Secretary, Department of Communities and Justice v KH

The Secretary, Department of Communities and Justice (the appellant) appealed to the Court of Appeal of New South Wales against a decision of the primary judge concerning care proceedings. The proceedings involved the welfare of a child, and the appeal raised questions regarding the scope of judicial review and the application of child welfare principles.

The Court of Appeal was required to determine whether the primary judge’s reasons formed part of the "record" for the purposes of judicial review, and whether the primary judge had erred in law by misconstruing or failing to apply the requirement that there be a "realistic possibility of restoration within a reasonable period." Further issues included whether the primary judge had erred in focusing on the possibility of a parent providing a safe environment and whether the judge had taken into account irrelevant considerations regarding procedural fairness afforded to a parent.

The Court held that the primary judge's reasons did not form part of the record for the purposes of judicial review, as the primary judge's decision was a step towards an ultimate determination, not the ultimate determination itself. The Court rejected submissions that invited a merits review of the primary judgment, finding that the primary judge had not erred in applying the paramountcy principle of the child's best interests or in considering the possibility of a parent providing a safe environment. The Court also found that the primary judge had erred in the way he took into account whether a parent was denied procedural fairness.

The summons was dismissed with costs.