Shapkin v Secretary, Department of Communities and Justice

[2025] NSWCA 71

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Shapkin v Secretary, Department of Communities and Justice [2025] NSWCA 71

Hearing dates:

2 April 2025

Date of orders:

2 April 2025

Decision date:

14 April 2025

Before:

Leeming JA; Kirk JA; Griffiths AJA

Decision:

1. Dismiss Mr Shapkin’s application that the independent legal representative for the son not be heard.

2. Grant leave to the independent legal representative to intervene in these proceedings.

Catchwords:

PROCEDURE – judicial review of District Court’s dismissal of interlocutory appeal from Children’s Court – whether independent legal representative of child entitled to be heard – where divergence in submissions between Secretary and independent legal representative – where divergence of principle on face of authorities – where Court would be assisted by submissions from independent legal representative on questions of law – leave granted to be joined as intervener

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 61, 91, 98, 99, 105

Cases Cited:

In re a Child [2022] NSWSC 671

Texts Cited:

Practice Note SC CA 1

Category:

Procedural rulings

Parties:

Vasiliy Shapkin (Applicant)
Secretary, Department of Communities and Justice (First Respondent)
The mother (Second Respondent)
The child (Third Respondent)
District Court of New South Wales (Fourth Respondent)

Representation:

Counsel:
Applicant in person
B J Dean (First Respondent)
M Higgins (Independent Legal Representative for the child)

Solicitors:
Crown Solicitor’s Office (First Respondent)
Willoughby Law (Third Respondent)

File Number(s):

2024/478206

Publication restriction:

In accordance with s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW), this judgment does not disclose the name of the child.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

10 September 2024

Before:

Olsson SC DCJ

File Number(s):

2024/00229421

JUDGMENT

1. THE COURT: By amended summons filed on 6 February 2025, Mr Vasiliy Shapkin seeks an order quashing the decision of the District Court constituted by her Honour Judge Olsson SC DCJ dismissing his appeal from a decision of the Children’s Court dismissing his application under s 98(3) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) to appear in pending proceedings in the Children’s Court commenced by the Secretary under s 61 of that Act, seeking orders that, relevantly, a child be placed in the care of the Minister. The proceedings now concern two daughters and one son, who are now aged 10, 6 and 3 respectively, none of whom can be named or identified by reason of s 105 of the Act. The second respondent is the mother of all three children. Mr Shapkin is the biological father of none of the children. At the time the Children’s Court dismissed Mr Shapkin’s application, the proceedings involving the son were consolidated with proceedings involving the daughters. Mr Shapkin’s application relates only to the son. Pursuant to an interim order made on 16 February 2024, the son has been placed under the parental responsibility of the Minister. A final hearing of the Secretary’s application in the Children’s Court has repeatedly been adjourned pending the resolution of Mr Shapkin’s application.

2. Mr Shapkin’s amended summons was listed for hearing on 2 April 2024. That hearing could not proceed, because of a late tender of some documents by the respondents, in response to which Mr Shapkin sought and was granted additional time. However, before that occurred, Mr Shapkin had also submitted that the independent legal representative for the child lacked standing to be heard. The Court heard argument on the submission, and ruled on it then and there, indicating that reasons would be delivered at a later time but that all members of the Court were of the view that the independent legal representative should be heard, either as an intervener or an amicus. These are our reasons for that ruling.

3. The background may be stated concisely. Mr Shapkin’s summons seeking judicial review was filed in this Court on 10 December 2024. It did not join the mother or the child or the District Court. Nor did it seek review for error of law on the face of the record. It was amended on 6 February 2025, joining the son and seeking to set aside the District Court’s decision based on error of law on the face of the record in addition to jurisdictional error.

4. A notice of appearance was thereafter filed on behalf of “the son/independent legal representative”, as were submissions.

5. The issue giving rise to this interlocutory litigation arises from s 98 of the Act, which provides:

98 Right of appearance

(1) In any proceedings with respect to a child or young person—

(a) the child or young person and each person having parental responsibility for the child or young person, and

(b) the Secretary, and

(c) the Minister,

may appear in person or be legally represented or, by leave of the Children’s Court, be represented by an agent, and may examine and cross-examine witnesses on matters relevant to the proceedings.

(2) However, if the Children’s Court is of the opinion that a party to the proceedings who seeks to appear in person is not capable of adequately representing himself or herself, it may require the party to be legally represented.

(2A) If the Children’s Court is of the opinion that a party to the proceedings is incapable of giving proper instructions to a legal representative, the Children’s Court may appoint a guardian ad litem for the person under section 100 or 101 (as the case may require).

(3) In any proceedings with respect to a child or young person, any other person who, in the opinion of the Children’s Court, has a genuine concern for the safety, welfare and well-being of the child or young person may, by leave of the Children’s Court, appear in person in the proceedings, or be legally represented, or be represented by an agent, and may examine and cross-examine witnesses on matters relevant to the proceedings.

6. Although Mr Shapkin at one stage had an intimate relationship with the mother, he is not the biological father of the son. Mr Shapkin’s application was made under s 98(3). In the District Court, Mr Shapkin had apparently claimed that he was the psychological parent of the son. That claim was rejected.

7. Section 91(2) of the Act provides that the appeal to the District Court was to be by way of a new hearing, at which fresh evidence could be given. It seems that that occurred. It is not disputed that it fell to the District Court to exercise the discretion under s 98(3) afresh.

8. The most recent decision of the Supreme Court on s 98(3) is the judgment of Hammerschlag CJ in Eq in In re a Child [2022] NSWSC 671. It reveals a divergence in authorities on that provision. It states at [8]-[11]:

8 The section has been described as involving a two-step process involving first a determination of whether the applicant has the genuine concern described, and second a decision whether or not to exercise the discretion to grant leave: EC v Secretary, NSW Department of Family and Community Services [2019] NSWSC 226 at [16].

9 I respectfully consider this view to be incorrect and I do not propose to follow it.

10 The section requires the Court to consider only whether leave should be granted, but prescribes that leave cannot be granted unless the Court forms the opinion that the applicant has a genuine concern for the safety, welfare and well-being of the child or young person. It would be an error to consider separately from the overall question whether leave should be granted, whether a genuine concern has been established. The facts and circumstances pertinent to the expressed concern will almost inevitably be relevant to the exercise of the discretion. The overall facts before the Court, including the relationship of the claimant to the child and the nature and gravity of the concern, should be considered as a whole. In the process of determining whether the occasion is appropriate for the grant of leave, the Court should form (or not form) the opinion as to genuine concern.

11 To exercise the discretion in favour of the grant of leave, the Court must actually form an opinion that:

1. the person has a concern, and that concern is one which is for the safety, welfare and well-being of the child; and

2. the concern is genuine, that is:

(i) real, meaning not artificial or contrived and not trivial, and

(ii) honestly held.

9. In dismissing Mr Shapkin’s appeal, the District Court judge quoted from that decision, addressed the evidence which had been adduced in a hearing which had apparently gone for most of a day, and said:

I am prepared to accept that Mr Shapkin does have a genuine concern for [the son’s] safety, welfare and wellbeing, but the balance of the evidence weighs against him as the psychological father. That label must come from the child’s experience and the context of the mother’s past and future plans and wishes. I fail to see how a person who has had so little involvement in the life of the child, coupled with a denial that he is a biological parent of the child, could ever satisfy the test that he would be the psychological parent.

10. Mr Shapkin contends, that (perhaps reflective of the way in which the argument had been advanced) on a fair reading of the reasons, the rejection of Mr Shapkin’s claim that he was a psychological parent was treated by the District Court as dispositive of the appeal. No separate reasons were given dismissing his appeal.

11. Mr Shapkin supplied short submissions in advance of the hearing relying on what had been said by Hammerschlag CJ in Eq, and contending that it was an error separately to consider whether the applicant had a genuine concern from the question whether leave should be granted. He also maintained that there was a misapplication of the statutory test in determining the application merely on the basis of whether he was a psychological parent, when s 98(3) permits “any [other] person” to be granted leave to appear.

12. In written submissions in response, the Secretary conceded error. The Secretary maintained that Mr Shapkin did not have a genuine concern within the meaning of s 98(3), and should not be granted leave under that section, but accepted that “to the extent that Judge Olsson SC required the applicant to satisfy a “test” that he would be a “psychological parent” to [the son], her Honour appears to have imposed upon him a higher bar for a grant of leave than that which is required by s 98(3)”.

13. However, in his written submissions filed in advance of the hearing, the independent legal representative maintained that the District Court made no jurisdictional error or error of law on the face of the record, and invited this Court to exercise its discretion to withhold relief. The independent legal representative provided submissions on what Hammerschlag CJ in Eq had regarded as a divergence in approach to s 98.

14. Thus this was a case where the independent legal representative was advancing a materially different position from the Secretary, including on a point of general application as to the construction of s 98 where there is an extant divergence of authority at the level of the Supreme Court. Those circumstances are unusual.

15. That is the background for Mr Shapkin’s oral application that the independent legal representative lacked standing. He pointed to paragraph 43 of Practice Note SC CA 1, which provides:

In judicial review proceedings in relation to matters under the Children and Young Persons (Care and Protection) Act 1998 (NSW), an independent legal representative should not be joined as a party.

16. He also submitted that “technically” the independent legal representative had not been joined. As we understood it, this was a submission that his amended summons had joined the son as opposed to the independent legal representative. This was clarified as follows:

GRIFFITHS AJA: So your real complaint is not a standing complaint or a joinder complaint. It’s not quite a standing complaint. It’s that the independent legal representative has no right to make submissions on behalf of the child in this Court.

APPELLANT: Correct …

17. In response, the independent legal representative referred to s 99 of the Act, which gives rights to the independent legal representative in proceedings in the Children’s Court. But that is not of itself an answer to the question of the independent legal representative’s status in proceedings in the Court of Appeal. It is unnecessary to attempt to express any view on the effect of s 99 in order to resolve the current dispute.

18. We think that the position is resolved sufficiently for present purposes as follows.

19. First, ordinarily there is no need for separate representation of the child and the Secretary in proceedings in this Court seeking judicial review of the District Court or the Children’s Court. Such proceedings ordinarily involve one or more questions of law, as opposed to factual inquiries into the best interests of the child. Ordinarily the Secretary will be a sufficient contradictor in order to resolve all issues arising. That is reflected in the Practice Note.

20. The Practice Note is not, and does not reflect, an inflexible rule. The Court retains power in an appropriate case to frame orders so as to achieve the purpose of the rules and the practice notes, which is the fair and efficient administration of justice.

21. The present case is unusual. The Secretary originally conceded error, and the independent legal representative took a different approach, maintaining there was no error, as well as supplying submissions on what perceived to be a divergence in the existing authorities. We can well understand why Mr Shapkin is disappointed by the course the litigation has taken in this Court, for if this Court hears from the independent legal representative, he faces an active opponent to the course for which he contends. On the other hand, the question for this Court in the present case is broader than the limited dispute between Mr Shapkin and the Secretary, and extends to resolving the extant controversy on the construction of s 98. We think it is clear that this is a case where the Court will be benefited from the participation of the independent legal representative.

22. For those reasons, the Court indicated that it would hear from the independent legal representative. It is appropriate to formalise that position by making the following orders:

1. Dismiss Mr Shapkin’s application that the independent legal representative for the son not be heard.

2. Grant leave to the independent legal representative to intervene in these proceedings.

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Decision last updated: 14 April 2025