Y v The Secretary, Department of Communities and Justice (No 6)

[2021] NSWDC 392

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Y v The Secretary, Department of Communities and Justice (No 6) [2021] NSWDC 392

Hearing dates:

26, 27, 28, 29, 30 October 2020; 2, 3, 4, 5, 6, 13 November; 2, 10, 15, 18 December 2020; 11 January; 5, 9, 18 February; 19, 31 March; 9 April; 24, 25, 26, 27, 28 May; 1, 2, 3, 4, 7, 9, 10, 11 June; 2 and 16 July 2021

Date of orders:

13 August 2021

Decision date:

13 August 2021

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

See paragraph [955] for orders.

Catchwords:

CHILD CARE APPEAL – re-hearing of Children’s Court proceedings pursuant to s 91 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) – self-represented appellant father sought restoration of his child into his parental care following removal on account of his violent injurious behaviour – bizarre litigation conduct by appellant – finding of parental unfitness – appeal dismissed – orders of the Children’s Court confirmed; PRACTICE & PROCEDURE – disrespectful behaviour of appellant in Court – referral of the papers to the Attorney-General for consideration of appellant’s disrespectful behaviour in Court: s 200A of the District Court Act 1973 (NSW); COSTS – application by the Secretary, Department of Communities and Justice for substantial compensatory costs against the appellant pursuant to s 88 of the Children and Young Persons (Care and Protection) Act 1998 claiming exceptional circumstances – separate determination of that question is required after hearing the parties

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW), s 9, s 65, s 71, s 88, s 91, s 93, s 94, s 96, s 99, s 105

Civil Procedure Act 2005 (NSW), s 56, s 57, s 58

Court Security Act 2005 (NSW), s 9

Crimes Act 1900 (NSW), s 59

Crimes Administration of Sentence Act 1999 (NSW), s 82A

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

District Court Act 1973 (NSW), s 200A

Practice Note DC (Civil) No. 5

Uniform Civil Procedure Rules 2005, r 12.1

Cases Cited:

Angel v Hawkesbury Council [2008] NSWCA 130

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Blacktown City Council v Hocking [2008] NSWCA 144

Bradshaw v McEwans Pty Ltd (1952, unreported) (1951) 217 ALR 1

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Colt Children [2013] NSWChC 5

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Fox v Percy [2003] HCA 22; 214 CLR 118

Goode v Angland [2017] NSWCA 311

Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235

HG v The Queen [1999] HCA 2; (1999) 197 CLR 414

Johnson v Page [2007] Fam CA 1235

Jones v The Queen (1997) 191 CLR 439

Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19

M v M [1988] HCA 68; (1988)166 CLR 69

Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48

Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505

Paric v John Holland Constructions Pty Ltd [1985] HCA 58

Polsen v Harrison [2021] NSWCA 23

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

Re Kerry (No 2) [2012] NSWCA 127

State Authority of NSW v Earthline Constructions Pty Ltd (In liq) (1999) 73 ALJR 306

The Secretary of the Dept of Communities and Justice and Fiona Farmer [2019] NSWChC 5

Twynam Agricultural Group Pty Ltd v Williams [2012] NSWCA 326

Warren v Gittoes [2009] NSWCA 24

Y v The Secretary, Department of Communities and Justice [2020] NSWDC 674

Y v The Secretary, Department of Communities and Justice (No 2) [2020] NSWDC 762

Y v The Secretary, Department of Communities and Justice (No 3) [2021] NSWDC 19

Y v The Secretary, Department of Communities and Justice (No 4) [2021] NSWDC 81

Y v The Secretary, Department of Communities and Justice (No 5) [2021] NSWDC 117

Yarrabee Coal Company Pty Ltd & Anor v Lujans [2009] NSWCA 85

Category:

Principal judgment

Parties:

Y (Appellant father in person)
The Secretary, Department of Communities & Justice (First respondent)
M (Second respondent mother)

Representation:

Counsel:
Appellant in person
Mr M Anderson (First respondent)
No appearance for the second respondent mother M
Ms N Adams, Solicitor (Independent Legal Representative of the child the subject of the appeal to December 2020)
Mrs D Clark, Solicitor (Direct Legal Representative of the child from December 2020)

Solicitors:
The Crown Solicitor (First respondent)
Ms N Adams, Solicitor (Independent Legal Representative of the child the subject of the appeal to December 2020)
Mrs D Clark, Solicitor (Direct Legal Representative of the child from December 2020)

File Number(s):

2020/30525

Publication restriction:

Non-publication order imposing restriction on publication of names and identifying details other than litigation pseudonyms: s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW)

Judgment

Table of Contents

STRUCTURE OF THESE REASONS	[1] – [4]
PART A – Introduction, Issues, Summary of Outcome	[5] – [56]
Non-publication order	[6]
Nature and tone of the appeal and some difficulties that arose	[7] – [48]
Issues for determination in the appeal	[49]
Summary identifying the outcome of the appeal	[50] – [56]
PART B – Review and Consideration of Relevant Topics	[57] – [544]
Topics reviewed in these reasons	[58]
(1)   Dramatis personae	[59] – [61]
(2)   Method for transcript references	[62] – [67]
(3)   Interlocutory decisions and listing days	[68] – [81]
(4)   Documentary material for consideration	[82] – [87]
(5)   Serial applications for judicial recusal	[88]
(6)   The child’s family history	[89] – [97]
(7)   Factual basis for removal of the child	[98] – [118]
(8)   Investigation and documentation of the child’s injuries	[119] – [137]
(9)   Contemporaneous photographs of the child’s injuries	[138] – [145]
(10)   Child’s evidence of being assaulted by her father	[146] – [158]
(11)   Evidence relied upon by appellant as exculpatory	[159] – [207]
(12)   Appellant’s conviction for assaulting his daughter	[208] – [225]
(13)   Foster care arrangements following the child’s removal	[226] – [236]
(14)   Procedural history of the Children’s Court proceedings	[237] – [243]
(15)   Reasons for decision of the Children’s Court	[244] – [260]
(16)   Orders sought by the appellant	[261]
(17)   Appellant’s conduct of his appeal	[262] – [276]
(18)   The appellant’s disrespectful and disruptive behaviour	[277] – [292]
(19)   Threats made in Court by the appellant	[293] – [310]
(20)   Procedural delays due to appellant’s litigation conduct	[311] – [320]
(21)   Concern over impermissible recording of proceedings	[321] – [330]
(22)   Effect of the proceedings on the child	[331] – [340]
(23)   Pre-October 2020 procedural history	[341] – [351]
(24)   Post-October 2020 procedural history	[352] – [481]
(25)   Appellant’s unsuccessful attempt to discontinue	[482] – [488]
(26)   Appellant’s last appearance in Court on 7 June 2021	[489] – [498]
(27)   Call from the appellant on 8 June 2021	[499]
(28)   Appellant’s apparent unwellness on 9 June 2021	[500] – [510]
(29)   Appellant’s continuing absence after 7 June 2021	[511] – [516]
(30)   Receipt of submissions in appellant’s absence	[517] – [532]
(31)   Appellant’s email sent on 16 July 2021	[533] – [544]
PART C – Evidence Review	[545] – [812]
Summary of evidence review	[548]
Evidence of Ms Alicia Pigot – in the appeal	[549] – [553]
Evidence of Ms Natalie Elder – in the Children’s Court	[554] – [566]
Evidence of Dr Chloe Fletcher-Watson – in both proceedings	[567] – [583]
Evidence of Dr Adam Buckmaster – in the Children’s Court	[584] – [587]
Evidence of Mr Sanjeev Chikara – in the appeal	[588] – [594]
Evidence of Mrs Melissa Currie – in the appeal	[595] – [614]
Evidence of Mr Simon Steward – in the Children’s Court	[615] – [628]
Evidence of Mrs Rachana Gautman – in the Children’s Court	[629] – [633]
Evidence of Ms Louise Murphy – in the Children’s Court	[634] – [641]
Evidence of Mrs Barbara Power – in the Children’s Court	[642] – [666]
Evidence of Mrs Debra Grigg – in the Children’s Court	[667] – [673]
Evidence of Ms Rebecca James – in the appeal	[674] – [681]
Evidence of Ms Lauren Grant – in the appeal	[682] – [693]
Evidence of Ms Robyn Patience – in the appeal	[694] – [697]
Evidence of Mr Paul Witzerman – in the appeal	[698] – [710]
Evidence of Mr Charlie Gangemi – in the appeal	[711] – [714]
Evidence of Dr Damon Shorter – in the appeal	[715] – [716]
Evidence of the appellant – in both proceedings	[717] – [791]
Evidence of the mother – in the Children’s Court	[792] – [805]
Evidence of the mother’s new partner – in the Children’s Court	[806] – [812]
PART D – Submissions of the parties	[813] – [830]
Submissions on behalf of the Secretary	[814]
Submissions by the child’s DLR	[815] – [817]
Appellant’s failure to make submissions	[818] – [830]
PART E – Consideration of Issues for Determination	[831] – [952]
Consideration of Issue 1 – Abandonment of the appeal	[832] – [845]
Consideration of Issue 2 – Findings in protective proceedings	[846]
Consideration of Issue 3 – Establishment finding	[847] – [872]
Consideration of Issue 4 – Weight of the child’s wishes	[873] – [892]
Consideration of Issue 5 – Restoration	[893] – [908]
Consideration of Issue 6 – Amended care plan	[909] – [919]
Consideration of Issue 7 – Costs	[920] – [922]
Consideration of Issue 8 – Disrespectful behaviour in Court	[923] – [925]
A belated issue raised by the appellant’s email dated 12 August 2021	[926] – [952]
PART F – Disposition and Orders	[953] – [955]
Disposition	[954]
Orders	[955]

STRUCTURE OF THESE REASONS

1. On 16 July 2021 judgment was reserved in this long-running child care appeal. These reasons for decision are delivered in detail to record the outcome with relative urgency.

2. The urgency arises because the mental health of the subject child has been adversely affected by continuing uncertainty over the outcome of the proceedings. The background circumstances are that the child was taken into protective care following injuries inflicted upon her by the appellant father in the course of his unacceptable violent behaviour towards her.

3. In these proceedings the appellant’s dilatory, unhelpfully combative, provocative, at times bizarre, and later, avoidant litigation conduct, has resulted in unnecessary prolongation of the proceedings. This has had a harmful effect on the mental health of his child. In ordinary circumstances, absent the urgency for declaring the outcome, further time would have enabled the delivery of shorter reasons for decision.

4. Although the essential issues calling for decision in this case are within relatively narrow confines, the compendious materials that required consideration necessitated a structured approach to deal with the detail and the issues involved, as identified below.

PART A :   Introduction; non-publication order; nature and tone of the appellant’s conduct of the appeal and some difficulties that have arisen; transcript reference system; issues for determination; summary identifying the outcome of the appeal: See paragraphs [5] to [56] below.

PART B :   An extensive series of 31 identified topics of relevance are reviewed in these reasons, ranging from the dramatis personae, interlocutory decisions, documentary evidence, the appellant’s applications for judicial recusal, factual evidence concerning the child’s removal from the appellant’s care, the appellant’s explanatory evidence said to be of exculpatory import, and to the various procedural courses that the proceedings have taken: See paragraphs [57] to [544] below.

PART C :   Evidence overview and summaries of the relevant oral and documentary evidence: See paragraphs [545] to [812] below.

PART D :   Submissions: See paragraphs [813] to [830] below.

PART E :   Consideration and determination of the issues calling for decision: See paragraphs [831] to [952] below.

PART F :   Disposition, and orders: See paragraphs [953] to [955] below.

APPENDICES :   Appendix A – Transcript references to the appellant’s disrespectful remarks to the Court.

Appendix B – Redacted extract of transcript evidencing an aspect of the appellant’s bizarre litigation conduct.

PART A - INTRODUCTION, ISSUES, SUMMARY OF OUTCOME

5. Before identifying the issues calling for decision, and before identifying in summary form the outcome on those issues, it is appropriate to say something about the nature and the tone of the appellant’s conduct of the appeal, and some consequential difficulties that have arisen in the course of the proceedings due to that conduct, which unfortunately set the tone for the proceedings.

Non-publication order in child care appeal proceedings

6. A non-publication order has been made and remains in place pursuant to s 105 of the Children and Young Persons (Care and Protection) Act 1998 (“the Care Act”), prohibiting the publication of the name of the child the subject of this child care appeal. That order also prohibits the publication of any information or details of any other parties, witnesses or persons named in evidence, that would tend to identify the child.

Nature and tone of the appeal and some difficulties that arose

7. The appealed decision of the Children’s Court refused to restore to the self-represented appellant father the parental responsibility for his daughter. She was removed from his parental care following receipt of a mandatory child protection report. An ensuing investigation revealed that the appellant posed a risk of serious harm to the child, including in light of his history of violent and injurious behaviour towards her.

8. The appeal is brought as of right pursuant to s 91 of the Care Act. In this Court, as in the Children’s Court, the appellant has chosen to represent himself, with shambolic consequences.

9. During the hearing of the appeal, the appellant sought to convey the impression he was an experienced litigant, stating that he has appeared before some 20 judges in many jurisdictions: Transcript, 9 April 2021: T18.39.

10. Notwithstanding that impression, at times the appellant’s courtroom behaviour involved inappropriately disruptive and disrespectful elements. That conduct has unfortunately had an adverse impact on what should have otherwise been the smooth and more timely progress of the appeal.

11. In the course of the proceedings the appellant angrily expressed a vehement antipathy and disdain for lawyers. In that vein, with considerable grandiosity, he saw fit to make it clear to the Court that he despises the legal profession. In addressing the Court, he expressed those sentiments in the following terms:

“… with people of your profession. I despise – I deal with the cockroaches and lawyers in the same fashion. And to come to this kind of setting with self-serving people around, who act in their interests rather than the child’s interests, that is not in the best interest of the child.”

[Transcript, 15 December 2020, T376.38 – T376.41]

12. The appellant stated that although in the past he had sought legal assistance for these proceedings, ultimately he decided to represent himself. He stated that he has no faith in lawyers, and found the cost of engaging lawyers was significant, and unaffordable for him: Transcript, 27 October 2020: T11.4.

13. The appellant stated that he had consulted two lawyers for advice on procedural matters concerning this appeal: Transcript 9 April 2021: T10.35; Transcript, 24 May 2021: T30.34 – T30.37. The effect of those consultations appears not to have beneficially advanced his presentation of his litigation. Regrettably, he has remained self-represented.

14. In the course of the proceedings, where the appellant’s parental fitness was a central question in issue, remarkably, he proffered many gratuitously abusive, disparaging and disrespectful remarks to the Court. Those comments were often made in a terse manner. That behaviour also extended to him making threatening remarks.

15. It is appropriate to record the appellant’s disrespectful remarks to the Court. Transcript references to his disrespectful remarks to the Court, over 100 of them, which varied in egregiousness, appear in Appendix A to these reasons.

16. Initially, when the appellant’s disrespectful remarks emerged, he was told those remarks would be overlooked because it appeared that he was emotionally upset. Therefore, initially, a benign view was taken in the interests of focussing on the true issues in the case. However, at times those remarks escalated and continued defiantly, even after the appellant had been informed of the terms of s 200A of the District Court Act 1973 (NSW), concerning the potential consequences of disrespectful behaviour in Court.

17. Although the appellant demeaned himself by arrogantly maintaining an attitude of challenge and ridicule in his remarks to the Court, these proceedings stand to be decided on a consideration of the content of the evidence tendered, in conjunction with a consideration of relevant evidence that remains starkly absent, rather being based on the appellant’s unhelpful courtroom conduct and demeanour. That said, the appellant has not at all assisted the process by that behaviour.

18. Regrettably, as a consequence of the appellant’s self-representation, he has conducted his appeal with considerable time-wasting prolixity and incompetence, the latter description being a term he has frequently invoked in the course of the proceedings when seeking to deprecate and criticise the conduct of others, according to his perceptions.

19. The appeal is a re-hearing of the Children’s Court proceedings. The appeal must be considered in the legislative context that all decisions made pursuant to the Care Act must be subject to the principle that ‘the safety, welfare and well-being of the child or young person are paramount”: s 9(1) of the Care Act; Re Kerry (No 2) [2012] NSWCA 127, at [29].

20. The nature of the appeal provided scope for the appellant to adduce fresh evidence in addition to what was considered in the Children’s Court, if he chose to take that course.

21. Therefore, it was initially puzzling that the appellant had never complied with successive case management orders requiring him in a timely manner to file and serve detailed affidavit evidence setting out the substance of the factual evidence upon which he intended to rely in support of his appeal, and in particular, details of any intended evidence of his own in the appeal, as was required by Practice Note DC (Civil) No. 5.

22. In this Court, pre-hearing case management orders were made for the appellant to file and serve affidavit evidence in support of his appeal, but he did not comply with those orders, which were made on 23 March 2020, 12 May 2020, 2 June 2020 and 14 August 2020.

23. Similar orders to the same effect were subsequently made after the hearing of the appeal had commenced, namely, on 2 December 2020, 11 January 2021, 5 February 2021, 31 March 2021 and 9 April 2021. The appellant did not comply with those orders.

24. Significantly, in the Children’s Court proceedings, the appellant had also failed to file and serve his evidence in those proceedings in a timely manner. In that Court he was required to do so by 8 April 2019, and instead, he filed some of that material on 17 May 2019, which led to him receiving a rebuke from the Children’s Court Magistrate for his dilatory attention to that Court’s important case management directions: Exhibit “M”, Tab 11, pp 883.1 – 883.9.

25. In the Children’s Court, and in this Court, the appellant has been afforded a great deal of procedural latitude over his persistent non-compliance with case management orders.

12. In this Court, during the final phase of the hearing of the appeal, when it was time for the appellant to give evidence, bizarrely, it became evident that he was hesitating and was undecided over whether or not he would in fact give any oral evidence in support of his own appeal.

13. At the time, exchanges occurred between the appellant and the Court on that question, the appellant sought and was given the indulgence of a short adjournment to seek legal advice to assist him to decide whether he would give evidence in his appeal. Ultimately, the appellant decided he would give evidence.

14. The appellant’s ensuing unstructured approach to giving his evidence revealed that he appeared to have had very little if anything helpful to say in the way of factual substance to support his appeal.

15. At the conclusion of the appellant’s cross-examination by counsel for the Secretary, much of the case the appellant sought to make had been undermined. Following that cross-examination, he chose not to avail himself of the opportunity to provide explanatory evidence in re-examination. That was so despite having been informed on several occasions that he had a right to take that course if he considered it necessary to do so.

16. In the Children’s Court, the proceedings occupied a total of 13 non-consecutive hearing days over an 11 month period. Due to the appellant’s litigation conduct, many difficulties arose in the course of those proceedings.

17. The record of the proceedings in the Children’s Court clearly shows that the Children’s Court Magistrate had displayed considerable patience and restraint when hearing the matter in light of the appellant’s provocative, at times puzzling, and at other times, bizarre litigation conduct. In the Children’s Court, at one stage the appellant seemed to have adopted a passive aggressive stance at a point when he resisted answering material questions that had been put to him in cross-examination.

18. In the Children’s Court, the appellant was rebuked for his courtroom conduct on many occasions. On many other occasions he was counselled to stop wasting court time. On 2 September 2019, on the 9^th day of those proceedings, the Children’s Court Magistrate found it necessary to rebuke the appellant in the following terms:

“HIS HONOUR: Mr [Redaction of appellant’s name], again a matter of your tone of voice and the way that you’ve approached this litigation. This is not a combat sport. This is not a matter for you to vent your frustrations in that way. If there’s a proper question to be asked, ask the question, but ask it in a way that’s not belittling or demeaning or insulting. Do you understand?”

[Exhibit “M”, Tab 14, p 1093.13 – 1093.17]

33. Despite that admonition, and despite many others like it, the appellant continued his litigation misbehaviour in the Children’s Court, and in this Court, in a time-wasting manner that would not have been tolerated without disciplinary consequences if such conduct had been displayed by a legal practitioner holding a current practising certificate.

34. These appeal proceedings involved a total of 39 non-consecutive listing days, where the case was originally estimated to require a 5 to 7 day hearing.

35. The inordinate amount of time taken for the appeal to have reached this point has been largely due to the appellant’s wide-ranging, time-wasting disputatious attitude, his delaying tactics, whether intentional or not, and his at times provocative, bizarre, and difficult to control litigation conduct.

36. That conduct extended to the appellant seeing fit to make numerous disparaging and abusive comments to and about the Court and the legal practitioners who appeared in the proceedings.

37. At times, the appellant’s courtroom misbehaviour included vehement intemperate outbursts, in which he made scandalous and inflammatory non sequitur statements about public figures.

38. The appellant’s courtroom conduct in the appeal also extended to him articulating a number of oblique threats and menacing remarks to the Court.

39. At times, the appellant’s presenting behaviour seemed elevated and aggressive, accompanied by insistent threatening remarks and gesticulations. Those circumstances required the deployment of additional security arrangements in the courtroom for the protection of those present.

40. The record of these proceedings sufficiently identifies the multiple instances of the appellant’s courtroom misbehaviour and misconduct. At a later point in the course of these reasons, in the appropriate context, some of those matters will be referred to with greater particularity.

41. A challenging difficulty in this appeal has been the need to balance the appellant’s diversionary litigation conduct, and his persisting non-compliance with Court orders requiring him to file and serve the evidence upon which he relied, with the concomitant requirements of the procedural fairness to which he is entitled, whilst at the same time recognising that the central focus of the proceedings must be the paramount consideration of the best interests of the child who is the subject of the proceedings: s 9(1) of the Care Act.

42. The lasting impression gained from the appellant’s conduct in the litigation was that, despite his protestations to the contrary, he seemed to have lost sight of the fundamental requirements of s 9(1) of the Care Act.

43. In one of the appellant’s elevated and intemperate courtroom outbursts, he grandiosely referred to his high professional status. He stated he is one of the very few people trained in the full nuclear fuel cycle, including designing a nuclear weapon: Day 6, T94.30. He sought to ascribe the origin of the events that have led to these proceedings as him having “been brought down by this unfounded things (sic) just because I picked a fight with a schoolteacher”: Transcript, Day 28, T349.48 – T349.50. That cited remark was a misstatement on his part. It was also a significant over-simplification of the true underlying circumstances which had led to the child’s removal from his parental care.

44. The appellant’s perspective view of the origins of the proceedings, as cited in the preceding paragraph, is not supported or borne out by the evidence adduced in the proceedings. Nowhere in the evidence did the appellant acknowledge or adequately explain or address the causative significance of his violent behaviour towards his daughter, that behaviour being the foundation factual event which has led to the child’s removal, the subsequent Children’s Court proceedings, and these consequential appeal proceedings.

45. The appellant’s statement as cited in paragraph [43] above seems to indicate that from his perspective, these proceedings are more about his own quest for self-vindication rather than him considering as paramount, the best interests of his child.

46. The appellant’s courtroom conduct in his appeal was within a range of extremes.

47. Initially, the appellant gave the impression that he was seeking to prosecute his appeal with considerable ardour, but without complying with case management orders for the filing of his evidence. At a later point, at the other extreme, he attempted to discontinue his proceedings. At a later point towards the end of the hearing, after 7 June 2021, he failed to appear at successive listings, culminating in his failure to appear on 16 July 2021 to make his final submissions, despite being informed that this was the occasion for him to do so.

48. The end result has been that these proceedings have consumed extensive public resources at a great cost to the State. Consequently, the Secretary has flagged an intention to seek a gross sum costs order in the amount of $220,000, discounted from the greater sum of $270,251.60, claiming exceptional circumstances, as contemplated by s 88 of the Care Act.

Issues for determination in the appeal

49. The evidence tendered in the appeal, including the emergence of some particularly unusual and bizarre conduct on the part of the appellant towards the end of the hearing, indicates that the essential issues requiring determination are as follows:

1. Whether, by reason of the appellant’s absence and non-participation in his proceedings since 7 June 2021, also taking into account his unsuccessful attempt to discontinue his appeal on Day 33, and his failure to make submissions in support of his appeal on 16 July 2021, he should be taken to have abandoned his appeal. The consideration and reasons for determining that question in the affirmative, appear at paragraphs [832] to [845] below. (“Abandonment of the appeal”);

2. Whether, given the child protection focus of the proceedings, and having regard to s 9(1) of the Care Act, in the continuing absence of the appellant’s participation in these child protection proceedings, the Court should nevertheless proceed to review the evidence and record specific findings based on the state of the evidence. The consideration and reasons for determining that question in the affirmative, appear at paragraph [846] below. (“Required record for child protection proceedings”);

3. Whether the establishment component of the decision of the Children’s Court, which found the child was relevantly in need of care and protection, should be revisited and reconsidered in these appeal proceedings to arrive at a different decision to that found by the Children’s Court. The consideration and reasons for determining that question in the negative, appear at paragraphs [847] to [871] below. (“Establishment”);

4. What determinative weight should be given to the submitted wishes of the child as was related by the child’s former independent legal representative and her current direct legal representative. The consideration and reasons for determining that question requiring that such wishes and views should be given significant determinative weight, appear at paragraphs [873] to [891] below. (“Weight to be given to the child’s wishes”);

5. Whether there is a realistic possibility of the child the subject of the appeal being restored into the parental care of her father, the appellant. The consideration and reasons for determining that question in the negative, appear at paragraphs [893] to [918] below. (“Restoration”);

6. Whether the state of the evidence justifies the making of an order requiring that an amended care plan be prepared. The consideration and reasons for determining that question in the negative, appear at paragraphs [920] to [922] below. (“Amended care plan”);

7. Whether the Secretary of the Department of Communities and Justice (“DoCJ”) has demonstrated the existence of exceptional circumstances within the meaning of s 88 of the Care Act such that the justice of the circumstances requires that a compensatory order for costs be made in favour of the Secretary against the appellant in the appeal proceedings. The consideration of that question, as identified at paragraphs [920] to [922] below, must be deferred until the parties have had the opportunity to be heard on that question. (“Costs”);

8. Whether, pursuant to s 200A of the District Court Act 1973, the papers identifying the appellant’s courtroom behaviour should be referred to the Attorney General for a consideration of what consequences if any should follow from that behaviour. The consideration of that question and reasons for determining that question in the affirmative, appear at paragraphs [923] to [925]. (“Disrespectful behaviour in Court”).

Summary identifying the outcome of the appeal

50. In essence, the outcome of the consideration of the first six issues identified at paragraph [49] above, necessarily requires that the appeal should be dismissed, and that consequently, the appealed orders made by the Children’s Court should be confirmed.

51. For reasons that will be identified in this decision in due course, the remaining two issues, namely the application for costs and the referral of the papers, require a separate consideration beyond the scope of these reasons.

52. The overwhelming conclusion to emerge from the evidence is that the appellant has not adequately addressed or allayed the serious doubts and concerns that have been raised by DoCJ over his fitness to be entrusted with the parental responsibility for his daughter on grounds of her safety, welfare and well-being. The evidence shows that he is unfit to have that responsibility restored to him.

53. Before proceeding to expand upon those matters within the structure of these reasons, it is instructive to review the appellant’s disorganised and bizarre approach to the proceedings, where on 28 May 2021, on Day 34, he vacillated over the question of whether he would give oral evidence in his own appeal.

54. A redacted extract of the transcript of the proceedings of 28 May 2021 is reproduced as Appendix B to these reasons. That extract demonstrates the appellant’s bizarre approach to the question of whether or not he would give evidence in his appeal.

55. Those events are revelatory of the appellant’s inadequate approach to the planning and the presentation of his appeal. This is a somewhat paradoxical circumstance, given that he is an intelligent man and this case is of such obvious importance to him.

56. In determining the issues calling for decision in this appeal it became necessary to draw conclusions about the appellant as a witness. In that regard, as will be made clear in due course in these reasons, notwithstanding his intelligence, he has shown himself to be a most unsatisfactory witness.

PART B - REVIEW AND CONSIDERATION OF RELEVANT TOPICS

57. A series of 31 topics of significance that have arisen in the proceedings, and which require review and consideration, is identified in the following structure.

Topics reviewed in these reasons

58. These reasons are structured as follows:

1. Dramatis personae: see paragraphs [59] to [61] below;

2. Explanation of the method adopted for transcript references on account of the disjointed pagination of the transcript: see paragraphs [62] to [67] below;

3. Interlocutory decisions and listing days in the course of the appeal: see paragraphs [68] to [81] below;

4. Documentary material for consideration: see paragraphs [81] to [87] below;

5. Appellant’s serial applications for judicial recusal: see paragraphs [88];

6. The child’s family history: see paragraphs [89] to [97] below;

7. Factual basis for removal of the child from the appellant’s parental care: see paragraphs [98] to [118] below;

8. Hospital investigation and documentation of the child’s injuries: see paragraphs [119] to [137] below;

9. Contemporaneous photographs of the child’s injuries: see paragraphs [138] to [145] below;

10. Child’s evidence of being assaulted by her father: see paragraphs [146] to [158] below;

11. Evidence relied upon by appellant claimed to be exculpatory of any wrong-doing on his part: see paragraphs [159] to [207] below;

12. Appellant’s recorded conviction for assaulting his daughter: see paragraphs [208] to [225] below;

13. Foster care arrangements following the child’s removal from parental care: see paragraphs [226] to [236] below;

14. Procedural history of the Children’s Court proceedings: see paragraphs [237] to [243] below;

15. Reasons for decision of the Children’s Court: see paragraphs [244] to [260] below;

16. Orders sought by the appellant’s summons by which he commenced the appeal: see paragraphs [261];

17. Appellant’s deficient conduct of his appeal: see paragraphs [262] to [276] below;

18. The appellant’s disrespectful and disruptive behaviour in Court: see paragraphs [277] to [292] below;

19. Threats made in Court by the appellant during the course of the proceedings: see paragraphs [293] to [310] below;

20. Procedural delays due to appellant’s litigation conduct: see paragraphs [311] to [320] below;

21. Unexpected delay due to a concern raised that the proceedings were being impermissibly recorded by the appellant: see paragraphs [321] to [330] below;

22. Effect of the proceedings on the health, welfare and well-being of the child whilst the proceedings remain unresolved by findings: see paragraphs [331] to [340] below;

23. Pre-October 2020 procedural history of the appeal proceedings: see paragraphs [341] to [351] below;

24. Post-October 2020 procedural history of the appeal proceedings: see paragraphs [352] to [481] below;

25. Appellant’s unsuccessful attempt to discontinue his appeal on 4 June 2021, Day 33: see paragraphs [482] to [488] below;

26. Appellant’s last appearance in Court on 7 June 2021: see paragraphs [489] to [498] below;

27. Call from the appellant on 8 June 2021: see paragraph [499] below;

28. Appellant’s apparent unwellness on 9 June 2021: see paragraphs [500] to [510] below;

29. Decision on 9 June 2021 to receive submissions in the appellant’s absence: see paragraphs [511] to [516] below;

30. Appellant’s continuing absence from the proceedings after 7 June 2021: see paragraphs [517] to [532] below;

31. Appellant’s email sent to the District Court Civil Registry on 16 July 2021: see paragraphs [533] to [544] below.

(1) Dramatis personae

59. To ensure the child’s anonymity, and to give practical effect to the non-publication order made in the proceedings, in these reasons, the child and her parents have only been identified in general terms. The parties have been allocated litigation pseudonyms as follows:

1. The appellant father, who has been self-represented throughout the proceedings despite his claims of having some access to legal assistance and advice, will be referred to either by his status as the father or by the litigation pseudonym “Y”, depending on the context;

2. The child the subject of the proceedings will be described by that status in order to maintain her anonymity;

3. The mother of the child, who is the second respondent to the appeal, will be referred to as the mother;

4. The child is represented in these proceedings by Mrs Denise Clark, solicitor, as the child’s Direct Legal Representative (“DLR”), pursuant to a grant of legal aid for that purpose.

60. Mrs Denise Clark became the child’s DLR in December 2020 after the child attained the age of 12 years. Beforehand, Ms Natalie Adams, solicitor, was the child’s appointed Independent Legal Representative (“ILR”). The child’s wishes and instructions on the issues raised in the appeal have been communicated to the Court by those legal representatives.

61. The underlying theme of the wishes the child has expressed over time with regard to the litigation, as conveyed by those representatives, has been consistent throughout. She simply does not want the appeal to succeed and she does not want to be returned into the parental care of her father.

(2) Method for transcript references in these reasons

62. Unfortunately, the pagination of the transcript of the appeal proceedings became problematic as it has not been continuously paginated due to the non-continuous hearing dates. Nevertheless, in these reasons a systematic method for transcript references is required, particularly because of the possibility that, at some later stage, others may have to refer to these reasons, and they may also need to have available to them a convenient means of referring to relevant aspects of the transcript.

63. The first listing day of the appeal in Newcastle on 26 October 2020 produced 3 pages of transcript paginated in the series pages 1 – 3: Day 1. The transcript of the next nine listing days in Newcastle between 27 October 2020 and 6 November 2020 are paginated in the series pages 1 – 405: Days 2 – 10. The transcripts for the next 11 listing days in Sydney in the range 13 November 2020 to 9 April 2021 each starts at a new page 1: Days 11 – 23. The transcript for the remaining 16 listing days in Sydney commencing on 24 May 2021 and concluding on 16 July 2021, is paginated in the series pages 1 – 816: Days 24 – 39.

64. In those circumstances, for convenient reference, rather than calling for the transcript to be re-issued in its entirety with continuous pagination, the system adopted for transcript references in these reasons, will be by reference to the numerical day of the proceedings in the series Day 1 to Day 39, followed by the appropriate page and line references, according to the following index:

Day	Date	Transcript page range
1	26.10.2020	1 – 3
2	27.10.2020	1 – 48
3	28.10.2020	48 – 52
4	29.10.2020	53 – 54
5	30.10.2020	55 – 59
6	02.11.2020	60 – 150
7	03.11.2020	151 – 161
8	04.11.2020	162 – 239
9	05.11.2020	240 – 275
10	06.11.2020	276 – 277
11	13.11.2020	278 – 289
12	02.12.2020	290 – 325
13	10.12.2020	326 – 358
14	15.12.2020	359 – 405
15	18.12.2020	1 – 3
16	11.01.2021	1 – 7
17	05.02.2021	1 – 21
18	09.02.2021	1 – 29
19	18.02.2021	1
20	12.03.2021	1 – 14
21	19.03.2021	1 – 54
22	31.03.2021	1 – 5
23	09.04.2021	1 – 48
24	24.05.2021	1 – 78
25	25.05.2021	79 – 178
26	26.05.2021	179 – 248
27	27.05.2021	249 – 346
28	28.05.2021	347 – 443
29	31.05.2021	444 – 490
30	01.06.2021	491 – 568
31	02.06.2021	569 – 649
32	03.06.2021	650 – 721
33	04.06.2021	722 – 745
34	07.06.2021	746 – 770
35	09.06.2021	771 – 794
36	10.06.2021	795 – 801
37	11.06.2021	802 – 805
38	02.07.2021	806 – 810
39	16.07.2021	811 – 816

65. Before leaving the topic of the transcript, it is noteworthy that it contains many non-transcribable portions. At times the appellant spoke at a rapid pace despite having been asked to slow down in his speaking out of consideration for those transcribing the recording of the proceedings. His arrogant response was to suggest those persons were not competent in their work if they could not cope with the pace of his delivery: Day 8, T210.1 – T210.30.

66. In contrast, the appellant had taken a more co-operative approach to the transcript in the Children’s Court when he was asked to slow down and ask his questions calmly so that a witness could follow him more easily: Exhibit “M”, Tab 8, pp 603.7 – 603.35.

67. Nevertheless, as a result of the appellant’s pace of speaking there are many non-transcribable portions of the transcript of what he had to say in the proceedings both in the Children’s Court and in this Court. In considering the overall context of those items in light of the issues calling for decision in the case, the non-transcribable portions did not seem to be of determinative significance. The appellant made no comment on a draft list of transcript corrections that had been circulated to the parties. The schedules identifying those corrections has been marked as Exhibit “Y”.

(3) Interlocutory decisions and listing days in the course of the appeal

68. Since October 2020, this is the sixth in a series of published judgments in the present appeal. The earlier interlocutory decisions in the matter have been published in the following series:

1. Y v The Secretary, Department of Communities and Justice [2020] NSWDC 674;

2. Y v The Secretary, Department of Communities and Justice (No 2) [2020] NSWDC 762;

3. Y v The Secretary, Department of Communities and Justice (No 3) [2021] NSWDC 19;

4. Y v The Secretary, Department of Communities and Justice (No 4) [2021] NSWDC 81;

5. Y v The Secretary, Department of Communities and Justice (No 5) [2021] NSWDC 117.

69. The series of interlocutory decisions referred to in paragraph [68] above relate to a cumulative 20 interlocutory listing days. The extent of those listings for proceedings of this kind was inordinate, and was occasioned by the appellant’s aberrant litigation conduct, which at times has amounted to litigation misconduct.

70. The appellant’s approach to the proceedings was not in conformity with the overriding purpose of assisting to facilitate a just, quick and cheap resolution of the matters in dispute, as required by s 56 of the Civil Procedure Act 2005 (NSW).

71. Of those many interlocutory listing days for this appeal, the first 10 were in Newcastle, where it was initially anticipated that ordinarily, the appeal would have been heard to finality as a matter of priority in a circuit sittings running list.

72. Following the emergence of a number of procedural issues and difficulties which stemmed from the appellant’s self-representation and from his non-compliance with previous case management orders, a further 13 interlocutory and case management listings of these appeal proceedings took place in Sydney before the substantive hearing of the appeal could proceed.

73. The original listings were on 26, 27, 28, 29, 30 October 2020; 2, 3, 4, 5 and 6 November 2020. The further listing days were on 13 November; 2, 10, 15 and 18 December 2020; 11 January 2021; 5, 9 and 18 February 2021; 19 and 31 March; and 9 April 2021.

74. The final hearing of the appeal subsequently took place in Sydney over the course of 16 listing days on 24, 25, 26, 27, 28, 31 May, 1, 2, 3, 4, 7, 9, 10, 11 June, 2 and 16 July 2021.

75. On 16 July 2021, the appellant did not appear at Court, either in person or by means of an AVL connection that had been pre-arranged for him in advance of that date. After the Court convened on that day and after the other parties had announced their appearances, a communication was received from the Judicial Registrar which attached an email from the appellant sent at 8.22am on that day.

76. The content of the appellant’s email was read onto the record. It will be cited in full at a later point in these reasons. It recited a litany of complaints and it contentiously asserted that “this matter cannot proceed to submissions in the absence of transcripts / orders / evidence available to the appellant”.

77. That communication from the appellant was considered in the light of his absence and in light of a series of his other communications since 8 June 2021. Copies of those communications have been assembled into a convenient paginated bundle: Exhibit “W”.

78. On 16 July 2021, without adequate explanation, the appellant did not appear. In light of earlier indications given to him that he must appear on that day if he wished to make submissions in support of his appeal, for reasons recorded in the transcript at that time, the evidence and submissions in the proceedings were declared to be closed, subject to any further applications that might be made. The Court then reserved judgment in the matter, with liberty to apply, if required: Day 39, T816.

79. Those circumstances are more fully set out and considered in the appropriate chronological context in connection with the matters described in Topics (25) to (31) below.

80. In essence, all that need be said of those circumstances at this point is that the appellant did not make any formal application that could reasonably have been considered to be an application for an adjournment. Instead, his email to the Judicial Registrar was nothing more than a complaint to the Judicial Registrar, and a statement of opinion. It was not an application to the Court.

81. The appellant’s written request for the matter not to proceed, as identified in paragraph [76] above, was not treated as a formal application in view of the way it was expressed, addressed to the Registrar, who was not seized of the matter, absent the appearance of the appellant to speak to it, and absent supporting affidavit evidence. The appellant is a seasoned litigant who must be taken to have known the required procedure for making such a formal and significant application to the Court, and he did not take that procedure.

(4) Documentary material for consideration

82. The documentary material requiring consideration in the appeal was extensive. It comprised over 5000 pages of documentary exhibits, albeit with some overlap. That material included transcripts for the 13 days of the Children’s Court proceedings, and over 1200 pages of transcript in the appeal proceedings.

83. The documentary evidence as was initially assembled for the hearing in Newcastle on 26 October 2020, included affidavits, exhibited documents and Children’s Court transcripts. Those materials were marked as Exhibit “A” on the application. In the substantive appeal they became Exhibit “M”. It comprised 2 volumes of double-sided printed material, tabbed 1 to 38, pp 1 – 1752.

84. After the completion of the interlocutory hearings that unfolded in Newcastle and then in Sydney, when the appeal resumed in Sydney on 24 May 2021, the documentary evidence was augmented by tender of further material. This comprised 4 volumes of papers printed on both sides. That additional material was marked as Exhibit “E”, Volumes 1 – 4,Tabs 1 to 51, pp 1 – 3009.

85. The documents at Tab 32 of Exhibit “E”, replicated the material that was earlier tendered as Exhibit “A” on the application, and Exhibit “M” in the appeal. The latter course has led to difficulty and confusion in the course of oral evidence when it was necessary to refer witnesses to material located in those disparate volumes.

86. At the resumed hearing between 24 May and 16 July 2021, those materials were augmented by the tender of further exhibits. The series of Exhibits marked “A” to “X”, will be considered and referred to in the appropriate context, when required.

87. Those materials have been taken into account and will be referred to in these reasons if it becomes appropriate to do so.

(5) Appellant’s 8 applications for judicial recusal

88. In the course of the hearing of his appeal, the appellant made eight applications for judicial recusal. The first seven of those applications were refused for reasons given at the time. Those applications raised fanciful and scandalous matters that did not meet the required test for judicial recusal: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63; Polsen v Harrison [2021] NSWCA 23, at [46]-[47], [51]-[61], citing Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48. The appellant withdrew his eighth recusal application: 7 June 2021, Day 34, T746.16 – T746.19.

(6) The child’s family history

89. The child the subject of the appeal was born in Australia. By the operation of law, she is an Australian citizen and she has no other nationality. The parents were both born in India. They each possess advanced professional tertiary qualifications. At present, the mother does not reside in Australia. Since the parents divorced the mother has re-partnered and resides in the United States of America, where she has had another child in her new relationship.

90. The child’s family history has unfortunately been marred by parental discord amidst allegations of domestic violence, including contested Family Court proceedings in which the mother’s application that she be permitted to take the child to her new domicile in the United States of America was rejected by that Court. As a result of the orders made by the Family Court, the child remained with her father until she was removed from his care on 7 August 2017 after his violent behaviour towards her came to light.

91. Although the child’s mother is named as a respondent to this appeal, she has chosen not to take an active part in the appellant’s appeal proceedings. Previously, in the Children’s Court proceedings, the mother had unsuccessfully sought an order for parental responsibility to be allocated to her. The Children’s Court Magistrate rejected that proposal.

92. At this point, it is relevant to refer to a significant historical event that preceded this litigation, namely that, in the Family Court proceedings, between the child’s parents, the mother had failed to secure an order for the child to be moved overseas to live with her mother in her new overseas domicile.

93. Notwithstanding that outcome, the mother subsequently re-entered Australia, and, allegedly, with the apparent co-operation of the principal of the child’s school, took the child away from her school during normal school hours at a time before the appellant would normally collect the child from school at the end of the school day. The mother then attempted to illegally travel with the child by plane to India, a non-Hague convention country. That attempt was in contravention of orders made by the Family Court.

94. Those described events were particularly disturbing because the child’s school had previously been made aware of the orders made by the Family Court. The mother’s attempt to remove the child from Australia at that time was thwarted because the child’s name had been placed on an airport watch list. In those events, the Australian Federal Police quickly intervened and the child was then restored into the father’s care.

95. Those events have apparently caused and still continue to cause the father considerable ire and disgruntlement. The father’s reaction in that regard did not lessen when, after the subsequent removal of the child from his care by DoCJ, he learned that, during the currency of the Children’s Court proceedings, the mother had re-entered the country and had, at public expense, been accommodated in a hotel by DoCJ in order to facilitate an extended period of contact between the mother and the child.

96. Those events appear to have also served as the foundation for the father’s claim that in these proceedings, DoCJ has been running a proxy case for the mother. Whatever the true position might be in that regard, the appellant’s apprehensions to that effect do not carry any decisive weight in this appeal because in this appeal, the mother no longer seeks allocation of the child into her parental care.

97. However, the appellant’s disgruntled suspicions, once aroused, appear not to have diminished, and the appellant’s sense of anger towards the department, the Secretary, and DoCJ staff, does not appear to have abated over the course of time.

(7) Factual basis for removal of the child from the appellant’s parental care

98. The child the subject of the appeal was removed from her father’s care on the afternoon of 7 August 2017 at the age of almost 8 years after information had emerged which raised serious concerns that, on the previous day, he had inflicted physical violence and injury upon her.

99. The surrounding circumstances were that, on the previous evening of 6 August 2017, someone had heard concerning sounds emanating from the family home, to the effect that the child was crying out in a context where the appellant was heard to be yelling at her, and the child was heard to repeatedly request him to stop. Those events suggested that she was receiving multiple beatings.

100. Police were called and attended the appellant’s premises. At that time the appellant hid himself and the child away from the premises and away from the police who had attended to investigate those reported matters. A mandatory report was then made to the authorities. According to the child, when the police arrived, the appellant took her away from the premises, through the back door, and hid in bushes to avoid being confronted by police officers, knowing that he could be in trouble at that time.

101. The next day police officers attended at the child’s school where the appellant was interviewed. At that time he denied to police officers that he had physically disciplined the child.

102. At that time, in the context of elevated concerns over the safety, welfare and well-being of the child, in an atmosphere of safety, where the child expressed gratitude to the authorities at having been believed, she disclosed a history of the appellant having repeatedly struck her with the metal buckle of a belt and also with a metal ruler and another object like a wooden rolling pin, causing her to suffer laceration and bruising on various parts of her body.

103. Subsequent questioning of the child revealed a past history of the appellant having inflicted corporal discipline on her on an almost daily basis. At that time she also disclosed that she was scared of her father when he became angry.

104. Following the mandatory reporting of those events, a medical examination of the child was arranged by the Secretary, DoCJ. This was undertaken at Gosford Hospital where it became apparent that the child was displaying observable signs of bodily injury consistent with her disclosures of abuse.

105. Subsequent investigations, including a detailed history taken from the child, revealed that the appellant had, over time, repeatedly subjected her to injurious corporal discipline which amounted to abuse.

106. In these proceedings, the appellant father sought to mis-characterise and downplay the significance of his abusive behaviour towards his daughter as being mere “over-discipline”, which he claimed was acceptable according to his culture: Day 14, T396.48 – T397.3.

107. At this point, it is necessary to state unequivocally that the foregoing proposition, as stated by the appellant, must be rejected as being completely unacceptable in this society.

108. The disclosure and formal investigation of those described events led to the removal of the child from the appellant’s parental care. The child was then placed into temporary foster care pursuant to two emergency protection orders respectively obtained by DoCJ on 11 and 23 August 2017.

109. On 6 November 2017, with the consent of the appellant, which he gave “without admissions”, the Children’s Court made the establishment finding that the child was in need of care and protection.

110. On 12 December 2019, findings were made that the Children’s Court was satisfied on the question of appropriate permanency planning and placement. The Children’s Court then made final orders allocating parental responsibility for the child to the Minister, until the child attains the age of 18 years. Since then, the initial temporary foster care placement of the child has evolved into a permanent placement.

111. The appellant is dissatisfied with the outcome of the Children’s Court proceedings as identified in the preceding paragraphs. However, by the close of evidence in this appeal from that outcome, the appellant had not produced any evidence that compelled a conclusion that the orders of the Children’s Court are either incorrect or were in any way inappropriate to the circumstances disclosed in the evidence before the Children’s Court.

112. The appellant’s summons commencing the appeal has been framed in imprecise terms. In effect, he seeks that the child be restored into his care. The child is presently approaching the age of 13 years.

113. Pending the finalisation of the appeal, in December 2020, the child reached the milestone age of 12 years. She has therefore become entitled, through her direct legal representative, to express her wishes to the Court as to whether or not the appeal should succeed. The Secretary, the child’s mother, and the child, through her direct legal representative, all oppose the course sought by the appellant in this appeal.

114. All parties to the appeal, including the appellant, have sensibly accepted that the child did not want to give evidence in these proceedings, and that she should not be subjected to the stress of being compelled to attend Court to give evidence and be cross-examined.

115. The present position submitted on behalf of the child is that she adamantly maintains she does not want to be restored into her father’s care. She is happy to remain with her carers. Given the child’s age, absent cogent rebuttal evidence, those statements as to her wishes must be given due weight in any consideration of the issues calling for decision in the appeal.

116. The appellant claims that the child’s views as relayed to the Court in these proceedings, and as identified above, are the result of manipulation or coercion, as some kind of survival reaction the child has maintained in order to avoid the potentially adverse consequences of providing a response that might be more critical of the carers in her placement. There is no cogent evidence to support the appellant’s suspicion-based contentions in that regard. Accordingly, his suspicions should be discounted.

117. In opposing the orders sought by the appellant in this appeal, the Secretary, DoCJ has argued, with cogent justification having regard to the limited evidence of the appellant, that he has not adequately addressed or acknowledged the harmful significance of his history of violent behaviour towards the child.

930. The latter consideration must be given full force in this case in preference to the appellant’s interests where the uncontested evidence is that the proceedings, whilst unresolved, continue to have an adverse and detrimental effect on the safety, welfare and well-being of the child. In that regard, she is anxious, depressed and suffers from insomnia. That is a most untoward circumstance for a 12 year old girl to bear. She is entitled to know that the proceedings have been brought to a timely end at this point so as to enable her to get on with her life, secure in the knowledge that her rights have been respected, acknowledged, and that she remains protected from harm from the appellant.

931. The appellant’s demand for a delay in the finalisation of the proceedings at this late stage is a breathtaking display of self-entitled conduct whereby he seeks to place his own interests ahead of those of his child. That observation is not just that of the Court, but it also represents the belief of the child herself, as observed at paragraph [886] above, citing Exhibit “F”, paragraph 6. The child’s views in that regard bear repetition for the appellant’s better understanding of her position:

“[Child’s name] instructs me that she does not believe that these Court proceedings are a result of her father’s love for her but instead continue only because he wants to ‘win’ so that he can tell people how clever he is in Court. It makes her very sad and angry that he does this whilst knowing that she does not wish to live with him ever again.”

[Exhibit “F”, paragraph 6]

952. The evidence before the Court indicates that the proceedings must not be adjourned or delayed any further. The Court will now proceed to make the required dispositive orders to give effect to the reasons that are identified within the body of this judgment.

PART F – DISPOSITION AND ORDERS

953. It therefore remains to identify the dispositive remarks, orders, and ancillary matters.

Disposition

954. Nothing the appellant father has said during the course of these proceedings justifies a re-agitation and reconsideration of the establishment issue that was properly determined in the Children’s Court. The Children’s Court Magistrate dealt with that issue comprehensively, and correctly. The evidence overwhelmingly establishes that at the time of the child’s removal from parental care, she was in need of care and protection within the meaning of s 71(1)(a), (c) and (e) of the Care Act. This continues to remain so insofar as the child needs protection from the appellant. There is no need for an amended care plan. The appellant has not succeeded on any substantive issue that has been identified in his appeal. The child is still at risk of harm from him if he were to have unsupervised contact with her. The child does not want that to occur. Accordingly, the appellant’s appeal must be dismissed.

Orders

955. The Court makes the following orders:

1. The appellant’s summons commencing the appeal filed on 7 January 2020 is dismissed;

2. The orders made by the Children’s Court on 12 December 2019 are confirmed;

3. The transcript of the proceedings and the Exhibits in these proceedings are to remain with the court file pending the further order of this Court or a superior Court;

4. Pursuant to s 200A of the District Court Act 1973 (NSW), a copy of the transcript of these proceedings and these reasons for decision are to be referred to the Registrar of the Court for referral to the Attorney General for the State of NSW for the consideration of the implications of the appellant’s disrespectful behaviour in Court;

5. The Secretary of the Department of Communities and Justice, is directed to file and serve, within 7 days of today’s date, a formal notice of motion with any supporting affidavit evidence, returnable in Sydney on Friday 27 August 2021, concerning the application for costs made pursuant to s 88 of the Children and Young Persons (Care and Protection) Act 1998 (NSW);

6. The appellant may appear at the hearing of the notice of motion referred to in order (5) above by means of an AVL connection from Newcastle Court house. To facilitate that hearing he is required to beforehand make appropriate timely arrangements with the Newcastle Registry for AVL facilities to be made available to him if he wishes to do so;

7. A PDF copy of these reasons is to be forthwith provided to the appellant by email to all of his email addresses from which he has communicated in these proceedings;

8. The Registrar is to forthwith provide a printed copy of these reasons to the appellant by express post sent to the post office box to which previous correspondence from the Court has been sent to the appellant;

9. Liberty to the parties to apply on 7 days’ notice if further or other orders are required.

**********

APPENDIX A

Transcript references to appellant’s disrespectful behaviour in Court

1. 02.11.2020 : D6, T85.50 – T86.5

2. 02.11.2020 : D6, T86.50 – T87.40

3. 02.11.2020 : D6, T91.7

4. 02.11.2020 : D6, T93.26

5. 02.11.2020 : D6, T95.1 – T95.4

6. 02.11.2020 : D6, T105.17 – T105.26

7. 02.11.2020 : D6, T113.40 – T114.4

8. 02.11.2020 : D6, T121.33

9. 02.11.2020 : D6, T135.42

10. 02.11.2020 : D6, T140.31

11. 02.11.2020 : D6, T142.33

12. 04.11.2020 : D8, T208.14

13. 04.11.2020 : D8, T209.49

14. 04.11.2020 : D8, T214.43

15. 02.12.2020 : D12, T316.4 – T316.18

16. 15.12.2020 : D14, T376.31 – T376.41

17. 15.12.2020 : D14, T400.32 – T400.44

18. 09.02.2021 : D18, T17.16

19. 12.03.2021 : D20, T4.5

20. 12.03.2021 : D20, T12.47 – T13.9

21. 19.03.2021 : D21, T11.42 – T12.2

22. 19.03.2021 : D21, T16.21 – T17.4

23. 19.03.2021 : D21, T21.38 – T21.40

24. 19.03.2021 : D21, T25.22

25. 19.03.2021 : D21, T26.14 – T26.22

26. 19.03.2021 : D21, T26.38 – T26.40

27. 19.03.2021 : D21, T26.49 – T26.50

28. 19.03.2021 : D21, T30.3 – T30.11

29. 19.03.2021 : D21, T38.34 – T38.36

30. 19.03.2021 : D21, T45.20 – T45.45

31. 19.03.2021 : D21, T47.43 – T48.29

32. 19.03.2021 : D21, T49.50

33. 09.04.2021 : D23, T7.29

34. 09.04.2021 : D23, T10.28

35. 09.04.2021 : D23, T11.1 – T12.23

36. 09.04.2021 : D23, T13.15 – T13.18

37. 09.04.2021 : D23, T15.28 – T15.29

38. 09.04.2021 : D23, T16.3 – T16.18

39. 09.04.2021 : D23, T17.1 – T18.4

40. 09.04.2021 : D23, T18.18 – T18.28

41. 09.04.2021 : D23, T19.28 – T19.29

42. 09.04.2021 : D23, T19.48 – T20.4

43. 09.04.2021 : D23, T20.12 – T20.35

44. 09.04.2021 : D23, T22.16 – T22.26

45. 09.04.2021 : D23, T22.40 – T22.48

46. 09.04.2021 : D23, T25.39 – T25.40

47. 09.04.2021 : D23, T26.1 – T26.2

48. 09.04.2021 : D23, T37.11 – T37.20

49. 09.04.2021 : D23, T39.24 – T39.30

50. 09.04.2021 : D23, T45.34 – T45.43

51. 24.05.2021 : D24, T16.3 – T16.6

52. 24.05.2021 : D24, T17.6 – T17.16

53. 24.05.2021 : D24, T17.39 – T18.16

54. 24.05.2021 : D24, T18.50 – T19.8

55. 24.05.2021 : D24, T19.38 – T20.3

56. 24.05.2021 : D24, T21.37 – T21.41

57. 24.05.2021 : D24, T25.16 – T25.17

58. 24.05.2021 : D24, T42.1 – 42.21

59. 24.05.2021 : D24, T48.16– T48.28

60. 24.05.2021 : D24, T53.21 – T54.3

61. 24.05.2021 : D24, T54.45 – T55.11

62. 24.05.2021 : D24, T58.14 – T58.26

63. 24.05.2021 : D24, T67.33 – T67.48

64. 24.05.2021 : D24, T68.27 – T69.8

65. 24.05.2021 : D24, T73.5 – T73.9

66. 24.05.2021 : D24, T76.44 – T77.21

67. 25.05.2021 : D25, T83.10 – T83.17

68. 25.05.2021 : D25, T94.35 – T95.14

69. 25.05.2021 : D25, T96.41 – T97.14

70. 25.05.2021 : D25, T100.40 – T101.2

71. 25.05.2021 : D25, T104.5 – T105.48

72. 25.05.2021 : D25, T114.10 – T114.31

73. 25.05.2021 : D25, T116.26 – T117.11

74. 25.05.2021 : D25, T123.46 – T124.49

75. 25.05.2021 : D25, T125.17 – T127.16

76. 25.05.2021 : D25, T145.45 – T147.13

77. 25.05.2021 : D25, T148.20 – T149.27

78. 25.05.2021 : D25, T153.29 – T153.37

79. 25.05.2021 : D25, T154.11 – T156.19

80. 25.05.2021 : D25, T156.21 – T156.47

81. 25.05.2021 : D25, T158.17 – T158.38

82. 25.05.2021 : D25, T161.15 – T161.22

83. 26.05.2021 : D26, T200.41 – T201.6

84. 26.05.2021 : D26, T201.13 – T201.46

85. 26.05.2021 : D26, T202.2 – T202.45

86. 26.05.2021 : D26, T203.45 – T204.24

87. 26.05.2021 : D26, T205.4 – T205.22

88. 26.05.2021 : D26, T214.35 – T215.11

89. 26.05.2021 : D26, T220.10 – T220.19

90. 26.05.2021 : D26, T239.45 – T239.50

91. 26.05.2021 : D26, T243.8 – T243.23

92. 26.05.2021 : D26, T244.1 – T244.42

93. 26.05.2021 : D26, T245.7 – T246.28

94. 26.05.2021 : D26, T247.20 – T247.47

95. 27.05.2021 : D27, T256.16 – T256.42

96. 27.05.2021 : D27, T332.20 – T332.34

97. 28.05.2021 : D28, T347.38 – T348.35

98. 28.05.2021 : D28, T349.26 – T350.12

99. 28.05.2021 : D28, T352.35. – T353.15

100. 28.05.2021 : D28, T422.39 – T422.46

101. 31.05.2021 : D29, T488.26. – T488.34

102. 01.06.2021 : D30, T549.21 – T551.44

103. 01.06.2021 : D30, T552.10 – T552.49

104. 01.06.2021 : D30, T554.4 – T555.31

105. 02.06.2021 : D31, T601.24 – T602.23

106. 02.06.2021 : D31, T637.46 – T639.8

107. 03.06.2021 : D32, T650.23 – T651.1

108. 03.06.2021 : D32, T657.37 – T658.23

109. 03.06.2021 : D32, T665.35 – T666.23

110. 03.06.2021 : D32, T716.20 – T718.6

111. 03.06.2021 : D32, T718.13 – T721.45

112. 04.06.2021 : D33, T744.12 – T745.32

APPENDIX B (83958, pdf) 

28 May 2021 – Day 34, T365.2 – T372.11

Amendments

13 August 2021 - inserted link to Appendix B

Decision last updated: 13 August 2021