Secretary, Department of Communities and Justice v KH

[2022] NSWCA 221

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Secretary, Department of Communities and Justice v KH & Ors [2022] NSWCA 221

Hearing dates:

06 April 2022

Decision date:

01 November 2022

Before:

White JA at [1];
Beech-Jones JA at [106];
Simpson AJA at [124]

Decision:

Summons dismissed with costs

Catchwords:

ADMINISTRATIVE LAW — judicial review — whether reasons of primary judge form part of the record — meaning of “ultimate determination” —primary judge’s decision a step towards an ultimate determination — reasons of primary judge do not form part of the record

CHILD WELFARE — Care proceedings — whether primary judge made an error of law on the face of the record by misconstruing or failing to apply the requirement that there be a ‘realistic possibility of restoration within a reasonable period’ — submissions invite merits review of primary judgment and are therefore rejected

CHILD WELFARE — Care proceedings — paramountcy of the best interests of the child —whether primary judge erred in focusing on the possibility that a parent would be capable of providing a safe environment for the child — primary judge did not err

ADMINISTRATIVE LAW — Irrelevant and relevant considerations — judge below erred in the way in which he took into account whether a parent was denied procedural fairness

Legislation Cited:

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 9, 10A, 60, 61, 62, 69, 70, 70A, 71, 72, 78, 79, 82, 83, 85, 91

Children and Young Person’s (Care and Protection) Amendment Act 2018 (NSW)

Courts Legislation Amendment Act 1996 (NSW)

Interpretation Act 1987 (NSW), s 8

Supreme Court Act 1970 (NSW), s 69

Cases Cited:

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33

Commissioner for Motor Transport v Kirkpatrick (1988) 13 NSWLR 368

Commissioner of Police v Attorney General for New South Wales [2022] NSWSC 595

Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58

D v C; Re B (No. 2) [2018] NSWCA 310

Department of Communities and Justice (DCJ) and Bloom [2021] NSWChC 2

Director of Public Prosecutions (NSW) v Mahamed [2022] NSWSC 147

Director of Public Prosecutions v Yerbury [2020] NSWSC 905

GJ Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503

Hot Holdings Pty LtdvCreasy (1996) 185 CLR 149; [1996] HCA 44

In the matter of Campbell [2011] NSWSC 761

Kriticos v New South Wales (1996) 40 NSWLR 297 JW Shaw QC and FJ Gwynne, Certiorari and Error on the Face of the Record” (1997) 71 ALJ 356

PQR v Director of Public Prosecutions (NSW) [2020] NSWSC 731

Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4

R v Brisbane City Council; Ex parte Read [1986] 2 QdR 22

R v Criminal Injuries Compensation Board, Ex parte Lain [1967] 2 QB 864

Re Alistair [2006] NSWSC 411

Re Frieda and Geoffrey [2009] NSWSC 133; (2009) 40 FamLR 608

Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89

Re Tanya [2016] NSWSC 794

Russell v Scott & Anor [2017] NSWSC 1720

Secretary, Department of Communities and Justice v KH [2021] NSWCA 308

Testro Bros. Proprietary Limited v Tait (1963) 109 CLR 353; [1963] HCA 29

Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43

Category:

Principal judgment

Parties:

Secretary, Department of Communities and Justice (Applicant)
KH (First Respondent)
CS (Second Respondent)
DH (Third Respondent)
BH (Fourth Respondent)
District Court of New South Wales (Fifth Respondent)

Representation:

Counsel:
P Herzfeld SC with B J Dean (Applicant)
Mr A N Williams (First Respondent)

Solicitors:
Crown Solicitor for New South Wales (Applicant)
Willoughby Law (First Respondent)

File Number(s):

2021/321969

Publication restriction:

1. Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), there be no access to or publication of information that would identify or tend to identify “BH”, except for the purpose of the proper conduct of these proceedings.
2. Order 2 is made on the grounds specified in s 8(1)(a), (c) and (e) of the Court Suppression and Non-publication Orders Act 2010.
3. Order 2 is to apply throughout the Commonwealth.
4. Order 2 is to apply until 26 November 2036.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

[2021] NSWDC 498

Date of Decision:

21 September 2021

Before:

Levy SC, DCJ

File Number(s):

2019/105176

HEADNOTE

[This headnote is not to be read as part of the judgment]

In August 2017 KH’s child was removed from her parental care and transferred to his maternal grandmother. On 4 March 2019 the Children’s Court considered whether to make the transfer of the child to his maternal grandmother permanent. The Children’s Court made orders on the papers in the absence of KH, ordering that parental responsibility be allocated to the child’s grandmother, with the Minister retaining responsibility for contact arrangements.

KH appealed to the District Court from the orders of the Children’s Court. The District Court held that there is a realistic possibility of restoration of the child into the parental care and responsibility of KH, and ordered the Secretary, Department of Communities and Justice to prepare an Amended Care Plan.

The Secretary, Department of Communities and Justice filed a summons for judicial review, seeking to quash the orders of the District Court.

The principal issues before this Court were:

(i) whether the reasons of the primary judge form part of the record,

(ii) whether the primary judge made an error of law on the face of the record by misconstruing or failing to apply the requirement in s 83(5) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) that there be ‘a realistic possibility of restoration within a reasonable period’ (Ground 1),

(iii) whether the primary judge made an error of law on the face of the record by failing to regard the safety, welfare and well-being of the child the subject of the proceeding as paramount (Ground 2),

(iv) whether the primary judge made an error of law on the face of the record by taking into account whether KH was denied procedural fairness by the Children’s Court (Ground 3), and

(v) whether the primary judge made an error of law on the face of the record by finding that KH was denied procedural fairness by the Children’s Court (Ground 4).

Held, dismissing the summons (per White JA, Beech-Jones JA and Simpson AJA)

As to issue (i) per the Court

The reasons of the primary judge do not form part of the record as they do not constitute an “ultimate determination” of the Court (s 69(4) Supreme Court Act 1970 (NSW)) given that the primary judge’s decision was just a step towards an ultimate determination. The reasons also do not form part of the record at common law as they are not incorporated in the orders so as to be an integral part of those orders (Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58). As all of the alleged errors of law arise from the reasons, the summons must be dismissed: at [40], [67], [68], [115], [124].

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33; Commissioner for Motor Transport v Kirkpatrick (1988) 13 NSWLR 368; Commissioner of Police v Attorney General for New South Wales [2022] NSWSC 595; Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58; D v C; Re B (No 2) [2018] NSWCA 310; Director of Public Prosecutions (NSW) v Mahamed [2022] NSWSC 147; Director of Public Prosecutions v Yerbury [2020] NSWSC 905; GJ Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503; Hot Holdings Pty LtdvCreasy (1996) 185 CLR 149; [1996] HCA 44; PQR v Director of Public Prosecutions (NSW) [2020] NSWSC 731; Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4; Re Alistair [2006] NSWSC 411; Re Frieda and Geoffrey [2009] NSWSC 133; (2009) 40 FamLR 608; Russell v Scott& Anor [2017] NSWSC 1720; Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43: considered.

Kriticos v New South Wales (1996) 40 NSWLR 297; R v Criminal Injuries Compensation Board, Ex parte Lain [1967] 2 QB 864; R v Brisbane City Council; Ex parte Read [1986] 2 QdR 22; Testro Bros. Proprietary Limited v Tait (1963) 109 CLR 353; [1963] HCA 29: cited.

As to issue (ii) (Ground 1) per the Court

Even if the reasons form part of the record, the submissions as to why the primary judge misconstrued or failed to apply the requirement that there be ‘a realistic possibility of restoration within a reasonable period’ invite a merits review of the judge’s decision, and therefore should be rejected: at [83], [117], [132].

Department of Communities and Justice (DCJ) and Bloom [2021] NSWChC 2; In the matter of Campbell [2011] NSWSC 761; Re Tanya [2016] NSWSC 794: considered.

Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89: cited.

As to issue (iii) (Ground 2) per the Court

Even if the reasons form part of the record, the primary judge did not err in law in focusing on the possibility that the mother would be capable of providing an appropriate environment for the child within a reasonable period. The primary judge’s decision must be considered in light of the permanent placement principle that the first preference is for a child to be restored to the care of his or her parent, and the primary judge had not been called on, at the time he gave his judgment, to decide whether it was in the best interests of the child that he be restored to the care of his mother: at [96]-[98], [117], [132].

As to issue (iv) and (v) (Grounds 3 and 4) per Beech-Jones JA and Simpson AJA

If the reasons did form part of the record, the primary judge erred in treating the making of a favourable finding under s 83(5) as a means of making redress for the wrong that was found to have been occasioned to KH by the Children’s Court. The assessment required by s 83 is directed to the prospects of restoration in the future, and that assessment is only informed by past injustices to the extent that they bear on the prospects of restoration in the future: at [121], [122], [132].

As to issue (iv) and (v) (Grounds 3 and 4) per White JA

Even if the reasons form part of the record, the primary judge did not err in law in finding that the Children’s Court denied KH procedural fairness as he found that the fact that orders were made in her absence contributed to the decline in her mental health and capacity and that was not an irrelevant nor a forbidden consideration (at [102], [103]).

JUDGMENT

1. WHITE JA: This is a summons for judicial review of orders of the District Court of 21 September 2021 on an appeal to that Court from orders of the Children’s Court (KH v Secretary, Department of Communities and Justice [2021] NSWDC 498). The proceedings concern a child born in late 2011 (J [115]).

2. On 4 March 2019 the Children’s Court made the following orders:

“FINAL ORDER

Pursuant to Section 83(7) The Court makes the following findings: Permanency planning has been appropriately and adequately addressed and approved. There is no realistic possibility of restoration to the mother and/or father with respect to the child.

Final Orders in accordance with the Minute of Care Order:

1. That pursuant to s79(1)(f) all aspects of parental responsibility except contact, for the child […] born […] are allocated to his grandmother […] until he shall attain the age of 18 years.

2. That pursuant to s79(2)(b) all aspects of parental responsibility for contact, for the child […] born […] are allocated to the Minister until he shall attain the age of 18 years.”

3. By summons filed on 1 April 2019 and amended summons filed on 14 August 2019, the child’s mother, KH, appealed to the District Court from the orders of the Children’s Court. By her amended summons she sought the following substantive relief:

“1.   The Orders made in the Children’s Court at Port Kembla on 4 March 2019 be set aside.

2. That pursuant to s 83(6) of the Children and Young Persons (Care and Protection) Act 1998 (“the Care Act”), the Court not accept the assessment of the Secretary, Department of Communities and Justice that there is no realistic possibility of restoration of the child […] born […] to the plaintiff.

3. That pursuant to s 79(1)(a) all aspects of parental responsibility for [the child] be allocated to the plaintiff.

…”

4. Section 91(1) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Care Act”) provides that 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 against the order. Section 91 further provides:

“(2)    An appeal is to be 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.

(3)    Without limiting subsection (2), the District Court may, instead of taking fresh evidence, decide to admit as evidence the transcript of proceedings before the Children’s Court and any exhibit tendered during those proceedings.

(4)    In addition to any functions and discretions that the District Court has apart from this section, the District Court has, for the purposes of hearing and disposing of an appeal, all the functions and discretions that the Children’s Court has under this Chapter or Chapter 6.

(5)    Without limiting the generality of subsection (4), the District Court may confirm, vary or set aside the decision of the Children’s Court.

(6)    The decision of the District Court in respect of an appeal is taken to be the decision of the Children’s Court and has effect accordingly.

(7)    Subject to any interlocutory order made by the District Court, an appeal does not affect the operation of the order appealed against or prevent the taking of action to implement that order.

(8)    The provisions of Chapter 6 apply to and in respect of the hearing of an appeal under this section in the same way as they apply to and in respect of the hearing of a care application under that Chapter.”

5. The proceedings in the District Court were protracted. Extensive evidence was given over 19 days between 24 August 2020 and 14 May 2021. On 21 September 2021 the judge delivered reasons extending to some 194 pages (KH v Secretary, Department of Communities and Justice [2021] NSWDC 498). The orders of the Court made that day were as follows:

“(1) Pursuant to s 83(2) and s 83(8A) of the Children and Young Persons (Care and Protection) Act 1998 (NSW), the Court finds that there is a realistic possibility of restoration of the child the subject of the appeal into the parental care and responsibility of his mother, the appellant in these proceedings;

(2)   Within 5 weeks of today’s date, the Secretary, Department of Communities and Justice, in consultation with the appellant, is to prepare an Amended Care Plan that reflects these reasons for decision;

(3)   The appeal is allowed, subject to Order (4) below;

(4)   Pending the making of final orders, Orders (1) and (2) of the orders made by the Children’s Court at Port Kembla on 4 March 2019 are to remain in place until the further order of this Court, pending consideration and approval of the Amended Care Plan the subject of Order (2) above;

(5)   Pending the making of final orders, the third respondent maternal grandmother is required to exercise her parental responsibilities in respect of the child the subject of the appeal in conformity with these reasons;

…

(7)   The proceedings are listed for further hearing at 10.00am on Friday 5 November 2021 for consideration of approval of an Amended Care Plan, a copy of which is to be provided to the Associate on or before Monday 31 October 2021;

(8)   Liberty to the parties to apply on reasonable notice if any further or other orders are required.”

6. No appeal lies from those orders.

7. A case worker for the Department of Communities and Justice (formerly Family and Community Services), Ms Shearer, deposed that she formed the view that proceeding with an amended care plan would cause irreparable harm to the child and potentially his mother if the Secretary sought judicial review of the decision of Levy SC DCJ and was successful in that application. The Secretary applied for a stay of the orders which the judge declined.

8. On 12 November 2021 the Secretary, Department of Communities and Justice filed a summons for judicial review, seeking to quash the orders of the District Court of 21 September 2021. The Secretary sought an order that the appeal from the decision of the Children’s Court of 4 March 2019 be remitted to the District Court to be determined according to law.

9. On 12 November 2021 the judge made orders for the appointment of mediators to assist the mother and the child’s grandmother to seek a resolution of their “interpersonal barriers and difficulties to aid the preparation of an amended care plan” (order 1(a) made on 12 November 2021). His Honour made orders for the conduct of the mediation and extended the time for the Secretary to prepare an amended care plan to 8 December 2021. That order was further extended to 13 December 2021. On 13 December 2021 Macfarlan JA stayed orders 1 and 2 of Levy SC DCJ of 21 September 2021 (Secretary, Department of Communities and Justice v KH [2021] NSWCA 308).

10. The Secretary contends that the orders of the District Court should be quashed on the ground of error of law on the face of the record. The grounds of review are as follows:

1. Judge Levy made an error of law on the face of the record by misconstruing or failing to apply the requirement in s 83(5) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) that there be ‘a realistic possibility of restoration within a reasonable period’.

2.    Judge Levy made an error of law on the face of the record by failing to regard the safety, welfare and well-being of the child the subject of the proceeding as paramount, in that his Honour:

a.    failed to consider, or adequately consider, whether it would be in the best interests of the child to be restored to the care of the first defendant;

b.    failed to consider, or adequately consider, whether restoration of the child to the care of the first defendant would expose the child to an unacceptable risk of psychological or other harm (including if restoration should fail);

…

3.    Judge Levy made an error of law on the face of the record by taking into account the irrelevant consideration of whether the first defendant was denied procedural fairness by the Children’s Court.

4.    Judge Levy made an error of law on the face of the record by finding that the first defendant was denied procedural fairness by the Children’s Court.”

(Ground 2(c) was not pressed).

11. The Secretary does not contend that the judge’s orders of 21 September 2021 are vitiated for jurisdictional error.

Supreme Court Act: s 69(4)

12. The first issue is whether the reasons of the judge form part of the record. No error of law appears on the face of the orders read against the originating process. In Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58, the High Court held (at 181-183) that at common law ordinarily the reasons of the inferior court do not form part of the record unless they have been incorporated as part of the court’s orders so as to be an integral part of those orders. That would not be done by merely introductory or incidental reference (at 182).

13. In response to the decision in Craig v South Australia, Parliament amended s 69 of the Supreme Court Act 1970 (NSW). That section now relevantly provides:

“(3)    The jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes, if the Court is satisfied that the ultimate determination of a court or tribunal in any proceedings has been made on the basis of an error of law that appears on the face of the record of the proceedings—

(a)    jurisdiction to quash the ultimate determination of the court or tribunal, and

(b)    if the Court determines that, as a matter of law, only one particular determination should have been made by the court or tribunal, jurisdiction to make such judgment or orders as are required for the purpose of finally determining the proceedings.

(4)    For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination.”

14. The issue is whether the orders of 21 September 2021 constituted the (or an) “ultimate determination” of the District Court. If they do, the judge’s reasons form part of the record.

15. Before turning to the construction of s 69(4) of the Supreme Court Act, it is convenient to understand, by reference to the provisions of the Care Act, how the issue arises.

16. Chapter 5 of the Care Act is headed “Children’s Court proceedings”. Part 2 of Ch 5 is headed “Care applications”. A care application is an application for a care order (s 60). A care order is an order under Ch 5 “…for or with respect to the care and protection of a child or young person and includes a contact order under s 86 but does not include a parent capacity order” (s 60).

17. A care order may only be made on the application of the Secretary except as otherwise provided (s 61(1)). Section 62 provides:

“62 Interim and final orders

A care order may be made as an interim order or a final order, except as provided by this Part.”

18. Section 69 provides that the Children’s Court may make interim care orders before the care application is finally determined. Section 70 provides that the Children’s Court may make other care orders as it considers appropriate for the safety, welfare and wellbeing of a child or young person in proceedings before it pending the conclusion of the proceedings. Section 70A provides that an interim care order should not be made unless the Children’s Court has satisfied itself that the making of the order is necessary, in the interests of the child or young person, and is preferable to the making of a final order or an order dismissing the proceedings.

19. Section 71 sets out the grounds on which a care order in relation to a child or young person may be made.

20. Section 72 provides:

“72 Determination as to care and protection

(1)    A care order in relation to a child or young person may be made only if the Children’s Court is satisfied that the child or young person is in need of care and protection or that even though the child or young person is not then in need of care and protection—

(a)    the child or young person was in need of care and protection when the circumstances that gave rise to the care application occurred or existed, and

(b) the child or young person would be in need of care and protection but for the existence of arrangements for the care and protection of the child or young person made under section 39A (Care responsibility on death of guardian or carer with full parental responsibility), section 49 (Care of child or young person pending care proceedings), section 69 (Interim care orders) or section 70 (Other interim orders).

(2)    If the Children’s Court is not so satisfied, it may make an order dismissing the application.”

21. Section 79 empowers the Children’s Court to allocate parental responsibility, or particular aspects of parental responsibility, to a person other than a parent.

22. Section 82 provides for the provision of a report to the Children’s Court after an order is made allocating parental responsibility of a child or young person. Section 82 relevantly provides:

“82 Report on suitability of arrangements concerning parental responsibility

(1)    The Children’s Court may, when making an order other than a guardianship order in any care proceedings (the relevant proceedings) allocating parental responsibility of a child or young person to a person (including the Minister) other than a parent, order a party to the relevant proceedings to prepare a written report concerning the suitability of the arrangements for the care and protection of the child or young person.

(2)    The report must—

(a)    be provided to the Children’s Court within 24 months or such earlier period as the Court may specify, and

(b)    include an assessment of progress in implementing the care plan, including progress towards the achievement of a permanent placement, and

(c)    unless the Court orders otherwise, be given to each of the other parties to the relevant proceedings.

…

(3)    If, after considering the report, the Children’s Court is not satisfied that proper arrangements have been made for the care and protection of the child or young person concerned, the Court may, on its own motion, conduct a review of progress in implementing the care plan (a progress review) and re-list the matter for that purpose.

…”

23. Section 83 deals with the provision of a permanency plan which must be prepared and with which the Children’s Court must be satisfied before a final care order is made (s 83(7)). It relevantly provides:

“83 Preparation of permanency plan

(1)    If the Secretary applies to the Children’s Court for a care order (not being an emergency care and protection order) for the removal of a child or young person, the Secretary must assess whether there is a realistic possibility of the child or young person being restored to his or her parents within a reasonable period, having regard to—

(a)    the circumstances of the child or young person, and

(b)    the evidence, if any, that the child or young person’s parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care.

(2)    If the Secretary assesses that there is a realistic possibility of restoration within a reasonable period, the Secretary is to prepare a permanency plan involving restoration and submit it to the Children’s Court for its consideration.

(3)    If the Secretary assesses that there is not a realistic possibility of restoration within a reasonable period, the Secretary is to prepare a permanency plan for another suitable long-term placement for the child or young person and submit it to the Children’s Court for its consideration.

…

(5)    The Children’s Court is to decide whether to accept the Secretary’s assessment of whether or not there is a realistic possibility of restoration within a reasonable period—

…

(b)    in the case of a child or young person who is 2 or more years of age on the date the Children’s Court makes an interim order allocating parental responsibility for the child or young person to a person other than a parent—within 12 months after the Children’s Court makes the interim order.

(5A)    However, the Children’s Court may, having regard to the circumstances of the case and if it considers it appropriate and in the best interests of the child or young person, decide, after the end of the applicable period referred to in subsection (5), whether to accept the Secretary’s assessment of whether or not there is a realistic possibility of restoration within a reasonable period.

(6)    If the Children’s Court does not accept the Secretary’s assessment, it may direct the Secretary to prepare a different permanency plan.

(7)    The Children’s Court must not make a final care order unless it expressly finds—

(a)    that permanency planning for the child or young person has been appropriately and adequately addressed, and

(b)    that prior to approving a permanency plan involving restoration there is a realistic possibility of restoration within a reasonable period, having regard to—

(i)    the circumstances of the child or young person, and

(ii)    the evidence, if any, that the child or young person’s parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care.

…

(8)    A permanency plan is only enforceable to the extent to which its provisions are embodied in, or approved by, an order or orders of the Children’s Court.

(8A)    A reasonable period for the purposes of this section must not exceed 24 months.

…”

24. By reason of s 91(4) the District Court has all the functions and discretions under Chapters 5 and 6 for the purpose of hearing and disposing of the appeal.

25. It was common ground that s 83 was and is engaged in the District Court proceeding.

26. Section 86 provides for the making of contact orders.

27. To answer the question under s 69(4) of the Supreme Court Act whether the orders of Levy SC DCJ of 21 September 2021 were the Court’s “ultimate determination” within the meaning of s 69(4), such that his Honour’s reasons form part of the face of the record, one asks, what remains to be decided?

28. The matter decided by order 1 (see [5] above) was a decision under s 83(5) not to accept the Secretary’s assessment that there is no realistic possibility of restoration of the child to the parental responsibility of his mother. (The time limitation in s 83(5)(b) would be inapplicable to the decision of the District Court as no interim order allocating parental responsibility has been made by the District Court.)

29. It is clear from orders 2 and 7 that the primary judge was not satisfied that permanency planning for the child had been appropriately and adequately addressed in the evidence before him. It follows that the judge could not make a final care order (s 83(7)). Nor did the judge purport to do so.

30. Consistently with this, order 2 required the Secretary, in consultation with the mother, to prepare an amended care plan that reflected his Honour’s reasons for decision.

31. The parties did not agree upon what had and had not been decided by the orders of 21 September 2021. Mr A N Williams, who appeared for the mother, submitted that, as required by s 83(7), further steps must be made before a final care order can be made. The District Court must be satisfied that permanency planning for the child has been appropriately and adequately addressed and a finding will need to be made prior to the approval of a permanency plan involving restoration, that there be a realistic possibility of restoration within a reasonable period having regard to the then circumstances of the child and the then evidence as to whether the child’s mother is likely to be able to satisfactorily address the issues that led to the removal of the child from her care.

32. Mr Herzfeld SC, who appeared with Mr Dean for the Secretary, submitted that the requirement in s 83(7)(b) that, prior to approving the permanency plan, the Court be satisfied that there is a realistic possibility of restoration within a reasonable period, had already been decided. He submitted that there would not be a:

“second go-around by Judge Levy or anyone else at the final care order stage of the question of whether there is a reasonable possibility of restoration within a reasonable period. That question has been answered by the determination of which we seek review…”.

33. I accept Mr Williams’ submission on this issue. The judge’s orders decide that at the time of his orders (that is, 21 September 2021) there was a realistic possibility of restoration of the child into the parental care and responsibility of his mother (s 83(5)) within two years (s 83(8A)) thereby rejecting the Secretary’s contrary assessment. The finding required by s 83(7) is a finding required to be made prior to the making of the final care order having regard to the then circumstances of the child. The Care Act must be administered in accordance with the principle that the interests of the child are paramount (s 9) and should be construed in accordance with that principle. The issue will have to be reassessed at the time consideration is given to approval of a permanency plan.

34. There has been a determination that the appeal from the Children’s Court should be allowed. There has been a determination by the judge that his Honour was satisfied, as at 21 September 2021, that there is a realistic possibility of restoration of the child into the parental care and responsibility.

35. There has been no determination “prior to approving a permanency plan” within the meaning of s 83(7)(b) whether restoration within a reasonable period is a realistic possibility having regard to the circumstances of the child.

36. There has been no presentation of a care plan to the District Court under s 78 and no determination by the court as to whether provisions of a care plan should be embodied in and approved by orders of the court (s 78(4)).

37. There has been no determination as to whether an order should be made, as sought by the mother, that some or all aspects of parental responsibility for the child should be allocated to her (under s 79).

38. There has been no determination as to whether any contact orders should be made.

39. In terms of the relief claimed in the amended summons, there has been a determination of the relief claimed in paragraph 1 but not of the relief claimed in paragraphs 2 and 3.

40. Both s 69(3) and (4) are expressed in inclusive terms. Neither is exhaustive of either the jurisdiction of the Court to grant relief in the nature of certiorari, or of what is encompassed by the face of the record. But, if s 69(4) is inapplicable, the law is governed by the High Court’s decision in Craig v South Australia, and the reasons are not incorporated in the orders so as to be an integral part of those orders.

41. The same words “ultimate determination” are used both to confer jurisdiction (s 69(3)(a)) and to determine what constitutes the face of the record (s 69(4)). It might be argued that if the decision is amenable to judicial review for error of law on the face of the record, the record will include the reasons of the decision-maker.

42. But because s 69(3) is expressed in inclusive terms, rather than as an exhaustive statement of the Court’s jurisdiction, this does not follow. If at common law the Court has jurisdiction to quash an interim or preliminary order that affects rights until a final order is made, it does not follow that on that account the interim order should be treated as an ultimate determination for the purposes of s 69(3) or (4) of the Supreme Court Act.

43. The mother does not dispute that the orders of 21 September 2021 are amenable to judicial review by way of an application for an order in the nature of certiorari because they affect parties’ rights. In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10, Mason CJ, Dawson, Toohey and Gaudron JJ said (at 580) that certiorari lay where a decision under review was a “…step in a process capable of altering rights, interests or liabilities” (citing R v Criminal Injuries Commission Compensation Board, Ex parte Lain [1967] 2 QB 864 at 881, 884; Testro Bros. Proprietary Limited v Tait (1963) 109 CLR 353; [1963] HCA 29 at 366-367, per Kitto J; 373-374 per Menzies J).

44. In Hot Holdings Pty LtdvCreasy (1996) 185 CLR 149; [1996] HCA 44, Brennan CJ, Gaudron and Gummow JJ said (at 159):

“Thus, for certiorari to issue, it must be possible to identify a decision which has a discernible or apparent legal effect upon rights. It is that legal effect which may be removed for quashing.

This formulation encompasses two broadly typical situations where the requirement of legal effect is in issue: (1) where the decision under challenge is the ultimate decision in the decision-making process and the question is whether that ultimate decision sufficiently "affects rights" in a legal sense; (2) where the ultimate decision to be made undoubtedly affects legal rights but the question is whether a decision made at a preliminary or recommendatory stage of the decision making process sufficiently "determines" or is connected with that decision.”

45. The Court discussed at length whether a recommendation that is a step towards the making of an ultimate decision that affects rights will or will not be amenable to certiorari. The majority agreed with the conclusion of Thomas J in R v Brisbane City Council; Ex parte Read [1986] 2 QdR 22 and that certiorari lies “…where a preliminary decision must be taken into account by a body entrusted with the power to make a decision directly determining legal rights” (at 164). The majority concluded that:

“If the final decision-making body is not obliged to take the recommendations into account, then certiorari will not lie.”

and

“A preliminary decision or recommendation, if it is one to which regard must be paid by the final decision-maker, will have the requisite legal effect upon rights to attract certiorari.” (at 165)

46. In Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 the High Court stated (at [25]) that “…an order in the nature of certiorari is available only in respect of an exercise or purported exercise of power which has, at the date of order, an ‘apparent legal effect’”.

47. In Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4, the plurality (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ) said (at [28]):

“The function of an order in the nature of certiorari is to remove the legal consequences, or purported legal consequences, of an exercise or purported exercise of power which has, at the date of the order, a discernible or apparent legal effect upon rights (35).”

48. In his opening written submissions, the Secretary opined that the drafting of s 69(3) and (4) to use the language of “ultimate determination” may have been intended to reflect the use of “ultimate decision” in Hot Holdings. I agree.

49. In his oral submissions, Mr Herzfeld posited that the language of “ultimate determination” may have been drawn from the judgment of Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33, which concerned the issue of what decisions of an administrative character made under an enactment were amenable to judicial review pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth). It was there held that a tribunal’s finding that the licensee was not a fit and proper person to hold a licence was a reviewable decision as it was an “essential preliminary” to an ultimate decision to cancel the licence.

50. Mason CJ, with whose reasons Brennan J agreed, said (at 337):

“…a reviewable ‘decision’ is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.

Another essential quality of a reviewable decision is that it be a substantive determination. With the exception of s. 3(2)(g), the instances of decision mentioned in s. 3(2) are all substantive in character…”

51. Mason CJ also said (at 338, 339):

“My view is more in accord with the tentative opinion expressed earlier by Ellicott J. in Ross v. Costigan (1982) 59 FLR 184 at 197, when he said that ‘it may well be that the word 'decision' means an ultimate or operative determination not a mere expression of opinion or a statement which can of itself have no effect on a person’. However, I would not wish for myself to place emphasis on the words ‘of itself’ in this statement. To say that a reviewable decision is an ultimate or operative determination does not mean that antecedent conclusions or findings which contribute to the ultimate or operative decision are beyond reach. Review of an ultimate or operative decision on permissible grounds will expose for consideration the reasons which are given for the making of the decision and the processes by which it is made.

...

It follows from my interpretation of the word ‘decision’ that the Federal Court had jurisdiction under s. 3(1) of the A.D.(J.R.) Act to review the Tribunal's finding that the licensees were no longer fit and proper persons to hold their broadcasting licences under the Act. Although that decision was an intermediate determination made on the way to deciding whether to revoke or suspend the licences or to impose conditions on them, it was a decision on a matter of substance for which the statute provided as an essential preliminary to the making of the ultimate decision.

On the other hand, the Tribunal's conclusion that Mr. Bond would not be found to be a fit and proper person to hold a licence was not a determination for which the Act provided and was no more than a step in the Tribunal's reasoning on the way to the finding that the licensees were no longer fit and proper persons to hold their licences.”

52. In Hot Holdings and Australian Broadcasting Tribunal v Bond the distinction is drawn between the ultimate decision in the decision-making process (or ultimate or operative determination), a decision or recommendation made at a preliminary stage to which the decision maker might or might not have to have regard, and a step in reasoning.

53. In Craig v South Australia the High Court (at 181) considered but rejected an expansive approach to what constitutes the record for the purposes of certiorari expressed in decisions of this Court in GJ Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503 at 515 and Commissioner for Motor Transport v Kirkpatrick (1988) 13 NSWLR 368 at 389-393, 394, 395.

54. In GJ Coles & Co Ltd v Retail Trade Industrial Tribunal, Kirby P and Hope JA said (at 515):

“To confine the question of whether relief, prerogative in nature, should be given by reference only to a limited number of documents, appears quite unrealistic in modern circumstances. The history of the “record” upon which error must be shown is related to the manner in which, in earlier times, the court rolls were brought up to the King's courts for review. To confine the record, for the purposes of modern judicial review, to a limited class of formal documents only was described by Griffiths LJ, as he then was, in R v Knightsbridge Crown Court; Ex parte International Sporting Club (London) Ltd [1982] 1 QB 304 at 314 as ‘formalism triumphant’. Just as in that case it was said that the court could scrutinise the judgment and reasons given below to see if error appears, so in this case this Court can examine for present purposes not only the award and the judgment which preceded it but the transcript and record of the proceedings of the Tribunal. These are plainly part of the modern record of this Tribunal.”

55. In Commissioner for Motor Transport v Kirkpatrick, Priestley JA set out further reasons to support the approach taken by Kirby P and Hope JA in GJ Coles & Co Ltd v Retail Trade Industrial Tribunal as to what constitutes “the record”. Priestley JA observed that the form of the writ or certiorari commanded the inferior tribunal to send to the Court of King’s Bench such of the materials in the possession of the inferior tribunal as the Court of King’s Bench wanted to see (at 390, 391). Priestley JA said (at 391):

“This discussion so far as I am aware has never dealt with the question why the undoubted former power of King's Bench should be regarded as restricted in the way in which it is for practical purposes if attention is focused on a narrow view of the meaning of the record. More substantially, those authorities which have concentrated on the idea that only what the inferior tribunal chooses to incorporate in a document which is accorded the status of the record have not explained why it should be left to the inferior tribunal rather than the one which has the power to make the orders to decide what materials shall go to answer the superior tribunal's command.”

56. The High Court’s rejection of these views in Craig v South Australia was quickly addressed by Parliament. Section 69(3) and (4) of the Supreme Court Act were introduced in 1996 by the Courts Legislation Amendment Act 1996 (NSW) in response to that decision and the criticism of it by Kirby P in Kriticos v New South Wales (1996) 40 NSWLR 297 at 299-302 (JW Shaw QC and FJ Gwynne, “Certiorari and Error on the Face of the Record” (1997) 71 ALJ 356 at 367). The explanatory note to the Courts Legislation Amendment Act in relation to those provisions was as follows:

“The High Court decision of Craig v State of South Australia (1995) 184 CLR 163 is based on a construction of the phrase ‘error of law on the face of the record’ that is narrower than the construction previously given to that phrase by the New South Wales Court of Appeal. The effect of the new construction is to limit the jurisdiction of the Supreme Court to grant any relief or remedy by way of an order in the nature of a writ of certiorari. The writ of certiorari is the means by which a superior court can supervise inferior courts and tribunals in the exercise of their jurisdiction and, in particular, can grant relief where jurisdiction has been wrongly exercised. Item [8] (in so far as it inserts a new section 69 (3) and (4)) restores the Supreme Court’s jurisdiction to what it was before Craig v State of South Australia by making it clear that the reasons for the ultimate determination of a court or tribunal (its ‘reasons for decision’) form part of the face of the record of proceedings of the court or tribunal.”

57. There was no elucidation in the explanatory note or the Minister’s Second Reading Speech as to what was intended to be meant by the expression “ultimate determination”.

58. It may readily be assumed that the parliamentary draftsman in using the expression “ultimate determination” had regard to the reasoning in both Hot Holdings and Australian Broadcasting Tribunal v Bond. In both decisions the High Court distinguished the “ultimate decision” or “ultimate or operative determination” from an earlier preliminary decision in the decision-making process that might or might not be reviewable according to whether it affected legal rights. Thus s 69(4) does not extend to an anterior decision, that is not the ultimate decision, notwithstanding that certiorari is available to quash that anterior decision.

59. This was the view taken by Kirby J in Re Alistair [2006] NSWSC 411 at [130] and by me in Re Frieda and Geoffrey [2009] NSWSC 133; (2009) 40 FamLR 608 at [35]-[38].

60. In Re Alistair and in Re Frieda and Geoffrey, Kirby J and I held that s 69(4) did not have the effect that the reasons of a Children’s Court magistrate for the making of an interim care order were to be taken as part of the record, even though certiorari would lie in respect of the magistrate’s decision because it affected rights.

61. Mr Williams submitted that this construction is supported by the reference in s 69(4) to “its [the court’s or tribunal’s] ultimate determination” being to “the ultimate determination of the court or tribunal”. The singularity of that expression is inconsistent with s 69(4) applying to an anterior decision that affected rights for which certiorari would lie that was not “the” ultimate determination of the court or tribunal. However, s 8(b) of the Interpretation Act 1987 (NSW) (the singular includes the plural) answers this argument. To the extent I relied on this consideration in Re Frieda and Geoffrey (at [38]) I erred.

62. Nonetheless having had the opportunity to consider the question again, I otherwise adhere to my reasoning in Re Frieda and Geoffrey. I would add that s 69(4) provides that it is only for the purposes of s 69(3) that the reasons of the court or tribunal for its ultimate determination form part of the face of the record. The real effect of s 69(3) was not in the conferral of jurisdiction by s 69(3)(a) (which jurisdiction the court already had) but in the conferral of the power in the exercise of the jurisdiction referred to in s 69(3)(a) to make the order that the court or tribunal should have made if only one decision were open, in order finally to determine the proceedings in the court or tribunal.

63. That is not to say that it is only where the exercise of the power under s 69(3)(b) is under consideration that s 69(4) applies. Rather, because s 69(3)(a) was necessary only to define the circumstances in which the power under s 69(3)(b) could be exercised, that suggests that the meaning of “ultimate determination” in s 69(3) and (4) is a final determination of the parties’ rights and not a preliminary decision or step in the process of determining their rights.

64. In Russell v Scott & Anor [2017] NSWSC 1720 at [99]-[100], PQR v Director of Public Prosecutions (NSW) [2020] NSWSC 731 at [63], Director of Public Prosecutions v Yerbury [2020] NSWSC 905 at [46], and Director of Public Prosecutions (NSW) v Mahamed [2022] NSWSC 147 at [97] it was held that reasons for decisions of the Local Court on the taking of evidence by audio-visual link, admissibility of evidence or refusal to order separate hearings of charges did not engage s 69(4).

65. In Commissioner of Police v Attorney General for New South Wales [2022] NSWSC 595, Wright J held (at [233]-[255]) that if he were required to reach a concluded view on the issue, he would find that a Coroner’s decision to reject a claim for public interest immunity made by the Commissioner of Police in respect of a brief of evidence the Coroner determined to make public was an ultimate determination of the Commissioner’s application to exclude material from the Coroner’s brief of evidence. His Honour noted (at [235]) that s 69(3) does not refer to the ultimate determination of any proceeding, but the ultimate determination by a court or tribunal in any proceeding.

66. There is no reason to doubt that decision. It illustrates that there are circumstances in which an application in a proceeding can result in an ultimate determination for the purposes of s 69(4), although the determination does not conclude the decision-making process. The decision ultimately determined the Commissioner’s claim.

67. Nonetheless, although the orders of 21 September 2021 are decisions in respect of which certiorari lie, they are not the (or an) “ultimate determination” of the District Court of the mother’s amended summons. Although it is an “ultimate determination” that the appeal from the Children’s Court be allowed, that determination does not, by itself, determine the parties’ rights. It is no more than a step towards an ultimate determination. The issues of parental responsibility, contact orders, and permanent care plans remain to be determined.

68. Accordingly, I conclude that the reasons of the primary judge do not form part of the record.

69. It follows that no error of law is disclosed. The summons for judicial review should be dismissed.

70. If I am wrong in that conclusion and the judge’s reasons do form part of the record, nonetheless I do not discern any error of law.

71. The first ground on which an order in the nature of certiorari is sought is quoted at [9] above.

Ground 1

72. The Secretary submitted that the judge misconstrued the phrase “a realistic possibility of restoration within a reasonable period” in s 83(5) of the Care Act or failed to apply that requirement. Section 83(8A) provides that a “reasonable period must not exceed 24 months”. On the face of it, s 83(5) raises a factual issue for determination. No doubt if the judge misconstrued the section that would be an error of law. The Secretary submitted that the construction of s 83(5) was as expounded by Rein J in Re Tanya [2016] NSWSC 794 at [70] and submitted that Judge Levy did not apply that analysis.

73. In Re Tanya Rein J (at [69]) endorsed the following observations of the then President of the Children’s Court which were in turn largely drawn from the judgment of Slattery J in In the matter of Campbell [2011] NSWSC 761. Rein J quoted the following with approval:

“The principles may be summarised as follows:

•    A possibility is something less than a probability; that is, something that it is likely to happen. A possibility is something that may or may not happen. That said, it must be something that is not impossible.

•    The concept of realistic possibility of restoration is not to be confused with the mere hope that a parent's situation may improve.

•    The possibility must be 'realistic', that is, it must be real or practical. The possibility must not be fanciful, sentimental or idealistic, or based upon 'unlikely hopes for the future’. It needs to be 'sensible' and 'commonsensical'.

•    It is at the time of the determination that the Court must make the assessment. It must be a realistic possibility at that time, not merely a future possibility.

• It is going too far to read into the expression a requirement that a parent must always at the time of hearing have demonstrated participation in a program with some significant "runs on the board": In the matter of Campbell [2011] NSWSC 761 at [56].

•    There are two limbs to the requirements for assessing whether there is a realistic possibility of restoration. The first requires a consideration of the circumstances of the child or young person. The second requires a consideration of whether the parent(s) are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care.

• The determination must be undertaken in the context of the totality of the Care Act, in particular the objects set out in s 8 and other principles to be applied in its administration, including the notion of unacceptable risk of harm.”

74. The fourth dot point which seeks to draw a distinction between a current realistic possibility and a future possibility is problematic. The possibility of restoration necessarily speaks to the future.

75. When Re Tanya was decided, s 83 made no reference to a time frame in which the realistic possibility of restoration should be assessed. Section 83 was amended by the Children and Young Person’s (Care and Protection) Amendment Act 2018 (NSW) to provide for the assessment to be of whether there is the realistic possibility of restoration within a reasonable time. What was said by Slattery J in In the matter of Campbell, and by Rein J in Re Tanya required reassessment having regard to that legislative amendment. In Department of Communities and Justice (DCJ) and Bloom [2021] NSWChC 2, the President of the Children’s Court said:

“[170] Importantly, Justice Slattery held that it is at the time of the determination that the Court must make the assessment. It must be a realistic possibility at that time, not merely a future possibility. This restriction has been removed by recent amendments to the Care Act. The amendments inserted the additional words “within a reasonable time” into the relevant sub-sections of s 83. It is necessary, therefore, to look more closely at the significance of the addition of those words. In my view, the effect of those words has been to remove the restriction formulated by Justice Slattery in Re Campbell, when he said:

‘It is going too far to read into the expression a requirement that a parent must always at the time of hearing have demonstrated participation in a program with some significant "runs on the board’: at [56].

[171] Instead, now, the Court may take into account the progress of parents in relation to their rehabilitation, their progress in respect of gaining insight into their parenting deficiencies, and their ability to satisfactorily address the issues that have led to the removal of the child.

[172] The Court may also have regard to any plan that prepares, educates or assists parents in moving towards a restoration, which involves for example, supports, scaffolding, treatment, training and education, provided it is viable and practicable.

[173] The principles relating to the phrase “a realistic possibility of restoration” may now be summarised therefore, by reference to Re Campbell and Re Tanya, to which may now be added the requirements for the restoration to be realistically possible within a reasonable time, as follows:

•   A possibility is something less than a probability; that is, something that is likely to happen. A possibility is something that may or may not happen. That said, it must be something that is not impossible.

•   The concept of realistic possibility of restoration is not to be confused with the mere hope that a parent's situation may improve.

•   The possibility must be 'realistic', that is, it must be real or practical. The possibility must not be fanciful, sentimental or idealistic, or based upon 'unlikely hopes for the future'. It needs to be 'sensible' and 'commonsensical’.

•   A realistic possibility may be evidenced at the time of hearing by a coherent program already commenced and with some significant 'runs on the board', or by the development of and commitment to a cohesive and viable plan that is sensible, practicable and viable within a reasonable time.

•   There are two limbs to the requirements for assessing whether there is a realistic possibility of restoration. The first requires a consideration of the circumstances of the child or young person. The second requires a consideration of the evidence, if any, that the parent(s) are likely to be able to satisfactorily address the issues that have led to the removal of the child.

• The determination must be undertaken in the context of the totality of the Care Act, in particular the objects set out in s 8 and other principles to be applied in its administration, including the notion of unacceptable risk of harm.”

76. The Secretary did not make any submissions as to (and indeed did not refer to) his Honour’s analysis. Admittedly without the benefit of argument, I presently see no reason to disagree with his Honour’s analysis.

77. The distinction between a mere hope of restoration and a reasonable possibility of restoration within two years, which may be evidenced by the development of and commitment to a cohesive and viable plan that is sensible, practical and viable, is a question of fact and not of law. If there were no evidence to support such a realistic possibility, the judge would have committed an error of law in finding that such a realistic possibility existed. But to be amenable to judicial review, the error of law would have to appear on the face of the record. The Secretary advanced no submission that on the face of the record (which for these purposes I assume includes the reasons of the judge) there was no evidence to support his Honour’s conclusion.

78. The Secretary submitted that the judge did not disclose any consideration of the relevant authorities, citing Re Tanya, In the matter of Campbell and Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89. That would not disclose error of law, even if the authorities cited by the Secretary were the relevant authorities. Having regard to the 2018 amendments to the Care Act, they were not.

79. The judge referred to and relied upon evidence given by the mother’s treating psychologist, Mr Di Martino, and concluded (at [625]) that his evidence persuaded him that:

“…if the necessary treatment and supports are in place for the appellant, she could realistically achieve the goal of restoration within a reasonable time: s 83(8A) of the Care Act”.

80. The Secretary did not submit that there was no evidence to support his Honour’s conclusion. His Honour’s conclusion did not involve an error of law.

81. Under the heading “Amended care plan” the judge said:

“[644] I am satisfied that the appellant has now reached a mature and rational realisation that she must be willing to do what is required to co-operate with DoCJ for restoration to occur, and to attend to her health, housing, and related issues. She will need the assistance of Mr Di Martino and other service providers, as well as the co-operation of her own mother who to date, has been very protective of the child, and resistant to any changes in his care arrangements, for so long as the appellant’s situation has remained problematic.

...

[646] Effecting a re-set at this time will not be an easy task, but I am satisfied the appellant is motivated to do what it takes to achieve this over the course of time, in the manner and in the context described by Mr Di Martino in his evidence. The conclusion of this litigation and its related constraints will be a significant liberating factor that will enable her to get on with those tasks.

[647] Underpinning the task of implementing changed arrangements in this case is the requirement that all concerned act in the paramount best interests of the child where, as Mrs Griffiths has insightfully observed, the bond between mother and son is strong. The attachment to his mother is secure. He wants to be with his mother, if she is well.”

82. The Secretary referred to the judge’s findings of many problems in the mother’s life that the judge described as “entrenched” (at J [22]) including the psychological impact of an historical sexual assault, difficulties with neighbours, unsatisfactory housing, anger issues and alcohol abuse, and the uncertainty as to how long it would take her to achieve the therapeutic goals contemplated by her treating psychologist, Mr De Martino. The Secretary submitted that the judge impermissibly allowed a degree of idealism to infect his consideration and determination of the statutory test. The Secretary submitted that there was a degree of hope in many of the judge’s remarks which was inconsistent with the statutory requirement that there be a realistic possibility of restoration within a reasonable time.

83. This submission invited a merits review of the judge’s decision. That invitation should be rejected. If the judge was in error in the way described, the error was one of fact not law.

Ground 2

84. Ground 2 is quoted at [9] above.

85. In so far as grounds 2(a) and (b) assert that the judge failed adequately to consider whether it would be in the best interests of the child to be restored to the care of his mother, or whether restoration to the care of his mother would expose him to an unacceptable risk of harm, including if restoration should fail, the ground of appeal invites a merits review and does not identify an error of law.

86. The Secretary submitted that although the judge mentioned the requirement of s 9 that the child’s best interests be paramount, in his dispositive reasons he did not analyse how restoration of the child to his mother would be consistent with the child’s safety, welfare and wellbeing.

87. The Secretary submitted:

“25. It is telling that his Honour’s reasons do not include a comprehensive treatment of the potential risks that may flow to BH as a result of a decision to restore him to the care of his mother, nor does it any include any reference to any harm that may flow to BH if restoration should fail. To adopt Macfarlan JA’s language in his reasons granting a stay, that is consistent with the ‘perhaps overwhelming focus in his [Honour’s] deliberations on the position of the mother KH and her right to be given the opportunity to obtain restoration of the child BH to her’ [WF tab 3 p 21 [25]]. That is to say, the reasons of Judge Levy read in their entirety emphasise the needs and circumstances of KH, and do not appear to be occupied to any great extent with the needs and circumstances of her son notwithstanding the requirement of s 9(1).

26. That is despite the fact that there was available to the District Court evidence, including expert opinion evidence, capable of supporting findings that: BH would be at a risk of ‘psychological damage’ if he were to be exposed to ‘[KH’s] unfortunate anti-social behaviour’ (at [378]–[379]); that ‘any change in the present care arrangements would be detrimental to [BH’s] emotional development’ and ‘would cause psychological damage beyond description’ because of [KH] ‘not being in a fit state of mind to have [BH] placed back in her care’ (at [429]); and, that the ‘restoration of [BH] to his mother would not promote his best interests and if it occurred, it would place him in a situation of harm’ (at [461]). It is not apparent from the reasons that his Honour grappled at all with the possibility that the decision to return BH to the care of KH could expose BH to these potential harms.”

88. The Secretary submitted that the judge placed overwhelming focus on the interests of the mother whereas he was required to give paramount consideration to the safety, welfare and wellbeing of the child.

89. This submission fails to address the preliminary nature of the judge’s decision.

90. The Secretary did not dispute that the judge adverted to the requirements of s 9 of the Care Act that the child’s best interests be paramount. In an early section of the judgment under the heading “Overview” the judge noted that the child was removed from her care in traumatic circumstances when he was aged almost five years. He said that the mother had now properly and “pragmatically” conceded that the child’s removal from her parental care was legally justified ([17]) but continued to rail about the traumatic circumstances in which the child was removed and the “systemic failure to consider less intrusive alternatives that were available to DoCJ at the time instead of the final orders that were sought” (at [18]). In circumstances which the judge found were no fault of the mother, final orders were made in the Children’s Court in her absence. The judge then described the result of this as follows:

“[22] The appellant is also dissatisfied and angered by the ensuing dystopic and cruelling repercussions for her and for her son because since time has passed, the prospects for restoration have now become much more complicated by the consequential and deleterious alteration to her own life’s circumstances. In that regard, the effluxion of time has not only exacerbated her difficulties, but it has also served to entrench the ongoing adverse repercussions of the orders made in her absence. This has made it much more difficult for the appellant to restore the position she was in before those orders were made, as best can be achieved in the circumstances.

[23] That changed dynamic now presents challenges to the task of re-setting the relationships of the parties, having regard to the interests of justice in the context of the paramount best interests of the child.

[24] In the Children’s Court, the appellant was intending to argue that there was a realistic possibility of her child being restored into her care within an identified time frame, consistent with a position adopted by DoCJ some months earlier, before she was hospitalised. That argument was not presented because of a combination of circumstances over which she had little if any control, and which at the time prevented that argument from being made on her behalf. The ensuing circumstances have been tragic, and damagingly cruel to both the mother and her son.

[25] Whilst time has passed since the orders were made by the Children’s Court, and the clock cannot be wound back on the events complained of by the appellant, a question to be considered, amongst many others, is whether, in the paramount best interests of the child, co-incidental with the interests of justice, the circumstances justify a material re-set in favour of restoration of the child to the appellant, notwithstanding the content of some sceptically critical opinions that have been expressed by parenting capacity assessors engaged by the Secretary, who have argued to the contrary.”

91. In these introductory paragraphs of his judgment, the judge clearly recognised that the interests of the child were paramount. He reiterated the point at [69(1)] but noted (at [69](1) and (2)):

“[69] (1) The safety, welfare and wellbeing of the child is the paramount consideration when making decisions within the scheme of the legislation: s 9(1) of the Care Act;

(2) The paramount best interests of the child must necessarily be linked to the fundamental procedural requirement that a parent at risk of having a child removed from their care must be afforded procedural fairness in the consideration of whether or not parental responsibility should be allocated to someone other than that parent: D v C; Re B (No 2) [2018] NSWCA 310, at [43], [91]-[92];”

92. The linking of the paramount best interests of the child with the requirement to provide procedural fairness to the mother is addressed below in dealing with paragraphs 3 and 4 of the grounds of review.

93. The Secretary submitted that his Honour’s reasons could not be reconciled with relevant legal principles and then addressed his Honour’s findings. The Secretary submitted:

“19. But ground 4 provides an alternative basis upon which his Honour’s decision may be impugned. Judge Levy evidently considered the question of whether the first defendant was denied procedural fairness in the Children’s Court to be material to his Honour’s decision. Contrary to paragraph [69] of the WSFD, that was a question of law. If Judge Levy wrongly answered that question, his Honour made an error of law on the face of the record on a matter material to his Honour’s decision.”

94. This submission, if correct, would demonstrate an error of fact, but not an error of law.

95. If these matters stood alone, then it could be found that, by focusing on the wrong the judge found had been done to the mother, rather than on whether there was a realistic possibility of restoration of the child to her care having regard to his best interests and the paramount need for his safety, welfare and wellbeing, his Honour erred in law. But for the reasons in relation to ground 1 these matters do not stand alone.

96. The judge did not make a final order allocating parental responsibility to the mother. He has not determined whether restoration of the child to the mother would expose the child to an unacceptable risk of psychological or other harm. The statutory context in which the judge made his decision is that the safety, welfare and wellbeing of the child is paramount (which the judge acknowledged). Another part of the relevant context of the judge’s decision are the permanent placement principles in s 10A of the Care Act. Section 10A provides:

“10A Permanent placement principles

(1)    In this Act—

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.

(2) Subject to the objects in section 8 and the principles in section 9, a child or young person who needs permanent placement is to be placed in accordance with the permanent placement principles.

(3)    The permanent placement principles 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,

…”

97. The judge’s reasons must be understood against what must have been, or should have been, common ground at the hearing in the District Court, namely, that the first preference for the long term placement of the child following the child’s removal from the care of his mother is that he be restored to the care of his mother, if that would provide a safe, nurturing, stable and secure environment for the child, and is practicable and in his best interests.

98. Given the primacy of that placement principle, the judge did not err in law in focusing on the possibility that the mother would be capable of providing a safe, nurturing, stable and secure environment for the child within a reasonable period. The judge was not called on, at the time he gave his judgment, to decide whether it was in the best interests of the child that he be restored to the care of his mother and removed from the care of his grandmother. Once the preliminary nature of the judge’s reasons and orders are appreciated, this ground of appeal falls away.

Grounds 3 and 4

99. These grounds are quoted at [9] above.

100. The primary judge held that, at the time of the hearing in the Children’s Court on 4 March 2019, the mother had reasonable evidence and arguments to support a conclusion that, at that time, there were realistic prospects for her child to be restored to her within a reasonable time (at [611]). However, his Honour held that, as a result of what his Honour found to have been a denial of procedural fairness in the Children’s Court, she entered a downward spiral driven by anger and at the time of the hearing before his Honour there were not reasonable prospects of restoration of the child to her parental care. The judge said:

“[613] In light of those further downward spiralling events within the appellant’s circumstances since the ex parte final orders made on 4 March 2019, and in view of the precarious position in which she now finds herself, personally, healthwise and in her unsatisfactory neighbourhood accommodation, where she has unresolved anger, where she needs intensive therapy to deal with her alcohol issues and her accommodation-related issues, it is indisputable that at present, without the sustained implementation of material changes, there is no realistic prospect of the child being restored into her parental care.

[614] That position must necessarily remain so for so long as the appellant’s anger remains unmanageable, including where there is a risk that she may relapse into inappropriate use of alcohol, and where her unsuitable housing situation remains unchanged. The appellant has much work ahead of her in her endeavours to overcome those problems. She needs skilled assistance to enable her to do so. She has limited time in which to do so if she is to regain the parental care of her son.”

101. The judge then addressed the possibility of a future restoration and said:

“[615] I now turn to the consideration of the ultimate question that calls for decision in the appeal, namely, of whether there is at present a realistic possibility of a future restoration to the appellant.

[616] That question does not arise in isolation. Instead, it arises in the context of systemic historical failure to provide the appellant with the procedurally fair opportunity to pursue a case that was arguable in March 2019, where afterwards, that opportunity was overwhelmed and thwarted up to this point by that systemic failure, which I find to be a root cause sentinel event.

[617] In those circumstances it would be manifestly unjust and wrong to simply focus on the appellant’s present precarious position and thereby reject outright her claim for a restoration of her child based on such a superficial analysis. Such an outcome would not be in the paramount best interest of her son who is the subject of these proceedings: s 9(1) of the Care Act.

[618] In the explanatory circumstances that have been outlined in these reasons, not only the interests of the mother, but also of the child, require a re-set of the position in light of the events of 4 March 2019 whereby the mother was denied procedural fairness.

[619] As at 4 March 2019, according to the cited descriptions of the practitioners who were treating the appellant, her life was in the process of undergoing a transformative turn-around or re-set. Unfortunately, the course of that re-set was derailed by the destabilising events of 4 March 2019, and the dystopic course the appellant’s life has taken since that time in a litigation framework that has had causative ill-effects following the decision of the Children’s Court, made in her absence, where she was denied procedural fairness, and where her lawyer who was retained to advocate for her, was given leave to withdraw, thereby leaving the appellant without a voice in the proceedings.

[620] After the orders made in the Children’s Court on 4 March 2019, a material reversal occurred in the appellant’s situation, where, beforehand, she had a reasonable and available argument in favour of seeking a finding that there was a realistic possibility of restoration, after that date her life’s circumstances became more chaotic. She must now face the task of re-establishing her credentials as a suitable mother.

[621] It is plainly evident that in taking on that task with a palpable sense of outrage, the appellant has not done so out of reasons of personal vanity, but rather, out of motherly love for her son, where that love is mutual, and because she sees the fact of his removal from her care as some kind of generational recrudescence of the experiences of the Stolen Generation.

[622] In considering the psychological implications of those circumstances, taking into account the regrettable Stolen Generation history that has befallen Aboriginal people in this country, it cannot reasonably be said that the appellant’s view is fanciful or unfounded. To date, she has faced the task of pursuing this appeal fearlessly, but unfortunately without the benefit of legal representation.

[623] In my opinion, the appellant’s circumstances, in terms of who should have the parental responsibility for caring for the child, requires that there should be a material re-set of the arrangements to enable her to regain the position that the appellant had, but which became denied to her on 4 March 2019. To do otherwise would unfairly add another layer of injustice to the appellant’s already beleaguered circumstances.”

102. The judge explained that the proceedings in the Children’s Court led to a downward spiral in the mother’s mental health and her capacity to reassume the role of parent for her child. The orders of the Children’s Court had been made in her absence in circumstances where the judge found she was not at fault in not being in court. Whether the Children’s Court was at fault was immaterial, given that the appeal to the District Court was an appeal de novo. But if, as the judge found, the fact that the orders were made in the mother’s absence contributed to a decline in her mental health and her capacity to care for her child, that fact was not irrelevant.

103. The judge’s finding that the Children’s Court denied the mother procedural fairness was irrelevant to his conclusions, but it was not on that account, an error of law for which certiorari would lie. It was not a consideration he was forbidden from taking into account.

Conclusion

104. For these reasons, if the reasons of the judge form part of the record, they do not disclose an error of law.

105. Accordingly, I propose that the summons be dismissed with costs.

106. BEECH-JONES JA: The background and statutory context to this matter is set out in the judgment of White JA.

“Reasons for … ultimate determination”

107. The first and potentially determinative issue is whether the reasons of the primary judge published on 21 September 2021 form part of the “record” for the purposes of considering whether certiorari should be granted in respect of the orders made by his Honour on that day. In light of Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58 (“Craig”), a determination of that issue turns on whether those reasons are the reasons for the Court’s “ultimate determination” as referred to in s 69(4) of the Supreme Court Act 1970 (NSW). In particular the issue to be decided is whether the District Court made the, or an, “ultimate determination” on 21 September 2021?

108. In his judgement, White JA sets out the passages from the judgment of Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 (“Bond”) and Hot Holdings Pty LtdvCreasy (1996) 185 CLR 149; [1996] HCA 44 (“Hot Holdings”) which appear to have informed the legislature’s intention when amending s 69 of the Supreme Court Act following Craig. The passage from Hot Holdings cited by White JA at [46] confirms that the concept of an ultimate determination is narrower than the class of decisions that are amenable to certiorari, that is, it excludes decisions made at a “preliminary or recommendatory stage”. To similar effect, the passages from Bond cited by White JA at [52] to [53] confirm that Mason CJ’s conception of an ultimate decision made under statute is narrower than the concept of a decision “made under an enactment” in that the latter also includes a finding or ruling provided for or required by a statute to be made in the course of making an ultimate decision (or as an “essential preliminary” to such a decision: Bond at 339 and 340). However, a mere finding or ruling not required or provided for by statute answers neither description (Bond at 340 to 341).

107. Even within this relatively narrow conception of what is meant by “ultimate determination”, I nevertheless agree with White JA (at [67] to [68]) that the phrase “ultimate determination of a court or tribunal in any proceeding” is a broader concept than the ultimate determination “of” a proceeding (citing Wright J in Commissioner of Police v Attorney General for New South Wales [2022] NSWSC 595 at [233] to [235]). Various matters can be finally determined within the one proceeding.

108. The statutory scheme surrounding s 83 of the Children and Young Persons (Care and Protection) Act 1998 (the “Care Act”) was addressed in D v C; Re B (No 2) [2018] NSWCA 310 (“D v C”) at [17] to [34]. In D v C Basten JA found that the sub-sections of s 83 operate in a progression with each step proceeding from a preceding step (at [26]) and concluded (at [29]) that:

“The internal structure of s 83 suggests that the concept of a ‘final care order’ in s 83(7) is restricted to an order made where the Secretary has applied for the removal of a child from parental care.”

111. It is useful to set out the orders made by the primary judge on 21 September 2022:

“(1) Pursuant to s 83(2) and s 83(8A) of the Children and Young Persons (Care and Protection) Act 1998 (NSW), the Court finds that there is a realistic possibility of restoration of the child the subject of the appeal into the parental care and responsibility of his mother, the appellant in these proceedings;

(2)   Within 5 weeks of today’s date, the Secretary, Department of Communities and Justice, in consultation with the appellant, is to prepare an Amended Care Plan that reflects these reasons for decision;

(3)   The appeal is allowed, subject to Order (4) below;

(4)   Pending the making of final orders, Orders (1) and (2) of the orders made by the Children’s Court at Port Kembla on 4 March 2019 are to remain in place until the further order of this Court, pending consideration and approval of the Amended Care Plan the subject of Order (2) above;

(5)   Pending the making of final orders, the third respondent maternal grandmother is required to exercise her parental responsibilities in respect of the child the subject of the appeal in conformity with these reasons;

(6)    The appellant is to make appropriate arrangements for Exhibit ‘8’ to be returned to her;

(7)   The proceedings are listed for further hearing at 10.00am on Friday 5 November 2021 for consideration of approval of an Amended Care Plan, a copy of which is to be provided to the Associate on or before Monday 31 October 2021;

(8)   Liberty to the parties to apply on reasonable notice if any further or other orders are required.”

112. Order 1 appears to record a finding of the primary judge made by reference to s 83(5) of the Care Act in that the District Court, sitting in the place of the Children’s Court, determined not to accept the Secretary’s assessment that there was not a realistic possibility of restoration within a reasonable period. Order 2 appears to be a direction under s 83(6) of the Care Act. Both orders 1 and 2 are amenable to certiorari. However, given the sequential operation of s 83, neither of them amounts to an ultimate determination by the District Court in any proceedings. Orders 3 and 4 do not appear to be referable to any part of the Care Act. Section 91(4) of the Care Act confers on the District Court the functions and discretions that the Children’s Court is conferred under Chapters 5 and 6 of the Care Act. None of those functions include making orders like orders 3 and 4. Section 91(5) confers on the District Court the power to “confirm, vary or set aside” the decision of the Children’s Court. Orders 3 and 4 neither confirm, vary or set aside the Children’s Court orders.

113. Order 5 made on 21 September 2021 purports to direct KH’s grandmother about how to exercise her parental responsibilities. No argument in this Court was directed to the source of the power to make that direction. Assuming such a power existed, the order is nevertheless unfortunate in that any exercise of parental responsibilities is hard enough without having to interpret and apply a 195-page decision in doing so. Orders 6, 7 and 8 do not advance the analysis.

114. Considered individually and collectively it is clear that the orders made on 21 September 2021 and the reasons that support those orders represent only the partial completion by the primary judge of the obligation imposed on his Honour by s 83 of the Care Act. The proceedings in the District Court have not proceeded past the “step” contemplated by s 83(6) of the Care Act (D v C at [26]). The remaining and critical step is to make a “final care order” within the meaning of s 62 of the Care Act but only after first observing the requirements of s 83(7) including the approval of a “permanency plan”. This has not yet occurred.

115. It follows that the primary judge’s reasons published on 21 September 2021 do not form part of the record for the purpose of considering whether or not to make an order in the nature of certiorari in relation to the orders made on that day. As all of the alleged errors of law contended for by the Secretary arise from those reasons, it follows that I agree with White JA that the summons must be dismissed. I would add that, in the event that the primary judge does make a final care order in relation to KH, a question would then arise as to whether the reasons published on 21 September 2021 would be part of the reasons for that “ultimate determination” (see Bond at 338 to 340 per Mason CJ).

The Grounds for Certiorari

116. Like White JA I will address the Secretary’s grounds for seeking certiorari on the assumption that I am wrong in concluding that the primary judge’s reasons do not form part of the record.

117. I agree with White JA’s reasons for rejecting grounds 1 and 2.

118. Grounds 3 and 4 are as follows:

“3.    Judge Levy made an error of law on the face of the record by taking into account the irrelevant consideration of whether the first defendant was denied procedural fairness by the Children’s Court.

4.    Judge Levy made an error of law on the face of the record by finding that the first defendant was denied procedural fairness by the Children’s Court.”

119. Throughout his reasons, the primary judge referred to the effects of a breach of procedural fairness on the part of the Children’s Court on the mother. The breach was described as having occurred when the mother was unable to attend the Children’s Court on 4 March 2019 because, according to the primary judge, she had woken late on the morning of the hearing due to the side-effects of her prescription medication, which she was required to take after being admitted as an involuntary patient to a mental health unit. Her legal representative withdrew in her absence. At some point prior to that occurring, the Secretary’s representatives had circulated a document amongst the parties which proposed an order that KH’s grandmother be given guardianship of KH. It is not clear whether, in describing the events as involving a denial to the mother of procedural fairness, the primary judge was purporting to attribute fault to the Children’s Court. In any event it does not matter because the significance of the factual events as found by the primary judge is that, through no fault related to the proceedings of her own, KH’s mother did not obtain a proper opportunity to be heard and that course of events significantly affected her. Although it is not the function of the District Court to make findings suggesting error on the part of the Children’s Court, in this case his Honour’s findings were relevant to explaining KH’s predicament and its effect upon her. This is sufficient to dispose of ground 4.

120. However, I understand ground 3 is directed to what reliance the primary judge placed on the findings that the mother was denied procedural fairness. That reliance is exemplified by the following passages from that part of his Honours’ reasons which is entitled “Possibility of Future Restoration”:

“[623] In my opinion, the appellant’s circumstances, in terms of who should have the parental responsibility for caring for the child, requires that there should be a material re-set of the arrangements to enable her to regain the position that the appellant had, but which became denied to her on 4 March 2019. To do otherwise would unfairly add another layer of injustice to the appellant’s already beleaguered circumstances.”

[624] It is significant to note that the appellant’s state of personal chaos has continued to subsist since the appealed orders were made on 4 March 2019, that is, over a damaging period of more than 2 years. In those circumstances, I consider that justice requires that the appellant be afforded the maximum period allowed by statute to demonstrate her parental capacity, namely 24 months. I consider that period to be reasonable in the circumstances, where in the meantime, the child is in a stable and safe placement with his maternal grandmother.

[625] Mr Di Martino considered a reasonable period for the appellant to achieve the goal of readiness for restoration to be between 6 and 12 months, with therapy. That opinion is suitably qualified. The evidence of Mr Di Martino persuades me that if the necessary treatment and supports are in place for the appellant, she could realistically achieve the goal of restoration within a reasonable time: s 83(8A) of the Care Act.

[626] Time will tell as to whether this would occur within his predicted time range of 6 to 12 months, or a little later. Some flexibility is required. Mr Di Martino’s evidence persuades me that the appellant should be given a little more leeway – the maximum statutory leeway, namely 24 months, to prove herself considering the deleterious effects of the last two and-a-half years since her position became radically changed through no material fault on her part.

[627] The deleterious consequences of the events of 4 March 2019 indicate that she is entitled to that further time and consideration, if it proves to be necessary, in order to effectively achieve a re-set. If circumstances later justify a shortening of the period of 24 months, this can be the subject of an application to vary the orders.

……

[638] The tragic irony embedded in those events is the sentinel misstatement of the factual background as submitted to the presiding magistrate by the Secretary's representative, where, in something of an advocate’s flourish, he conveyed an incorrect factual portrayal to the effect that the appellant’s commitment to her case was poor, where that misstatement was in turn influential in the case being disposed of peremptorily, on the papers, influenced by that misapprehension, in the appellant's absence, thus contributing greatly to the appellant’s present precarious situation. This has never been acknowledged.

[639] In light of those circumstances, on the issue of whether there is a realistic possibility of restoration within a reasonable period, subject to interim consideration of questions of child safety, wellness and well-being being met whilst the child is for the moment adequately cared for by his grandmother, the appellant is nevertheless entitled to every remedial systemic consideration and support that can be made available to her whilst she seeks the implementation of a re-set of the wrong she has had to endure.” (emphasis added)

121. These paragraphs contain a mixture of the relevant and irrelevant. Paragraph 625 involves a correct focus on what is required by ss 83(5) and 83(8A), namely, whether or not to accept the Secretary’s assessment that there was not a realistic possibility of restoration within a reasonable period, being a period that did not exceed 24 months. However, the emphasised passages involve the primary judge taking into account the denial of procedural fairness to the applicant by the Children’s Court in a manner that reveals a failure to apply the correct test. Those passages involve the Court treating the making of a favourable finding under s 83(5) as a means of making redress for the wrong that was found to have been occasioned to the mother by the Children’s Court. Hence, his Honour referred to what the mother is “entitled” to, the “re-set[ting] of the wrong [the mother] has had to endure” (at [639]), and that there “should be a material re-set of the arrangements to enable [the mother] to regain the position that [she] had, but which became denied to her” (at [623]). This is the language of legal rights, entitlements and redress. That is not the assessment required by s 83 which is directed to a specific factual assessment about the prospects of restoration in the relative immediate future. As already stated, that assessment is informed by a consideration of past events and that may include past injustices but only to the extent that they bear on the factual assessment required by s 83(5).

122. Had his Honour’s reasons formed part of the record then I would have upheld ground 3, set aside the orders of 21 September 2021 and remitted the matter to the District Court for further hearing.

Relief

123. I agree with the orders proposed by White JA.

124. SIMPSON AJA: I have had the opportunity of reading in draft the judgments of White and Beech-Jones JJA. I agree with their Honours that:

1. the “orders” made on 21 September 2021 in the District Court do not, for the purposes of subss (3) and (4) of s 69 of the Supreme Court Act 1970 (NSW), constitute an “ultimate determination” of the court in the proceeding before it and, therefore,

2. the reasons of the primary judge are not available for the purpose of determining whether error of law on the face of the record has been established.

As the relevant factual background has been sufficiently detailed in the other judgments, I can state the reasons for my concurrence succinctly.

125. The initial “proceeding” in the Children’s Court was an application pursuant to s 61 of the Children & Young Persons (Care and Protection) Act 1998 (NSW) (“the Care & Protection Act”) for a “care order”, relevantly defined in s 60 as:

“An order under [Chapter 5 of the Care & Protection Act] for or with respect to the care and protection of a child or young person ….”

126. The application to the Children’s Court was not in the materials provided to this Court. However, it is apparent that the orders sought included an order under s 79(1) for the allocation of all or some aspects of parental responsibility to persons other than KH, the mother of the child in question. The orders made by the Children’s Court on 4 March 2019 allocated all aspects of parental responsibility, other than responsibility for contact, to the child’s maternal grandmother, KH’s mother. Parental responsibility for contact was allocated to the Minister. Having regard to their terms, those orders are properly characterised as “final orders” (see s 62), and, unless varied on appeal, an “ultimate determination” of the proceeding.

127. The “proceeding” before the District Court, the subject of the present application, was an appeal by KH pursuant to s 91(1) of the Care & Protection Act, against those orders. By s 91(4), in addition to any other functions and discretions possessed by the District Court, for the purpose of hearing and disposing of the appeal, the District Court had all the relevant functions and discretions of the Children’s Court. By subs (5) those powers and discretions included the power to “confirm, vary, or set aside” the decision of the Children’s Court.

128. To return to the terms of s 69 of the Supreme Court Act, the question for “ultimate determination” by the District Court was whether, pursuant to s 79(1), an order or orders allocating all or some aspects of parental responsibility for the child should be made.

129. After a lengthy hearing and in a lengthy judgment, the primary judge determined as follows:

“(1) Pursuant to s 83(2) and s 83(8A) of the Children and Young Persons (Care and Protection) Act 1998 (NSW), the Court finds that there is a realistic possibility of restoration of the child the subject of the appeal into the parental care and responsibility of his mother, the appellant in these proceedings;

(2)   Within 5 weeks of today’s date, the Secretary, Department of Communities and Justice, in consultation with the appellant, is to prepare an Amended Care Plan that reflects these reasons for decision;

(3)   The appeal is allowed, subject to Order (4) below;

(4)   Pending the making of final orders, Orders (1) and (2) of the orders made by the Children’s Court at Port Kembla on 4 March 2019 are to remain in place until the further order of this Court, pending consideration and approval of the Amended Care Plan the subject of Order (2) above;

(5)   Pending the making of final orders, the third respondent maternal grandmother is required to exercise her parental responsibility in respect of the child the subject of the appeal in conformity with these reasons;

(6)   The appellant is to make appropriate arrangements for Exhibit ‘8’ to be returned to her;

(7)   The proceedings are listed for further hearing at 10.00 am on Friday 5 November 2021 for consideration of approval of an Amended Care Plan, a copy of which is to be provided to the Associate on or before Monday 31 October 2021;

(8)   Liberty to the parties to apply on reasonable notice if any further or other orders are required.”

130. I use the language “determined as follows”, because, as a general proposition, the determinations could not be characterised as “orders”. I agree with the characterisation of those determinations proposed by Beech-Jones JA at [112] and [113]. What they had in common is that none could remotely come within the description “ultimate determination” of the District Court proceeding. So much is abundantly clear from the wording of paragraphs (4) and (5) of the determinations, each of which is predicated on a future “making of final orders”. The determinations are, at most, interim findings and directions as to the future progress of the appeal.

131. That being the case, the reasons of the primary judge are not available to the applicant to establish error of law. As Beech-Jones JA has explained, all asserted errors of law are said to derive from the reasons. The asserted errors of law cannot, therefore, be established. For those reasons I agree that the summons must be dismissed.

132. I can deal briefly with the subsidiary, and hypothetical, question, whether any of the errors of law asserted by the Secretary are established in the event that the reasons are available for the purpose. I agree, for the reasons given by White JA and Beech-Jones JA, that grounds 1, 2 and 4 would not be established. I agree with Beech-Jones JA, for the reasons his Honour gives, that ground 3 would be established, and that, accordingly, the matter would be remitted to the District Court for rehearing.

133. I agree with the orders proposed by White JA.

**********

Amendments

03 November 2022 - Para [31] A M Williams corrected to read A N Williams

28 April 2023 - "Appellant" changed to "Applicant" where appropriate

Decision last updated: 28 April 2023