Shapkin v Secretary, Department of Communities and Justice

The Supreme Court of New South Wales, constituted by Leeming and Kirk JJA and Griffiths AJA, considered an appeal by Mr Shapkin concerning the dismissal of his application to appear in proceedings in the Children’s Court, and the subsequent dismissal of his appeal to the District Court. The central dispute revolved around the interpretation and application of section 98(3) of the *Children and Young Persons (Care and Protection) Act 1998* (NSW), which governs the circumstances under which a person may be granted leave to appear in Children’s Court proceedings.

The primary legal issues before the Supreme Court were whether the District Court had erred in law on the face of its record by dismissing Mr Shapkin’s appeal, and whether section 98(3) of the Act required the District Court to grant leave to appear simply upon a finding of genuine concern for the child’s safety, welfare, and well-being, or if a further discretion remained. The Court also addressed a perceived conflict in existing Supreme Court decisions regarding the approach to section 98(3) and whether relief should be withheld for discretionary reasons.

The Court reasoned that the District Court had erred in law by failing to properly consider the scope of its appellate jurisdiction and the correct interpretation of section 98(3). It held that the provision, when read in its full context, did not confer an unfettered discretion on the Children’s Court to refuse leave to appear once the threshold of genuine concern for the child’s welfare was met. The Supreme Court found that the District Court had misconstrued the nature of the discretion, leading to an error on the face of the record. Consequently, the Supreme Court set aside the District Court’s order dismissing Mr Shapkin’s appeal, leaving his appeal to the District Court to be heard and determined according to law. No order was made as to costs.