Secretary, Department of Communities and Justice & Opunui

The case before the court involved the Secretary of the Department of Communities and Justice and the Independent Children’s Lawyer (ICL) in relation to the care and protection of two children, W and G. The parents were also involved, but the ICL was the only party actively participating in the appeal. The Secretary intervened in the proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW), initially declining to participate but later intervening after the primary judge’s requests. The court was required to decide whether the Secretary's proposal for parenting orders was appropriate, considering the unacceptable risk of harm to the children if they were to reside with either parent.

The legal issues before the court included whether the Secretary's proposed parenting orders were proper, given the unacceptable risk of harm to the children if they were to reside with either parent. The court had to consider the paramount consideration of the best interests of the children and whether the proposed orders would mitigate the identified risks. The primary judge found that the children were at an unacceptable risk of harm in the care of either parent and thus rejected the proposal for orders that would allow the children to live with their parents. Instead, the court made an order vesting the Minister with parental responsibility for the children, ensuring their safety and well-being.

The court reasoned that the unacceptable risk of harm identified by the primary judge at the interim hearing necessitated a thorough assessment of the proposed parenting orders. Despite the consent of all parties, the court could not simply adopt the proposed orders without ensuring they aligned with the paramount consideration of the children's best interests. The court found that the proposed arrangement, which allowed the children to reside with either parent, would expose them to an unacceptable risk of harm. Therefore, the court decided that the Minister should hold parental responsibility for the children, ensuring they would be in a safer environment.

The final order made by the court vested the Minister with parental responsibility for the children, W and G, to ensure their safety and well-being. The court rejected the proposal that would have allowed the children to reside with either parent, given the unacceptable risk of harm identified. This decision was based on the paramount consideration of the best interests of the children, ensuring they were protected from any potential harm.