MGM but also his sister who resides with his MGM.
The Secretary opposed that application.
On 4 September 2022, SR received an email from the PU informing SR that Leonardo had had a positive experience during his weekend stay and was settled.
On 12 September 2022, the matter was to be listed before the Children's Court for further directions.
On 17 October 2022, the appeal listing is before the District Court for mention.
I was informed that whilst priority is given to matters involving the care of children, there is no certainty that the appeal will be heard by the District Court on or immediately after 17 October 2022.

Placement Policy

The relevant provisions of the Placement Policy (being MFI-1) which I was provided is headed "Relative/kin care placement".
That part of the Placement Policy provides as follows:

“Relative/kin care placement
Placement with family/kin will always be the best possible placement for a child as:
•    it preserves their identity, language, cultural and religious ties
•    it maintains relationships with people significant in their lives, including parents, siblings, extended family, peers, family friends and community
•    it provides them with security and stability while in OOHC
•    it aligns with the permanent placement principles (section 10A) and Aboriginal and Torres Strait Islander Child Placement Principles (section 13).
Identifying family/kin occurs in consultation with the child, their parents and family/kin.
•    The department's preferred model is Family Finding©, a model that seeks to connect children with parents, siblings, family/kin and other supportive persons who will love and care about them now and throughout their lives.
Family finding© aims to locate, connect and engage parents, siblings, family/kin or other supportive persons to build a child's lifetime support network and enhance placement permanency, whether through restoration, guardianship or long term care.
•    While not its main purpose, family finding can identify family/kin who may be able to provide relative/kin care, respite care or guardianship placements.
Where appropriate, provisional or full assessment and authorisation is carried out early to ensure these placement options are available when required.
Service providers receive a baseline service package including funding for recruiting, assessment and authorisation of relative/kin carers (in addition to foster carers).”

There is a further part of the Placement Policy document which is headed “Foster care placement”.
However, it suffices to note that the above section regarding “Relative/kin care placement” opens with words “Placement with family/kin will always be the best possible placement for a child”.

Care and protection jurisdiction

It is generally necessary to distinguish between the jurisdiction which the Court exercises in relation to children and young persons.
The Court has inherent parens patriae jurisdiction and also statutory jurisdiction.
A number of statutory provisions indicate that the legislation does not limit the jurisdiction or inherent jurisdiction of the Supreme Court: see for example s 247 Care Act; s 13 Voluntary Assisted Dying Act2022 (NSW); s 4 Court Suppression and Non-publication Orders Act 2010 (NSW).
Parens patriae (Latin for "parents of the country") is an ‘ancient’ jurisdiction of the Court to act when needed as the parent of every child within its jurisdiction: TF v Department of Family & Community Services [2015] NSWSC 694.
The parens patriae jurisdiction and the statutory jurisdiction are bases of jurisdiction in which the Court can draw to act in interests of children and young persons.
The Court generally inclines against an exercise the parens patriae jurisdiction while a case is properly before the jurisdiction of a specialised body and in particular the Children's Court: e.g. Re Victoria [2002] NSWSC 647; (2002) 29 Fam LR 157 at [36]-[40].
In Re Victoria Palmer J provided a number of reasons for that position including the fact that where statutory provisions provide for the operation of a specialist court such as the Children's Court consisting of Magistrates who are highly experienced in the determination of such issues, this Court should be reluctant to intervene in a way which cuts across determinations of that Court: Re Victoria at [36].
Further, Palmer J indicated that parties should not be encouraged in thinking that ordinary appeal processes from proceedings which have been contested in the Children's Court can be bypassed by coming directly to the Supreme Court seeking to invoke its inherent wardship jurisdiction: Re Victoria at [37]
Ordinarily, an order of the Supreme Court in its parens patriae jurisdiction does not set aside an earlier order made by statutory court such as the Children's Court.
The statutory court's order still stands although, in a sense it may be said to be superseded where it is inconsistent with this Court's order, so that an injunction in the nature of prohibition would lie to restrain the statutory court from exercising its earlier inconsistent order: see Re Victoria at [38] citing in Re Harris (1936) 37 SR (NSW) 17 at 28–29 per Jordan CJ and Long Innes J and at 31–32 per Maughan AJ.
There are numerous decisions of this Court indicating that where what is involved is in substance an appeal from a decision of the Children's Court, the parens patriae jurisdiction is to be exercised only in exceptional circumstances: see Re Victoria at [40] citing Re Weir (1953) 70 WN (NSW) 78; Ping v Van Der Kroft [1982] 2 NSWLR 731; T v H (1985) 3 NSWLR 270 at 274; and Re Anna, Bruno, Courtney and Deepak [2001] NSWSC 79 at [20]-[22]. See also CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855 (Lindsay J) at [4]; Re Baby S [2014] NSWSC 871 (White J) at [21]; Re June (No 2) [2013] NSWSC 1111 (McDougall J) at [219]; Re Linda [2011] NSWSC 1596 (McCallum J) at [40]; Re Georgia and Luke [2008] NSWSC 1277 at [31]-[35]; Re Frances and Benny [2005] NSWSC 1207 (Young CJ in Eq) at [17]-[18].
Although there is reference to the decision of the Children's Court in these proceedings, the particular issue that has arisen partly involves decisions of the Minister and Secretary and partly the decision made in the Children's Court.
What has been set above in relation to the exercise of the jurisdiction of the Supreme Court exceptional circumstances while a case is property within the jurisdiction of a specialised court, might also perhaps be said to apply in relation to analogous situations.
Where the Secretary has made a decision which in substance may be characterised as an administrative decision, the legislation provides that certain administrative decisions may be reviewable by the NSW Civil and Administrative Tribunal (NCAT).
Notwithstanding what I have indicated above, there are occasions in which this Court in its parens patriae jurisdiction will intervene to make orders in the best interests of children in appropriate circumstances.
In Re Anna, Bruno, Courtneyand Deepak [2001] NSWSC 79 Hodgson CJ in Eq noted that where the Court is asked to make an order that displaces a considered order made within the jurisdiction of another judicial officer, the usual principle is that the Court will not interfere with such an order, particularly an order made in the exercise of a discretion, unless the Court is satisfied that the decision is plainly wrong or unless some other error appears in the process leading to the decision: at [20].
His Honour nonetheless accepted that whilst what I have stated above is one consideration the Court would not regard itself as being strictly limited by such an approach as if it were a policy because ultimately in the exercise of parens patriae jurisdiction, the Court is guided by the paramountcy of the interests of the child: at [21].
In Re Anna an application was made to the Supreme Court to stay interim orders made by a Children's Court Magistrate that a number of the children remain continued to reside with a party having responsibility in relation to medical treatment and education, with other aspects of parental responsibility being left with the Director-General.
Hodgson CJ in Eq was referred to the principles applying in relation to such interim decisions concerning custody or what is otherwise a more generally referred to as ‘placement’ in which the Court considers the importance of maintaining the status quo: e.g. Cowling v Cowling (1998) FLC 92-801.

The notion of the status quo is something that is not construed narrowly as necessarily meaning the actual physical situation of the child or young person at the time the court makes a decision: Re Anna at [9].
In order to analyse the ‘status quo’ one should identify the elements of such status quo: Re Anna at [23]-[25].
In Re Anna for example, the status quo included at least a number of elements including: (a) the Director-General had full responsibility and authority in relation to the care of (relevantly) the two children; (b) the children were physically in the care of the first defendant; (c) plans were in place for the progression towards restoring the two children to the care of the second and third defendants; (d) those plans were based on a very detailed and comprehensive report, and (e) restoration to the second and third defendants was not going to be the inevitable result of those plans because the final step depended very much upon those defendants proving the least to satisfaction of the Director-General that they had rehabilitated themselves at least the extent they could be trusted with the care of the two children: [25].

The Care Act

The Care Act is one of a number of Acts which bear upon care and protection of children.
It is certainly on one view, the principal piece of legislation, or at least one of them in that regard.
The Act is extraordinarily comprehensive running to 265 sections with schedules and depending on which version is printed runs to several hundred pages.
Because the Care Act bears upon the roles of the Minister, the Secretary and the Children's Court in this case, it is relevant to address a number of important aspects of the legislation.
The objects of the Act are described in s 8, as follows:

“8   What are the objects of this Act?
The objects of this Act are to provide—
(a)     that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and
(a1)     recognition that the primary means of providing for the safety, welfare and well-being of children and young persons is by providing them with long-term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles, and
(b)     that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and
(c)     that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment.”

The Care Act:

describes relevantly in relation to children and young persons the general roles of the Minister and Secretary;

sets up mechanisms dealing with requests for assistance by children or young persons and parents and responses to such requests;

provides for reports, assessments and investigations to be made and for certain actions to be taken in relation to children;

outlines the types of proceedings that can be brought in the Children's Court and procedures for doing so; and

sets up structures for placement for children and allocation of parental responsibility.

In this regard aspects of parental responsibility may be allocated amongst a number of people, including the Minister and Secretary.
Relevantly to these proceedings there are provisions within the Care Act dealing with parental responsibility and permanent placement of children and young persons.
A child or young person who needs permanent placement is, subject to the objects in s 7 and the principles in s 9, to be placed in accordance with the permanent placement principles set out in s 10A(3): s 10A(2) Care Act.
The principles for the administration of the Care Act are set out in s 9, as follows:

“9   Principles for administration of Act
(1)    This Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount.
(2)    Subject to subsection (1), the other principles to be applied in the administration of this Act are as follows—
(a)     Wherever a child or young person is able to form his or her own views on a matter concerning his or her safety, welfare and well-being, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child or young person and the circumstances.
(b)     In all actions and decisions made under this Act (whether by legal or administrative process) that significantly affect a child or young person, account must be taken of the culture, disability, language, religion and sexuality of the child or young person and, if relevant, those with parental responsibility for the child or young person.
(c)     In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child’s or young person’s development.
(d)     If a child or young person is temporarily or permanently deprived of his or her family environment, or cannot be allowed to remain in that environment in his or her own best interests, the child or young person is entitled to special protection and assistance from the State, and his or her name, identity, language, cultural and religious ties should, as far as possible, be preserved.
(e)     If a child or young person is placed in out-of-home care, arrangements should be made, in a timely manner, to ensure the provision of a safe, nurturing, stable and secure environment, recognising the child’s or young person’s circumstances and that, the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement.
(f)     If a child or young person is placed in out-of-home care, the child or young person is entitled to a safe, nurturing, stable and secure environment. Unless it is contrary to his or her best interests, and taking into account the wishes of the child or young person, this will include the retention by the child or young person of relationships with people significant to the child or young person, including birth or adoptive parents, siblings, extended family, peers, family friends and community.
(g)     If a child or young person is placed in out-of-home care, the permanent placement principles are to guide all actions and decisions made under this Act (whether by legal or administrative process) regarding permanent placement of the child or young person.”

Section 10A(1) defines permanent placement as follows:

“permanent placement means a long-term placement following the removal of a child or young person from the care of a parent or parents pursuant to this Act that provides a safe, nurturing, stable and secure environment for the child or young person.”

The permanent placement principles set out in s 10A(3) are as follows:

“(a) if it is practicable and in the best interests of a child or young person, the first preference for permanent placement of the child or young person is for the child or young person to be restored to the care of his or her parent (within the meaning of section 83) or parents so as to preserve the family relationship,
(b)     if it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a), the second preference for permanent placement of the child or young person is guardianship of a relative, kin or other suitable person,
(c)     if it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a) or (b), the next preference is (except in the case of an Aboriginal or Torres Strait Islander child or young person) for the child or young person to be adopted,
(d)     if it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a), (b) or (c), the last preference is for the child or young person to be placed under the parental responsibility of the Minister under this Act or any other law,
(e)     if it is not practicable or in the best interests of an Aboriginal or Torres Strait Islander child or young person to be placed in accordance with paragraph (a), (b) or (d), the last preference is for the child or young person to be adopted.”

There are numerous provisions of the Care Act which bear upon parental responsibility.
Without being exhaustive it suffices to note those provisions include provision for:

assessment of the person's capacity for parental responsibility: s 54;

orders other than guardianship orders allocating parental responsibility: s 79;

allocation of respect parental responsibility by guardianship order: s 79A;

reports on suitability of arrangements concerning parental responsibility: s 82; and

the Minister directing by order in writing that person under the Minister's care who without lawful excuse has left or been removed from the care responsibility of the Minister be returned to that care responsibility: s 232.

Further, the Care Act contains numerous provisions regarding placement of children and young persons.
The provisions include:

the permanent placement principles: s 10A;

provisions regarding the right of certain persons to information for the purposes of assessing placement and other disclosure provisions: ss 143, 149I; and

review of placements affected by orders of the Children's Court: s 150.

In addition to the above provisions it may be noted, although it is not relevant in this case, that there are specific provisions in relation to placement principles for Aboriginal and Torres Strait Islander children and young persons: s 13.
In their general roles are set out in the Care Act the Minister and Secretary are assisted by, and may request assistance or services from certain other agencies: see e.g. s 17.
A number of agencies are authorised to provide such out-of-home care, such as VH which I have referred to above.
There are provisions which facilitate the objects of the Act including obligations of cooperation and exchange of information: ss 18 and 19.

Real issues

The Minister has determined that there is no realistic possibility of restoration of Leonardo to either of his parents: T12, 38.
Essentially, in this matter as it presented itself initially, but more particularly, so as emerged during the course of the urgent hearing, the plaintiffs are desirous of having Leonardo placed with them, certainly for the long term and perhaps ideally permanently: T15-17.
I think it is fair to say that the plaintiffs are also desirous perhaps of taking on many but not all aspects of parental responsibility.
There is a disconnect between the plaintiffs’ expectations in this regard and views of the Minister and Secretary regarding who is prioritised for permanent placement.
The plaintiffs say they were initially informed that the placement of Leonardo with them was a long-term placement. The Minister disputes that.
After the initial placement of Leonardo with them the plaintiffs sought to be joined to the Children’s Court proceedings.
The plaintiffs wish for Leonardo to remain in their care until he becomes an adult: first plaintiff affidavit [8].
The DCJ has its own procedures for assessing and making decisions in relation to the matter of placement.
The steps taken by the Secretary in this regard appear to have been predicated on a particular view of s 10A(3) of the Care Act, which, as I will note below, is not a view which I share.
Effectively, the Secretary has considered that as a matter of true construction of s 10A(3)(b) Care Act, priority is given to relatives and kinship carers over what is described in that paragraph as "other suitable carer(s)".
I note that the Department Policy also prioritises placement with “family/kin”, with the consequential practical effect that it seemingly excludes consideration of “other suitable person(s)”.
The Secretary has at least at this point rejected MGM as being appropriate family placement for Leonardo. That has resulted in the Secretary only pursuing an assessment of placing Leonardo with the PU. The plaintiffs have not had opportunity to be assessed as long-term carers for Leonardo: T38.
In the above context, one of the real issues in the dispute is the proper construction of s 10A(3) of the Care Act.
Further, because of the disconnect I have referred to above, the matter has progressed without each side clearly being able to understand the other’s position regarding permanent placement.
The above context, became clear to me during the hearing that:

I needed to form a view regarding whether the provisions of s 10A(3) of the Care Act prioritised kin placement over other suitable persons; and

provide a communication regime for clearer and more direct understanding as between the Minister and Secretary on the one hand and the plaintiffs on the other as to their intentions and also opportunity for the plaintiffs to take whatever action they may be advised in any court or tribunal to allow them to be at least fairly considered as candidates for the permanent placement of Leonardo.

Submissions

Because of the way the hearing unfolded the submissions of the parties proceeded in a piecemeal way. That is no criticism of counsel. Rather, often counsel were simply providing alternate responses to queries which I raised.
Accordingly, in recording the submissions of the parties below I have attempted to give an outline of the respective submissions of the parties in an ordered way.

Plaintiffs’ submissions

Mr Bateman submitted that:

Leonardo is only 30 months old and has currently been spending the last 15 months of his life with the plaintiffs: T39;

the Minister seeks to remove him to a placement with his PU in circumstances where he has spent only one overnight time with the PU to date: T39;

the plaintiffs have not been given an adequate opportunity to be considered to have Leonardo permanently placed with them: T40;

the plaintiffs ought have an opportunity to avail themselves of pursuing such rights as they might have to seek to have Leonardo permanently placed with them; and

unless injunctive relief was granted the Minister could at a later point remove the Leonardo from the plaintiffs’ care: T41.

Minister’s and Secretary’s submissions

Mr Anderson on behalf of the Minister and Secretary made various submissions against the relief sought. The submissions included the following:

the jurisdiction was exceptional, and there are no exceptional circumstances: T25, 29, 37;

Leonardo was placed the plaintiffs as short to medium term carers and not placed with them with the express proposal that they would be long term carers (T12) as is made clear by the Care Plan: SR’s affidavit pages 33-34, T13;

whilst the plaintiffs have been assessed in a general sense as long term carers, the particular placement of Leonardo with them was a short-term placement: T14

the Children’s Court proceedings are about parental responsibility (T15) and the Minister having been given interim parental responsibility determined placement: T15;

the Children's Court does not determine placement, it merely approves whether placement is in accordance with the permanent placement principles: T15;

the provisions of s 10A(3)(b) as a matter of construction accorded priority in terms of permanent placement to a “relative” or “kinship” over "other suitable persons": T12, 17, 27;

the policy of the Children’s Court and the Secretary for the Minister is that children should be placed with their family, if that is possible – referring to the Placement Policy (T28), which was subsequently tendered and became MFI 1: T35-36;

the psychological assessment of PR (clinical psychologist supervisor) and JS (provisional psychologist) determined the best outcome for Leonardo was placement with kinship carers (T17-18) and their report suggests as a matter of social science that kinship placements are a more stable placement than other out of home care placements (page 98 & research at page 102): T27;

kinship placement for the rest of Leonardo’s life (will) provide more permanency for him than being placed with non-relatives in and out of home placement: T21;

the addendum to the Care Plan proposed that the transition to the paternal uncle and his partner would happen by 20 May 2022, albeit that the assessment had not been completed by then for whatever reason: T14, 16;

that the plaintiffs had been aware of the terms of the transition plan (T35) and had delayed in availing themselves of their rights: T11, 15, 16;

the plaintiffs had other options available to them including seeking relief in the Children's Court, the District Court, and NCAT: T11, 15-16, 29-30, 33-35, 37;

there is no guarantee that the appeal will be heard at the next sittings of the District Court in October 2022 and the next setting is then March 2023: T22, 44;

although Leonardo has formed attachments with the plaintiffs, Leonardo can form attachments with others: T22;

even if Leonardo is transitioned away from the plaintiffs on Saturday, they will still have contact with them: T25.

Mr Anderson noted that the foster care system or out of home care system relies upon foster carers taking in children and giving them better care than they had in their biological (or parent) placement. Children are then moved to a more permanent placement: T23.
Mr Anderson submitted that the District Court was the appropriate Court to seek relief as that is the Court in respect of which the appeal has been made regarding the refusal of the application for joinder: T26.
During the hearing Mr Anderson offered and provided me with an annotated version of the legislation: T12, 24.
Mr Anderson in his helpful submissions drew my attention to a number of provisions of the Care Act, including ss 8, 9(1)(2)(e), (f) & (g), 10A, 78A, s 79, 90AA, 91, 93, 94, 98, 245(1)(c), 247: T24-34.
Mr Anderson submitted that if injunctive relief were granted, in terms of the framing of the order, it should be limited to be expressed to be confined to the conclusion of the District Court proceedings rather than the Children’s Court proceedings. In this regard Mr Anderson referred to Re Tilly and Minister for Family and Community Services [2015] NSWSC 229 per Bergin CJ In Eq at [15]-[17]: T37.

Plaintiffs’ reply submissions

Mr Bateman submitted as follows:

the Second Reading speech for the Care Act regarding the hierarchy of permanent placement principles does not express any preference as between kin and other persons: T39.

the plaintiffs had acted the best they could to avail themselves of the options open to them;

contrary to the submission of Mr Anderson, the plaintiffs’ understanding is that the placement of Leonardo with them was a long-term placement: T15, 42-43;

the plaintiffs requested to be considered for permanent placement but have not been considered (T18) and also requested that they be assessed for permanent placement, but that was refused: T20;

the psychologists have not observed Leonardo with the plaintiffs: T22;

a proper reading of the psychologists’ report regarding the social science does not definitively state that kinship placements are more stable than out of home care placements but rather that they “tend to be” more stable: T27;

the transition plan (page 103) had not been sent to the carers: T31;

if Leonardo were removed from the plaintiffs’ care there would be minimal contact with them being only contact once per month and not necessarily on an ongoing basis (being essentially contact where the PU is located, 4.5 hours away from them, on four weekends up to mid November): T40-41;

there is no expert evidence before the Court assessing the primary attachments Leonardo has with the plaintiffs and no expert has seen Leonardo in the care of the plaintiffs: T42;

(without attributing blame to be uncle) there are significant concerns in relation to Leonardo’s behaviour both pre and post contact with PU: T42; and

there is no risk of harm with Leonardo continuing to remain with the plaintiffs: T42;

Mr Bateman submitted that any restraining order to be made would need to extend beyond the District Court proceedings as there will be significant time after that decision until an application is made by the plaintiff for parental responsibility during which time the Minister could exercise their right to again remove the child: T38.

Construction of s 10A(3) Care Act

During the hearing I formed the prima facie view that s 10A(3)(b) Care Act does not prioritise kin placement over other suitable persons.

Purpose and objects

Section 10A was introduced into the Care Act by Sch 1 [7] of the Child Protection Legislation Amendment Act 2014 (NSW).
In the interpretation of a provision of an Act a construction that would promote the purpose or object underlying the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to a construction that would not promote that purpose or object: s 33 Interpretation Act 1987 (NSW) (Interpretation Act).
The objects of the Child Protection Legislation Amendment Bill 2013 (NSW) was stated in the explanatory note as being follows:

“The object of this Bill is to amend the Children and Young Persons (Care and Protection) Act 1998 (the Principal Act), the Adoption Act 2000, the Child Protection (Working with Children) Act 2012 and other legislation to implement miscellaneous reforms relating to the protection of children and young persons that are intended to:
(a)    promote good parenting and increase parental responsibility for children and young persons, and
(b)    achieve greater permanency for children and young persons in out-of-home care, and
(c)    modernise and create a more responsive and child focused system, and
(d)    improve the transparency and accountability of child protection services.”

Second reading speeches

Mr Bateman referred to some second reading speech material: first plaintiff’s affidavit at pages 74-75. There is in fact considerable second reading and parliamentary debate material as I note below.
The purpose or object will often be derived from the terms of the provision, read in context, but may be assisted by having regard to extrinsic material.
By s 34(1) Interpretation Act consideration may be given to certain extrinsic materials if they are capable of assisting in the ascertainment of the meaning of the provision, to (relevantly in the case of provision of an Act):

“(a)       … confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act and the purpose … or object underlying the Act …), or
(b)       … determine the meaning of the provision--
(i)       if the provision is ambiguous or obscure, or
(ii)       if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act … and the purpose or object underlying the Act …) leads to a result that is manifestly absurd or is unreasonable.”

The material to which regard may be had includes:

any explanatory note or memorandum relating to the Bill for the Act: s 34(2)(e) Interpretation Act

the second reading speech of the Minister or other member of Parliament on the occasion of the moving by that Minister or member of a motion that the Bill for the Act be read a second time in that House: s 34(2)(f) Interpretation Act: see Stanley v Director of Public Prosecutions (NSW) [2021] NSWCA 337; (2021) 398 ALR 355 at [105].

any relevant material in the Minutes of Proceedings or the Votes and Proceedings of either House of Parliament or in any official record of debates in Parliament or either House of Parliament: s 34(2)(h) Interpretation Act.

In determining whether consideration should be given to the above materials, or in considering the weight to be given to it, regard shall be had, in addition to any other relevant matters, to (a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act and the purpose or object underlying the Act), and (b) the need to avoid prolonging legal or other proceedings without compensating advantage: s 34(3).
Clearly in the course of an urgent hearing it seemed to me that it is highly desirable for persons particularly those in the position of caring for children to be able to know whether the ordinary meaning conveyed by s 10A(3)(b) is as suggested by the Minister in these proceedings or not. Further, in the circumstances, these proceedings would not be unduly prolonged by undertaking that consideration.
The Bill was introduced by the Hon Ms Pru Goward, Minister for Family and Community Services, and Minister for Women in the Legislative Assembly on 21 November 2013: NSW Legislative Assembly, Parliamentary Debates (Hansard), 21 November 2013 at 26268.
The second reading speech on that occasion in the Legislative Assembly was brief.
Debate in the Legislative Assembly resumed on 25 March 2014: NSW Legislative Assembly, Parliamentary Debates (Hansard), 25 March 2014 at 27771. The Hon Ms Linda Burney and others participated in the debate.
The Hon Ms Linda Burney stated at 27771:

“The objects of this bill at least provide good thematic structure for debate. The four themes are: good parenting; permanency for children; a more responsive and child-focused system; and improved transparency and accountability.”

The Hon Ms Linda Burney at 27772 address the topic of permanency but not in a way to distinguish as between relatives, kin and other suitable persons.
The debate was then adjourned (see 27780) until the following day.
On 26 March 2014, the Hon Ms Melanie Gibbons stated:

“The principles of the bill reflect the Government's belief that, ideally, a child should live safely at home with his or her parents. Alongside this, community services will work with families to help them change their behaviour and to ensure they provide a safe and happy environment in which to bring up children. The detrimental effects of growing up in the care system are widely reported and are not new to those working in the field. If living with their immediate family is not a possibility, the next best place for the child would be with family or kin, so they are still in a long-term, safe and nurturing environment. Where this option is also not a possibility then open adoption should be considered and pursued as a means of providing for the safety, welfare and wellbeing of the child.”
(NSW Legislative Assembly, Parliamentary Debates (Hansard), 26 March 2014 at 27886)

The Hon Mr Chris Patterson stated at 27895:

“The bill stipulates a new hierarchy of permanency within the Children and Young Persons (Care and Protection) Act 1998, with family restoration as the first option, in recognition of the primacy of family preservation. But when this is clearly not in the best interests of the child consideration is to be given to placing a child in the long-term guardianship of a relative or kin, followed by open adoption and, as a last resort, parental responsibility is placed with the Minister. For New South Wales this is a significant and somewhat controversial change in the way we care for children who are unable to live at home. Critically, it prioritises open adoption over placing children in care. This new policy direction is bold and challenges the way we currently do things. I note that some members opposite agree the adoption of children is by far the best option for children who cannot remain with their families.”

The Hon Mr John Flowers stated at 27901:

“This bill offers a unique opportunity to redefine the provision of child protection services and to stop the ever-spiralling cycle of disadvantage, poverty and abuse for too many children and young people in New South Wales. The amendments to be enacted by this bill reflect a genuine commitment to engage and work with parents in order to help them to protect and take proper care of their children. Without compromising the safety of children, the bill will provide families with every chance to get it right. However, where this is not possible, the bill provides that those children who come into care will have the opportunity for a permanent, stable and secure home for life, which we know is so important in helping children achieve their potential—at school, in their relationships, and over the course of their lives. Whether permanency is achieved through placement with relatives, with a long-term carer, or an adoptive parent, will depend on the circumstances and, above all else, on what is in the best interests of the particular child. The proposals concurrently approve a person to be both a long-term foster carer and adoptive parent, and seek to make finding permanent homes for children who cannot live with their birth parents as smooth and efficient as possible.”

The Hon Mr Tony Issa stated at 27902:

“The principal objective of the Child Protection Legislation Amendment Bill 2013, as I said, is to provide safety for children, because a child ideally should be able to live safely at home with his or her parents. Community Services will work alongside the family to help and encourage them to change in order to provide the safest possible environment for their children. If a child cannot live safely at home, the next place for them is with extended family or kin. If families or kin are unable to assist or take care of the child then open adoption for the child should be determined.”

The Hon Ms Pru Goward stated at 27907:

“Where restoration to a child's parent is not possible, new guardianship orders will enable children to be placed with relatives or kin, or another suitable person when that is more appropriate. In particular, it is envisaged that guardianship orders will be available for Aboriginal children.”

The second reading debate concluded and the Bill was read a third time and transmitted to the Legislative Council with a message seeking its concurrence in the Bill: see 27909.
Debate on the Bill took place in the Legislative Council on 26 March 2014.
Hansard records the Bill was received from the Legislative Assembly, and read a first time and ordered to be printed on motion by the Hon. Mike Gallacher, on behalf of the Hon. John Ajaka: NSW Legislative Council, Parliamentary Debates (Hansard), 26 March 2014 at 27825. The standing orders were suspended to allow the passing of the bill through all its remaining stages during the present or any one sitting of the House and the second reading set down as an order of the day for a later hour.
The Hon John Ajaka Minister for Ageing, Minister for Disability Services, and Minister for the Illawarra noted as follows at 27844:

“The principles of this bill reflect this Government's belief that ideally, a child will live safely at home with his or her parents and Community Services will work alongside the families to help them change. If children cannot live safely at home then the next best place for them is with family or kin—or in some circumstances with a non-relative carer—in a long-term, safe, nurturing, stable and secure placement. Where family or kin are unwilling and/or unable to assist then open adoption of the child should be considered and pursued. Open adoption offers a permanent home for life, with all the benefits this bestows on a child, including lifelong security and that precious sense of belonging.”

The debate over the Bill was detailed ranging over 30 pages (27844 – 27874). The Legislative Council resolved itself into committee to deal with various proposed amendments. Whilst the amendments were strongly debated they were not adopted and the Bill was read a third time and returned to the Legislative Assembly without amendment: see 27874.
The Hon Penny Sharpe noted that adoptions from out-of-home care were (then) very few and referred to writings of Thoburn in his international perspectives on foster care stating “There are no data sets or recent large scale longitudinal studies for children placed from care for adoption or with the intention of permanence in foster family care”: Hansard 27846. The Member also referred to conflicting studies: Hansard 27847.
There was some referencing as to priorities of placement (e.g. at 27857).
Overall, none of the Hansard debates affirmatively suggest that there was a coherent intention of Parliament that within the second category of hierarchy there was an internal preferencing between “relative”, “kin” or “other suitable person”.
Indeed, as is recognised by the Hon John Flowers, whether permanency is achieved through placement with relatives, with a long-term carer, or an adoptive parent, will depend on the circumstances and, above all else, on what is in the best interests of the particular child.

Definitions

Section 10A(3)(b) contains within it a number of definitions.
However, in working through the definitions it is far from clear that the emphasis which the Minister seeks to place on "relative" as a closer or more permanent connection for a child than an “other suitable person” is made out.
For the purposes of s 10A(3)(b) it may be noted that the term "relative" is very broadly defined in s 3 to include, for example, persons who would otherwise fall outside the ordinary English meaning of relative.
Thus, for example, a "relative" of a child or young person is defined as meaning various persons including a person who has parental responsibility for the child or young person but also a person who has care responsibility for the child or young person under the Adoption Act 2000 (NSW), in each case, not being the Minister, the Secretary or a person who has parental care responsibility other than in in his or her personal capacity: s 3(1) (paras (c), (d) of the definition of “relative”).
Whilst there is reference in the Care Act to a "suitable person" (s 10A(3)(b), s 79(1)(e), (f) and s 79A(2)), there is no definition of that term per se.
Nonetheless, it is clear, for example, that the Children's Court has power to allocate parental responsibility to various persons, including "a suitable person": s 79(1)(f).
The Children's Court must not make an order allocating parental responsibility unless it has given particular consideration to the permanent placement principles and is satisfied that the order is in the best interests of the child or young person: s 79(3).
Parental responsibility may also be allocated to a "suitable person" by means of a guardianship order: s 79A(2).
To my mind none of the above suggested there is any preferencing of what might ordinarily be regarded as relative whether that be by a blood connection or otherwise over other “suitable person(s)”.
In fact having regard to the definitions within the Care Act a "relative" of a child or young person in fact includes a “suitable person” who has parental responsibility for the child or young person: ss 3(1) (para (c) of the definition of “relative”) and 79(1)(f).

The structure of the Care Act

The overall structure of the Care Act is relevant in considering the provisions of s 10A(3)(b).
Part of that structure is that parental responsibility may be allocated amongst a number of people: s 79.
There is nothing in particular in the objects of the Care Act which suggest a preferencing of “relatives” as defined over “other suitable persons”: s 8. Indeed, s 8(a) and (c) by use of the expression “parents and other persons responsible” for “them” (see (a)) and for “children and young persons” (see (c)) tends to reinforce that.
Further, the principles for administration of the Care Act in referring to the wishes of children emphasises the importance of the retention by the child or young person of relationships with people significant to the child or young person, “including birth or adoptive parents, siblings, extended family, peers, family friends and community”: s 9(f). Likewise that does not suggest a particular preferencing of relationships which are to be retained by the child over others.

The wording of s 10A(3)(b)

The natural tenor of the words in s 10A(3)(b) “the second preference for permanent placement of the child or young person is guardianship of a relative, kin or other suitable person”, in my estimation is not to create a priority as between “relative”, “kin” or “other suitable person” in the expression “relative, kin or other suitable person”.
If priority between “relative, kin or other suitable person” had been intended, it would have been easy to make that clearer.
For example that could have been done by stating “relative, next kin or failing kin some other suitable person” or “relative, then kin or failing kin some other suitable person”.
Alternatively, having regard to the prioritised framework of categories (a)-(e) it would have been easy to simply create a prioritised category for “relatives” in (c) alone and then subsequent categories for each of “kin” (e.g. (d)) and then “other suitable persons” (e.g. (e)) with subsequent renumbering.
Prioritising could then have been emphasised by use of the mechanism that has been used in the words “if it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a) or (b), the next preference is …”.

Caselaw

There are a number of cases which have considered the terms of s 10A Care Act.
Unsurprisingly a number of these cases are District Court cases: see AB & JB v Secretary [2021] NSWDC 626; KH v Secretary, Department of Communities and Justice [2021] NSWDC 498.
In KH v Secretary, Department of Communities and Justice Levy SC DCJ considered an appeal of a self-represented Aboriginal woman and made findings pursuant to s 83(2) and s 83(8A) of the Care Act that there was a realistic possibility of restoration of the child the subject of the appeal into the parental care and responsibility of his mother (the appellant). His Honour allowed the appeal .
In outlining what his Honour considered to be some "uncontroversial legal principles" which apply to the proceedings his Honour stated that inter alia:

“In particular, if practicable, where restoration of a child to a parent is not in the best interests of the child, the second preference is for permanent placement with a relative: s 10A(3)(b) of the Care Act”: at [69(8)].

His Honour referred to aspects of the statutory scheme and placement as explained in the decision of his Honour Judge Johnston, the President of the Children's Court (as his Honour then was), in Secretary of the Department of Communities and Justice v Fiona Farmer [2019] NSWChC 5.
I pause to note that there is nothing in Farmers case which supports the proposition that a relative is prioritised over kin or other suitable persons.
It seems to me that a fair reading of the decision of Levy SC DCJ is that his Honour was not intending to do more than paraphrase the effect of s 10A(3)(b) for the purposes of outlining what were described as uncontroversial legal principles. I do not regard his Honour's decision as indicating that proper construction of s 10A(3)(b) is that priority is given by that provision to a “relative” over “kin or other suitable person”.

Certainly, his Honour did not evidently embark upon any detailed exercise of statutory construction of s 10A(3)(b), nor did his Honour cite any authority for the proposition that where restoration of a child to a parent is not in the best interests of the child the second preference for permanent placement is with "a relative" over that of an “other suitable person”.
I note that the construction of s 10A(3)(b) was not addressed in the stay application before Macfarlan JA in Secretary, Department of Communities and Justice v KH [2021] NSWCA 308, pending judicial review proceedings of the decision of Levy SC DCJ.
In my opinion, there is no allocation of priority as between the terms "relative, kin or other suitable person". Rather, the persons who fit within those descriptions are all potential candidates (for want a better description) of persons to be considered for permanent placement of a child or young person in the event that restoration of a child to a parent is not in the best interests of the child.
Other decisions referring to s 10A Care Act do not so far as I can tell conflict with the construction that I have indicated above: see DZU v Foundations Care [2021] NSWCATAD 142; Rogers (a pseudonym) v Secretary, Department of Family and Community ServicesNSW [2019] NSWDC 194; Foster Carer v Department of Family and Community Services [2017] NSWDC 360; (2017) 26 DCLR (NSW) 66; Secretary, Family and Community Services v AH and AN [2017] NSWDC 412; LZ and QJ v Family and Community Services [2017] NSWDC 414.
In SK v Secretary, Department of Family and Community Services [2016] NSWDC 273, Montgomery DCJ in reference to s 10A(3) stated that there is a deliberate expression of cascading preference of options for permanent placement expressed within that section: at [17].
However that observation, which is clearly correct as regards paragraphs (a)–(e), does not speak to any internal preference within the terms "a relative, kin or other suitable person" for permanent placement of the child or young person’s guardianship for the purposes of s 10A(3)(b).
There is nothing in the decision of the Court of Appeal in SL v Secretary, Department of Family and Community Services [2016] NSWCA 124, nor the decision of Robb J in Re Adoption of IEK [2019] NSWSC 171 which, so far as I can detect, is contrary to what I have stated.

Consideration and determination

Exceptional jurisdiction

I accepted that the jurisdiction to intervene in the matter is an exceptional jurisdiction.
However a number of considerations seemed to me in this matter to be exceptional.
First, the construction which the Minister and Secretary have taken of s10A(3)(b) has in its application had the effect of excluding the plaintiffs from being considered as candidates for permanent placement of Leonardo.
Second, as noted below, the so-called other court or tribunal options that were said to have been available to the plaintiffs for relief were, in my assessment, not realistically available to them. Particularly so having regard to the immediacy of the then proposed removal on Saturday.
In the context of the hearing on 7 September 2022 it was not realistic to think that the plaintiffs could avail themselves of any satisfactory relief by means of alternate litigation options in the Children’s Court, the District Court or NCAT prior to 10 September 2022: T15.
Thirdly, in determining the best interests of the child I note the status quo (see below) is that Leonardo has spent the last half of his infant life with the plaintiffs.
Mr Anderson conceded that the plaintiffs had been assessed as appropriate carers, noting that they had been very appropriate people and nobody could criticise their care of Leonardo: T23. Indeed, he said they had been exemplary carers: T26.

Construction of s 10A(3)(b) Care Act

For reasons which I have outlined above, as a matter of construction of s 10A(3)(b) I reject the submission that there is a prioritisation of "relatives" over "other suitable persons" for permanent placement of a child or young person in the event that restoration to the care of the child’s parent is not possible.

Policy

To the extent that there is a policy of the Children’s Court and the Secretary for the Minister that children should be placed with their family in the sense of preferring relatives and kin over “other suitable persons” it seems to me that that is contrary to the permanent placement principles in s 10A(3)(b) (or at the very least very arguably contrary to those principles).

Kinship placement

The submission that kinship placement for the rest of Leonardo’s life proposes more permanency for him than being placed with non-relatives in out of home placement was not particularly supported beyond the psychological evidence which I refer to below.
The submission in any event has difficulties.
If the Placement Policy or any other like policy is predicated on the basis that relative or kinship placement is to be preferred over other “suitable persons”, self-evidently that inhibits at the outset the taking of steps for the identification and assessment of other suitable persons as being appropriate candidates for consideration of the permanent placement of children and young persons.
The plaintiffs have had two children placed with them, which children in due course they have adopted: T21.
The submission that “kinship” placement for the rest of Leonardo’s life will provide more permanency for him than being placed in the plaintiffs, is not satisfactorily made out on the evidence.

Other curial options

I was particularly mindful of the fact that is important to explore what are the real options the plaintiffs had to seek urgent relief and the utility of those options.
In relation to the Children's Court, Mr Anderson suggested that the Children’s Court could have made an order reallocating interim parental responsibility (i.e. to someone other than the Minister): T34, 44. However, Mr Anderson following debate eventually accepted that in the absence of plaintiffs being parties to the Children's Court proceedings, it was not possible for them to seek a variation of interim care orders pursuant to s 90AA: T29, 34. Mr Anderson accepted that it is only if they were made parties could they make such an application: T44.
In relation to relief being sought from the District Court, Mr Anderson indicated that it was possible that some particular relief could be sought from the Children's Court in relation to the placement of Leonardo. There are occasions where an order refusing joinder of parties may be set aside and leave granted for joinder: e.g. AB & JB v Secretary [2021] NSWDC 626.
However, in the circumstances of this matter regarding the transition steps taken by the Secretary, the particular urgent relief able to be sought by the plaintiffs in the District Court was not identified. Mr Anderson indicated that the District Court could make an interlocutory order in relation to whatever the plaintiffs seek and quite often a stay is granted of the relevant decisions in the District Court: T31. However Mr Anderson did not particularly identify any actual relief. Rather he indicated that his comment was essentially to indicate that the possibility of seeking relief exists: T32.
However, the reality is that the District Court does not have parens patriae jurisdiction as the Supreme Court does and Mr Anderson was not able to identify what if any power the District Court had to restrain the Secretary or Minister in the way sought in the application before me.
In particular, even if the District Court were to grant a stay of the order declining joinder, that of itself would not prevent the Minister or the Minister’s delegate proceeding to implement a transition plan: T33-34. Mr Anderson was unsure whether the District Court could have acted under s 90AA to reallocate parental responsibility: T34.
In any event, having regard to the exigencies of the situation, and bearing in mind that the proposed transition of Leonardo would take place on Saturday 10 September within a few days of the urgent hearing before me, there was no realistic possibility in my view that any meaningful application could be made by the plaintiffs to the District Court.
In relation to the suggestion that the plaintiffs had an available avenue to review in NCAT the decision of the Secretary, this led to a somewhat interesting interaction.
Mr Anderson indicated that usually the decision is in the form of a letter: T31.
However, it should be borne in mind as clearly emerged from the debate in the hearing that a decision does not necessarily need to be embodied in a formal written document. Indeed, Mr Anderson indicated that it could be informal as an oral statement or perhaps an email: T32.
I asked Mr Anderson to identify the particular decision of which the plaintiffs (should they choose to do so) would seek review: T31.
In this regard, Mr Anderson referred to the Minutes of the Meeting prepared by DK on 18 August 2022 being exhibit D1-1: T31. Mr Anderson submitted that the decision had been communicated “because of the minutes of the meeting”: T33.
When asked Mr Anderson to identify within those minutes the particular decision, he was unable to do so: T31-32.
I did wonder whether the words in the concluding part of page 3 of exhibit D1-1 referring to "the transition plan that was set" might relevantly intimate a decision: T33. However, Mr Anderson did not seem to embrace that and ultimately indicated that he could not point to such a decision: T33, 35.
The fact that there has been discussion about the transition plan (T33, 36), does not substitute for proper identification of a decision of the Minister to the plaintiffs to enable them to avail themselves of rights of review.
Eventually, Mr Anderson accepted that the plaintiffs had not been given written notification of the reasons for the decision: T36.
In light of the above, where no particular decision could be identified, it can hardly be said that the plaintiffs had available to them or at least readily available to them any clear path to review in NCAT: T34.

Alleged delay

Mr Anderson also suggested that the plaintiffs had had sufficient time to take the above-mentioned other courses which might be available to them and that they had effectively delayed in doing so.
It seemed to me, that in light of the chronology I have outlined above, that there could be no fair criticism of the plaintiffs that they had not acted promptly.
The events which I have recorded above do not in any way suggest that the plaintiffs have been sitting on their hands.

Suitability

Apart from the 3 June 2022 meeting to which I have referred to above, in which some complaint or concern was expressed either by Leonardo's PU or his paternal grandfather regarding Leonardo referring to the plaintiffs as "mum" and "dad" there is not a skerrick of a suggestion that the plaintiffs have acted in any way other than appropriately in caring for Leonardo.
Ultimately, I was left with the impression that the plaintiffs for their part, strongly desired to have Leonardo placed with them on a long-term basis, and ideally a permanent basis, and also to have aspects of parental responsibility allocated to them.
Mr Anderson did not suggest that the plaintiffs could not qualify to be considered to be "suitable persons" within the meaning of s 10A(3)(b) Care Act.

Engagement

One aspect of the disconnect between the plaintiffs and the Minister and Secretary is that the plaintiffs for their part, have proceeded on the basis that they were seeking or attempting to obtain what I have described as long-term or permanent placement and parental responsibility. Whether they have effectively done that in the steps that they have taken thus far is seemingly a matter which is not entirely clear to the Minister and the Secretary.
On the other hand, the Minister and Secretary have so far as I can ascertain, proceeded on the basis (which is contrary to the factual details that I have outlined above) that the placement of Leonardo with the plaintiffs was only for a short or medium term and that having regard to the Minister and Secretary’s view of s 10A(3)(b) a relative (in this case the PU) ought to be prioritised for permanent placement over that of some other "suitable person".
That has led to a situation in which no steps have been taken to support or even permit the plaintiffs to be considered as contenders for Leonardo to be permanently placed with them and it appears (though I do not do not wish to be dogmatic about this because I have not had placed before me a transcript of the hearing nor reasons for judgment) the Secretary did not support application for joinder of the plaintiffs to the Children's Court proceedings because of the view taken of the prioritisation of relatives under s 10A(3)(b) and the Department's own Placement Policy.

Status quo

In terms of assessing the status quo of the matter, whilst is true that pursuant to the interim order of the Children's Court on 8 June 2021, all aspects of parental responsibility for Leonardo have been allocated to the Minister, Leonardo has for the last 15 months been placed physically in the care of the plaintiffs.
Contrary to the situation in Re Anna, there is no suggestion that the plaintiffs have cared other than in an exemplary way for Leonardo: T26.
Further, in distinction to the outcome in Re Anna, although it is the case that transition plans have been formulated and progressed for Leonardo to be transitioned to the care of his PU, that has occurred only in a context in which there has been what in my view is a mistaken, or at least not self-evidently correct, construction of the permanent placement principles in s 10A(3)(b).
In the above context, I determined that it was appropriate to restrain the Minister from removing Leonardo from the plaintiffs’ care at least immediately.
The purpose of the orders was to maintain the status quo in which Leonardo has been physically in the care of the plaintiffs for 15 months and appropriately cared for by them. There are some suggestions that he has been unsettled by the longer hours of visiting with the PU. I hasten to add that that regard, I am making no findings as to the reason for that.
Fundamentally it seemed to me that a restraining order was appropriate to allow at least two things to be redressed.
First, for each of the Secretary and Minister on the one hand and the plaintiffs on the other hand to more clearly understand each other's position in relation to their intent as to what should occur in relation to Leonardo and their claims for relief.
It is for that reason that I made specific orders directing the Minister and Secretary on the one hand to identify to the plaintiffs the relevant action which constituted the decision to transition Leonardo to the care of the PU to enable the plaintiffs to then have clarity about the decision should they seek to review the decision.
On the other hand, I also directed the plaintiffs to inform the Minister and Secretary of their intentions regarding relief.
Secondly, it seemed to me that the restraint was necessary to prevent the matter proceeding in a context in which the Minister, and perhaps the Children's Court, have been proceeding on the basis that s 10A(3)(b) prioritises placement with relatives and in this case the PU over the considerations of "other suitable persons".
It seemed to me that the Minister and Secretary need some time to reflect upon that.
In particular, the restraint, would allow time for appropriate reflection on the provisions of s 10A(3)(b) and allow at the very least, the plaintiffs to be considered as contenders or candidates for Leonardo to be permanently placed with them as distinct from being excluded out of that process.
I also note it is clear from the materials that Leonardo's mother and MGM support the plaintiffs having continued care, long-term or on a permanent basis of Leonardo.
The orders I made allow opportunity for clearer and more direct understanding as between the Minister and Secretary on the one hand and the plaintiffs on the other as to their intentions and also opportunity for the plaintiffs to take whatever action they may be advised in any court or tribunal to allow them to be at least fairly considered as candidates for the permanent placement of Leonardo.
I should finally add that lest anyone have the impression that my reasons for judgment are in any way critical of the Secretary or Minister, that is certainly not my intention.
Whilst I have taken a different view of the proper construction of s 10A(3)(b) Care Act, I should note that I was considerably assisted on the application by Mr Anderson on the part of the Minister and Secretary. The conduct of the hearing was on both sides, helpful and appropriate in the exigencies of the urgency of the situation.
Further, it is not for me to comment upon, or determine whether any appeal from the order of the Children's Court refusing joinder of the plaintiffs in the care proceedings ought be allowed or to otherwise comment upon it.

Alleged short-term placement

On the evidence available at the hearing, it was not the case that Leonardo was placed the plaintiffs as short to medium term carers. The evidence before me supports the plaintiffs’ contention that Leonardo’s placement with them was in a context where they were informed it was a long-term placement: first plaintiff’s affidavit [21]-[22] and annexure B; care replacement agreement. The Care Plan notation (SR’s affidavit pages 33-34) is contrary to this other documentary evidence. In this regard I accept the submissions of Mr Bateman in reply.

Psychological assessment

The submissions in relation to the psychological assessment of PR and JS to my mind suffered from the fact that the plaintiffs had not been consulted by the psychologists in the consultation process regarding the decision of whom Leonardo ought to be placed with on a permanent basis: T 19-20.
The consultation has essentially been with the DCJ caseworker (SR), the Manager casework (MW) who provides oversight of VH and the VH caseworkers (KW and DK): T19. There has been no consultation with the plaintiffs: T22.

Transition plan, attachments & contact

The submission that although Leonardo has formed attachments with the plaintiffs, he can form attachments with others, was not supported by any particular evidence. Conceptually I accept that is possible. However, the transitioning that occurred up until the time of the hearing has been based upon a policy preferencing relatives over other suitable persons.
Further, the submission that the plaintiffs would still have contact with the Leonardo if he is taken away from them, whilst technically correct, failed in my view to give sufficient weight to the fact that it would be a significant shift in the status quo: T25.
It seemed to me that the preferable position was to retain the status quo to enable each of the parties to engage with one another regarding their positions, rather than perpetuate the transition plan in the context in which the Minister and Secretary have taken the particular view of s 10A(3)(b) Care Act which I have referred to above.
To the extent that there is no guarantee that the appeal will be heard at the next sittings of the District Court in October 2022 and there might be delay in the hearing of an appeal until March 2023, that is regrettable. However it did not seem to me to be a particular basis to decline the relief. The orders I framed required the plaintiffs to act expeditiously. I had no reason to doubt that they will do so.

Costs

The question arose in relation to the costs of the proceedings: T47. Mr Bateman sought an order that the plaintiffs’ costs be paid by the Minister referring in particular to undertakings that were sought on a number of occasions to ensure that Leonardo would not be moved from the plaintiffs’ care, which requests had not been responded to by the DCJ: T47-48.

Mr Anderson opposed costs noting that the Minister had interim parental responsibility for Leonardo and has acted in accordance with the exercise of that parental responsibility as considered to be in the best interests of Leonardo: T49.
The Court’s power in relation to costs is essentially discretionary: s 98(1) CPA.
However, whilst in civil litigation there is provision for costs to follow the event, the practice of the Court in protective proceedings is essentially to ask, "what is the proper order for costs to be made?" Having regard to various rationale including the fact that protective proceedings are not adversarial proceedings and generally speaking, the award of costs is governed by the "welfare principle".
In this regard the practice of the Court in relation to costs and protective proceedings has been the subject of comment by Lindsay J in a number of cases.
In Re K’s Statutory Will [2017] NSWSC 1711 at [13]–[18] Lindsay J stated as follows:

“11. Given that substantial costs had been incurred in preparation of the contested question submitted for the Court’s determination, reference was made to section 98(1) of the Civil Procedure Act 2005 NSW as the principal source of the Court’s discretionary powers relating to costs, and to the practice of the Court (noticed in In Re An Incapable Person D [1983] 2 NSWLR 590 at 595 and Snelgrove v Swindells [2007] NSWSC 868 at [25]) of asking in protective matters, “What is the proper order for costs to be made?”, rather than simply making an order that “costs follow the event” or for costs to be paid out of an available fund.
The Approach to Costs in Protective Cases
14.   The rationale for such an approach is found in a need to give due recognition to factors not generally found in adversarial proceedings: CAC v Secretary, Department of Family and Community Services (No. 2) [2015] NSWSC 344 at [15]-[16].
15.   The protective jurisdiction of the Court (including, subject to particular legislative provisions, statutory jurisdiction) is generally governed by the “welfare principle” (namely, the principle that the welfare and interests of a person in need of protection are the paramount consideration) and an associated concern to ensure that whatever is done, or not done, is done in the interests, and for the benefit, of the particular person in need of protection.
16.   The Court needs to be alive to the possibility that private individuals who would otherwise be concerned to act to protect a person in need of protection might be deterred from acting if bound to submit to a costs order on an unsuccessful application made by them to the Court, even though reasonably made: CCR v PS (No. 2) (1986) 6 NSWLR 622 at 640F.
17.   Where participants in protective proceedings are close family members of the person in need of protection, the Court needs to hasten slowly in burdening a family member with an obligation to pay costs in circumstances in which imposition of such an obligation might impact adversely on relationships of, or care for, the person in need of protection.
18.   Protective proceedings are not adversarial in the sense encountered in ordinary civil litigation but, rather, are attended by a strong public interest element in which (as noted by Lord Eldon in Ex parte Whitbread in the Matter of Hinde, a Lunatic (1816) 2 Mer 99; 35 ER 878, extracted in W v H [2014] NSWSC 1696 at [39]-[40]) the Court generally needs to look to family members and carers for assistance in identifying problems to be solved and available solutions.”

In the particular circumstances of this case it seemed to me that the appropriate order for costs having regard to the history of the matter was that the Minister pay the plaintiffs’ costs of and incidental to the application and I permitted the plaintiffs to proceed to assessment of costs ordered for the purposes of r 42.7(2) UCPR. Namely, that the costs be payable upon agreement or assessment rather than otherwise being payable at the conclusion of the proceedings: T49-50.
I made it clear and note in these reasons that the costs order in this regard is simply confined to the costs of and incidental to the application and the proceedings to 7 September 2022 and did not and was not intended to determine or even provide a prima facie presumption for any further costs orders that might be made in the proceedings.

Orders

The orders I made were as follows:

Orders that there is to be no publication that would identify or tend to identify the child, the subject of these proceedings, except for the purpose of the proper conduct of these proceedings.

Orders that the child, the subject of the proceedings, be known as “Leonardo”.

Orders that the proceedings be known as “Re Leonardo and the Minister for Families, Community and Disability Services & Anor”.

Directs the Minister for Families, Community and Disability Services (Minister) and the Secretary, Department of Communities and Justice (Secretary) or their delegates on or before 16 September 2022 to identify to the plaintiffs the action, and the date of any such action, constituting the decision to transition Leonardo to the care of his paternal uncle [xxx] (to be known as AG) or provide the plaintiffs with a written notification of the transition decision (decision) by that date.

Directs the plaintiffs to inform the Minister, the Secretary or their delegates of their intentions regarding whether or not to pursue orders for administrative review of the decision, and/or relief for permanent placement of Leonardo with them or such other relief in relation to those matters or parenting responsibility as they may be advised (relief) on or before 7 October 2022.

Upon the undertaking of the plaintiff to do all acts and things to expeditiously prosecute any proceedings in the Civil and Administrative Tribunal, the Children’s Court, the District Court, or such other court or tribunal as they may commence proceedings in, order, subject to further order, that the Minister and delegate of the Minister be restrained from removing Leonardo from his current placement with the plaintiffs until further order, except where the Secretary or his Delegate reasonably considers there is an immediate risk of harm to Leonardo on fresh information about such harm.

Grants liberty to the parties to bring any application to vary and/or discharge the injunction on 24 hours’ notice to Meek J, or if he is unavailable, the Equity Duty Judge, on any new or further evidence.

Stands proceedings over to 9:00am on Friday 2 December 2022 before Meek J for mention.

Orders that these orders be entered forthwith.

Direct that the Minister be joined as Fourth Defendant to the proceedings.

Direct that the name of the First Defendant be amended to be “Secretary, Department of Communities and Justice”.

Note that the independent children’s lawyer is not named as a defendant in the proceedings but has been given notification of the proceedings.

Order that the Minister pay the plaintiffs’ costs of and incidental to the application in these proceedings to date.

Noting that that the plaintiffs may proceed to assessment of the costs in order 13 forthwith, order that for the purposes of rule 42.7(2) Uniform Civil Procedure Rules 2005 (NSW) the costs, the subject of order 13, be payable upon agreement or assessment of costs being a time otherwise that at the conclusion of the proceedings.

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Decision last updated: 29 September 2022

Medium Neutral Citation:	Re Leonardo [2022] NSWSC 1265
Hearing dates:	7 September 2022
Date of orders:	7 September 2022
Decision date:	21 September 2022
Jurisdiction:	Equity - Duty List
Before:	Meek J
Decision:	Restrain Minister for Families, Community and Disability Services from removing Leonardo from the care of the plaintiffs on terms
Catchwords:	CHILD WELFARE — Parens patriae — Very young infant (30 months) placed with plaintiffs for prior 15 months — interim parental responsibility allocated to Minister — Minister and Secretary pursue transition plan for permanent placement with paternal uncle — Plaintiffs’ application for joinder to Children’s Court proceedings opposed and dismissed — Plaintiffs essentially desire permanent placement of infant child — Urgent hearing — infant to be removed within days — Restraining order made PRACTICE — Parens patriae — Amended Summons makes reference to an independent children's lawyer (ICL) who has represented the interests of child in the Children's Court — ICL not named as a party as such — Nonetheless served with notice of application CHILD WELFARE — Parens patriae — Nature of care and protection jurisdiction — Exceptional nature of jurisdiction where proceedings in Children’s Court and appeal decision of Magistrate refusing joinder of applicant to proceedings — Analogous approach to circumstance where applicants also challenge substantively seek to challenge decisions of Minister and Secretary regarding placement and transition plans CHILD WELFARE — Parens patriae — consideration of permanent placement principles in s 10A(3)(b) of the Children and Young Persons (Care and Protection) Act1998 (NSW) INTERPRETATION — What use can be made of extrinsic materials — Explanatory notes, second reading speeches, relevant material in the Hansard record of debates
Legislation Cited:	Adoption Act 2000 (NSW) Child Protection Legislation Amendment Act 2014 (NSW), Sch 1 Child Protection Legislation Amendment Bill 2013 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 3, 8, 9, 10A, 17, 18, 19, 54, 69, 78, 78A, 79, 79A, 82, 83, 90AA, 91, 93, 94, 98, 99D, 143, 149I, 150, 232, 245, 247, Ch 8 Children's Guardian Act 2019 (NSW) Civil Procedure Act 2005 (NSW), ss 56, 98 Court Suppression and Non-publication Orders Act 2010 (NSW), s 4 Interpretation Act 1987 (NSW), ss 33, 34 Uniform Civil Procedure Rules 2005 (NSW), r 42.7 Voluntary Assisted Dying Act2022 (NSW), s 13
Cases Cited:	AB & JB v Secretary [2021] NSWDC 626 Builders Licensing Board v Mahoney (1986) 5 NSWLR 96 CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855 Cowling v Cowling (1998) FLC 92-801 DZU v Foundations Care [2021] NSWCATAD 142 Foster Carer v Department of Family and Community Services [2017] NSWDC 360; (2017) 26 DCLR (NSW) 66 Goktas v Government Insurance Office of New South Wales (1993) 31 NSWLR 684 GR v Secretary, Department of Communities & Justice; Minister for Families, Communities and Disability Services [2021] NSWCA 301 GR v Secretary, Department of Communities and Justice [2021] NSWCA 267 GR v Secretary, Department of Families, Disabilities and Community Services [2019] NSWCA 277 KH v Secretary, Department of Communities and Justice [2021] NSWDC 498 LZ and QJ v Family and Community Services [2017] NSWDC 414 Ping v Van Der Kroft [1982] 2 NSWLR 731 Re Adoption of IEK [2019] NSWSC 171 Re Anna, Bruno, Courtney and Deepak [2001] NSWSC 79 Re Baby S [2014] NSWSC 871 Re Frances and Benny [2005] NSWSC 1207 Re Georgia and Luke [2008] NSWSC 1277 Re Harris (1936) 37 SR (NSW) 17 Re June (No 2) [2013] NSWSC 1111 Re K’s Statutory Will [2017] NSWSC 1711 Re Linda [2011] NSWSC 1596 Re Tilly and Tilly and Minister for Family & Community Services [2015] NSWSC 1208 Re Tilly and Minister for Family and Community Services [2015] NSWSC 229 Re Victoria [2002] NSWSC 647; (2002) 29 Fam LR 157 Re Weir (1953) 70 WN (NSW) 78 Rogers (a pseudonym) v Secretary, Department of Family and Community ServicesNSW [2019] NSWDC 194 Secretary of the Department of Communities and Justice v Fiona Farmer [2019] NSWChC 5 Secretary, Department of Communities and Justice v KH [2021] NSWCA 308 Secretary, Family and Community Services v AH and AN [2017] NSWDC 412 SK v Secretary, Department of Family and Community Services [2016] NSWDC 273 SL v Secretary, Department of Family and Community Services [2016] NSWCA 124 Stanley v Director of Public Prosecutions (NSW) [2021] NSWCA 337; (2021) 398 ALR 355 T v H (1985) 3 NSWLR 270 TF v Department of Family & Community Services [2015] NSWSC 694
Category:	Procedural rulings
Parties:	C (First Plaintiff) [redacted] (Second Plaintiff) Secretary, Department of Communities and Justice (First Defendant) MGM (Second Defendant) M (Third Defendant) Minister for Families, Community and Disability Services (Fourth Defendant)
Representation:	Counsel: N J Bateman (Plaintiffs and Second Defendant) M W Anderson (First and Fourth Defendants) Solicitors: King Cain (Plaintiffs) Kenny Spring Solicitors (Second Defendant) Crown Solicitor’s Office (First and Fourth Defendants)
File Number(s):	2022/261908