Important cases

[3-1000] Aboriginal and Torres Strait Islander placement principles

Last reviewed: Oct 2023

Re Lucinda Porter (No 2) [2023] NSWChC 2

Placement/Kinship assessment — Aboriginal child with special needs, diagnosed as having mild intellectual difficulty, ADHD, Moderate Receptive and Severe Expressive Language Delay with poor social language skills, incontinence — placed with non-Aboriginal foster carers — child is stable, secure and thriving in current placement — Family Group Conference indicated family’s wish for child to remain in current placement — Care Plan proposed maternal great-uncle and aunt as long-term kinship carers — request for DCJ's permanency planning refused — long-term placement with maternal great-uncle and aunt cannot be recommended unless they are aware of child's special needs and assessment considers whether they have skills and commitment to provide a long-term home for child with special needs — safety, welfare and well-being of child are paramount, and kinship placement is not the only consideration in deciding placement — no evidence Secretary considered and weighed all relevant factors — maternal great-uncle and aunt withdrew application — no Aboriginal carers available and only available long-term placement was foster parents — Amended Care Plan and Cultural Plan permanency planning appropriately and adequately addressed — placement/kinship assessment must contain probing, challenges, appropriate corroboration, consideration of objective evidence, analysis and reasoning based on assessor’s expertise: see [74] for assessment requirements — DCJ must balance Aboriginal and Torres Strait Islander placement principles with child’s current circumstances and future needs and placement options and decide which placement will be in the child’s best interest.

Re Malakhai [2022] NSWChC 6

Application by mother for restoration — Aboriginal mother and child — s 13 Aboriginal and Torres Strait Islander Child and Young Person Placement Principles apply — vulnerable child with ongoing medical and health needs — mother and child living in an FSP residential home with no support — referral to residential intensive parenting education program did not eventuate — Family is Culture Report recommendation 45: prenatal caseworkers should be allocated to ensure that expectant Aboriginal parents have access to early, targeted and coordinated intervention services and support — mother needs targeted and therapist-lead counselling to assist her learn parenting skills — no realistic possibility of restoration to mother — mother demonstrated no insight into impact of her cannabis use on her ability to parent safely — domestic violence — permanency planning has not been appropriately and adequately addressed — direction that a new Care Plan be prepared.

Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83

Adoption — biological father opposed adoption — biological mother identified as Aboriginal — child assumed into care at 7 months of age and placed with her proposed adoptive mother who is not Aboriginal — prior decision, Fischer v Thompson (Anonymised) [2019] NSWSC 773, stated that in order for a child to be an “Aboriginal child”, it was necessary to identify an ancestor of the child who was “a member of the Aboriginal race of Australia, and identified as an Aboriginal person, and was accepted by the Aboriginal community as an Aboriginal person” — at first instance it was held that the child was not Aboriginal and Aboriginal child placement principles did not apply — s 4(1) Adoption Act 2000 provides that the definition of “Aboriginal child” refers to “descended from an Aboriginal” and s 4(2) refers to the child being “of Aboriginal descent”; “descended” and “descent” have nothing to do with identification or acceptance — unnecessary to identify ancestor who was a member of Aboriginal race, identified as Aboriginal and was recognised by Aboriginal community — sufficient to show child was descended from people who lived in Australia before British colonisation — Fischer v Thompson (Anonymised) [2019] NSWSC 773 disapproved — leave to appeal granted in part.

Department of Communities and Justice and Masters [2020] NSWChC 7

Application to rescind Care Orders giving Minister parental responsibility — applicant formerly held parental responsibility for child — Secretary opposed leave being granted due to an inability to approve applicant as an authorised carer because of a current bar to a Working With Children Check and also concerns as to capacity to provide adequate care — applicant and child are Aboriginal people — applicant shared parental responsibility with Minister for cultural up-bringing — sufficient interest in welfare of a child to enable applicant to have standing — significant change in relevant circumstances — applicable factors for s 90 leave following amendment of Care Act — child’s attachment to applicant and risk of psychological harm — leave granted.

Adoption of B [2019] NSWSC 908

Adoption — child assumed into care at 6 months of age and placed with her proposed adoptive mother whom she has lived with for 12 years — birth father opposed adoption order — child consented to adoption — birth mother identified as Aboriginal person — evidence not conclusive whether child is of Aboriginal descent — adoption in child’s best interests — order for adoption and order for change of surname approved.

Fischer v Thompson (Anonymised) [2019] NSWSC 773

Adoption — ss 4, 34 Adoption Act 2000 definition of Aboriginal person — s 32 Care Act Aboriginal child placement principles — summons for orders for adoption and change of surname — 12 year old boy lives with proposed adoptive parents who have been caring for him since birth — birth parents oppose adoption — child consents to adoption — birth father discovered he was Aboriginal in 2017 — Aboriginality of child investigated by Secretary — Secretary opposed adoption as child benefiting from contact with birth family and connection with Aboriginal heritage — descent is sufficient for a child to be an Aboriginal child for purposes of s 4(1), (2) Adoption Act but child must still be descended from an Aborigine as defined in s 4 test — birth father is not an Aborigine for the purposes of the Act due to lack of evidence to meet components of s 4 test — order for adoption and order for change of surname approved.

Re Timothy [2010] NSWSC 524

Children — care and protection — administrative law — judicial review — grounds of review — jurisdictional error and procedural fairness — decisions of Children’s Court Magistrates — who may make application for interim order regarding placement — Aboriginal Care Circle.

Re Victoria and Marcus [2010] CLN 2

Children — care and protection — leave to bring an application to rescind a care order — application of Aboriginal and Torres Strait Islander Placement Principles — importance of encouraging and preserving the children’s Aboriginal cultural identity — children with special needs — autism.

[3-1020] Adoption

Last reviewed: Oct 2023

Department of Communities and Justice and Jake [2020] NSWChC 2

Adoption — child placed in a kinship foster care placement with the proposed adoptive parents after birth — no realistic prospect of restoration to parents — interim order allocating all aspects of Parental Responsibility to the Minister — Secretary filed a Care Plan proposing adoption — IRL not satisfied with permanency planning — found that adoption is premature and court cannot be satisfied the Care Plan addresses all the needs of the child — Plan not approved and Secretary invited to prepare a further Care Plan.

Department of Communities and Justice and the Stonsky Children [2019] NSWChC 8

Adoption — children placed with carers with a view to adoption — no realistic possibility of restoration to parents — Secretary proposed short-term care orders of parental responsibility to the Minister for two years with a view to adoption — parents opposed adoption — ILR contends that permanency planning is not achieved — proposed adoptive parents are highly regarded foster carers with extensive experience in caring for children in short-term, respite and emergency capacities as well as caring for children with delays or disabilities — adoption plan is real and not simply aspirational, not a case of a mere intention to adopt — unlikely adoption process will finalise within two years — Care Plan should place an onus on the Secretary to bring an application for rescission under s 90 Care Act if adoption is delayed or does not proceed — the permanency planning has not been appropriately and adequately addressed unless Care Plan has a mechanism to ensure a s 90 application is made — Secretary directed to prepare a different permanency plan.

Adoption of SRB, CJB and RDB [2014] NSWSC 138

Family Law Act 1975 (Cth) s 64B(2)(b) — Adoption Act 2000 ss 8, 59, 67(1)(d), 90, 91, 118 — children were removed from their birth parents’ care pursuant to a child protection order, on the grounds, inter alia, that they were living in an unsafe environment due to issues of domestic violence and substance abuse (including alcohol, cannabis and heroin) on the part of their birth parents — whether making of adoption orders clearly preferable to any other legal action which can be taken in respect of the care of the children — focus of the adoption order must be on the best interests of the child, not the wishes and aspirations of the adoptive applicants or birth parents — factors to consider as to whether adoption order preferable to other long-term orders — finding that the making of the adoption orders were clearly preferable to any other action which can be taken with respect to the care of the children.

[3-1040] Bias

Last reviewed: Oct 2023

Polsen v Harrison [2021] NSWCA 23

Application for recusal declined –– judge commented on role of plaintiff’s expert at conclave –– comments made during preliminary discussion as to amended pleading –– Test whether fair-minded lay observer might think judge might have pre-judged credibility of witness not satisfied.

JL v S, DFaCS [2015] NSWCA 88

Appeal unsuccessful application for leave to apply to rescind care orders — whether error of law on the face of the record or jurisdictional error established — whether District Court correctly applied provisions of the Care Act s 90 — whether judge biased in approach to assessing applicant’s case — whether there was a denial of procedural fairness — what are the duties of a judicial officer to an unrepresented litigant — relevance of international treaty obligations (United Nations Convention on the Rights of the Child) to exercise of discretion — whether judge placed excessive or too little weight on applicant’s evidence.

[3-1060] Care and protection

Last reviewed: Oct 2023

Y (a pseudonym) v Secretary, Communities and Justice (No 4) [2021] NSWDC 81

Care and protection — application by the Secretary, Department of Communities and Justice to set aside appellant’s subpoenas that seek production of documents — no legitimate forensic purpose identified — subpoenas oppressive and too wide — fishing — subpoenas set aside.

Department of Communities and Justice and Jacinta [2021] NSWChC 5

Section 71 Care Act — Secretary, the parents and the Direct Legal Representative (DLR) reached agreement to allow child to return home immediately — Magistrate refused to make findings and orders by consent — s 9(1) Care Act requires that in any decision the court makes, the safety, welfare and well-being of the child are paramount — parental responsibility allocated to the Minister for Families, Communities and Disability Services until the child attains 18 years of age.

CXZ v Children’s Guardian [2020] NSWCA 338

Care and protection — principles to be applied in determining whether person poses risk to safety of children under s 18 Child Protection (Working with Children) Act 2012 (NSW) — primary judge erred by finding tribunal failed to discharge its function — M v M (1988) 166 CLR 69 does not require each allegation of risk to be assessed by a three-step process — tribunal properly assessed whether evidence disclosed applicant posed a risk — leave to appeal granted.

Secretary, Department of Communities and Justice v B [2020] NSWDC 736

Care and protection — care order — appeal from Children’s Court to District Court by plaintiff Secretary — need for care and protection of child established — sexual assault of other child — perpetrator not clear — mother had drug and mental health issues — lack of insight into seriousness of the injuries — general principles applicable — appeal allowed.

A v Secretary, Department of Communities and Justice (No 4) [2019] NSWSC 1872

Care and protection — allegation father sexually abused daughter — both children removed from parents and placed in care of Minister — children at unacceptable risk of harm — the ground for care orders under s 71(1)(c) has been made out in relation to both children — orders made by the Children’s Court confirmed.

NU v NSW Secretary of Family and Community Services [2017] NSWCA 221

Care and protection — allegation father sexually abused daughter — appropriate test to be applied in cases of custody/ access to child — inability to make positive finding of abuse not ultimate determinative of unacceptable risk of harm — Browne v Dunn rule did not apply — no error of law demonstrated — summons dismissed.

Re Sophie (No 2) [2009] NSWCA 89

Care and protection — application for care order — child welfare — whether child in need of care and protection — child infected with a sexually transmitted disease — whether child was sexually abused by the father who had the same sexually transmitted disease — onus of proof — history of litigation chequered — appeal — father seeking an order in the nature of certiorari quashing orders upon the ground of an error of law on the face of the record — whether trial judge failed to place onus on the Director-General of proving sexual abuse on the balance of probabilities — summons dismissed.

Re Jayden [2007] NSWCA 35

Care and protection — review of interim care responsibility orders — interim order conferring parental responsibility of children on Minister for Community Services — serious issue to be tried as to whether final order should be made — Director-General of the Department of Community Services obtaining discharge of contact order to enable Minister to send children to New Zealand prior to final order — whether this amounts to an abuse of process — ss 69, 70, 70A and 72 Care Act considered — legal practitioners — parties to proceedings — whether legal practitioners appointed by the Children’s Court pursuant to s 99 Care Act to represent children the subject of proceedings should be named as parties to proceedings in the Supreme Court.

SB v Parramatta Children’s Court [2007] NSWSC 1297

Care Act ss 71, 106A — s 106A(1) obliges the court to admit any evidence adduced that a parent or care-giver of a child, the subject of a care application, has previously had a child removed from, and not restored to, their care and protection — presumption that the child, the subject of the application, is in need of care and protection — presumption under s 106A is not itself a ground for making a care order — the court must be satisfied there are grounds identified in s 71(1) before a care order is made — matter remitted to be heard and determined according to law.

Re Alistair [2006] NSWSC 411

Care and protection — finding child in need of care and protection — challenge to Magistrate’s decision to permit re-examination of evidence when considering placement — application res judicata/issue estoppel rejected — discretion to receive evidence miscarried — Magistrate when exercising discretion required to balance competing interests — In re B (Minors) Care Proceedings: Issue Estoppel [1997] 2 WLR 1 applied — pending criminal proceedings — appropriate remedy.

[3-1080] Care plans

Last reviewed: Oct 2023

JE v Secretary, DFaCS [2019] NSWCA 162

Appeal — s 91 Care Act — parental responsibility for eldest daughter allocated to her father, responsibility for younger daughter allocated to maternal grandparents — mother sought damages arising out of circumstances her children were removed from her care — DFaCS sought orders that proceedings be struck out in relation to younger daughter — at first instance damage proceedings dismissed and s 91 appeal dismissed for both children — application for judicial review of decision in s 91 appeal and leave to appeal dismissal of damage proceedings — denial of procedural fairness due to jurisdictional error dismissing proceedings relating to eldest child — dismissal order varied and s 91 appeal remitted to District Court for determination as it relates to the care orders with respect to eldest child — damages proceedings by mother dismissed on grounds of unreasonable delay and statement of claim did not plead a reasonable cause of action — summary of argument did not identify any error — application for extension of time to seek leave to appeal refused — no principle or matter of public importance to warrant reconsideration on appeal — leave to appeal refused.

DFaCS and Nicole [2018] NSWChC 3

Care Act s 71 — whether there is a realistic possibility of restoration — child is in need of care and protection — Secretary to prepare, file and serve Care Plan — case relisted for response to Care Plan.

DFaCS and the Slade Children [2017] NSWChC 4

Application to transfer case management from NSW to Victoria — parental responsibility allocated to grandmother — grandmother and children moved to Victoria — children listed in AVO as persons in need of protection — orders sought by Secretary that care orders be rescinded, parental responsibility transferred to Minister and then to Victoria — court does not have jurisdiction to hear s 90 application where children not present in NSW or who are subject to a report — risk of harm reports not filed, so court unable to exercise function of the Care Act — appeal dismissed for want of jurisdiction.

C v S, FaCS [2016] NSWDC 103

Care and protection — child placed in out-of-home care — placement into maternal grandmother’s care refused — refusal by Children’s Court to place the child in grandmother’s care because of the Office of the Children’s Guardian refusal to issue grandmother with the relevant clearance to work with children — reports from FaCS supported restoration to the grandmother — renewal of AVOs against child’s mother and abusive former spouse — orders of Children’s Court set aside — interim order for parental responsibility for the child to be allocated to grandmother — final orders to be made after FaCS prepares permanency plan.

[3-1100] Change in circumstances/rescission or variation of care plans

Last reviewed: Oct 2023

LZ v Secretary, Department of Family and Community Services [2019] NSWDC 156

Care Act s 90 application for leave to rescind orders — appeal from Children’s Court to District Court — no significant change in any relevant circumstances under s 90(2) — child secure in foster placement — child expressed wish to remain with foster parents — 3-month transition period for restoration too short — mother fails to understand damage done to child by being away from her for lengthy periods — appeal dismissed.

DFaCS and Bridget [2019] NSWChC 4

Care Act s 90 application for leave to rescind or vary previous care orders — father had drug addiction issues and history of criminal offending — mother is drug-free, maintains a safe home and is committed to contact with child — mother has separated from father — leave granted.

Re Jeremy (a pseudonym); DM v Secretary, Department of Family and Community Services [2017] NSWCA 220

Application for leave to vary care orders — significant change in any relevant circumstances — appellant mother of four children in the care of Minister — appellant sought orders of allocation of sole parental responsibility of two children — leave required for application s 90 Care Act — appellant entitled to have court properly investigate care situation — judge erred in law failing to apply provisions of Act — orders set aside, remitted to District Court for appeal.

FaCS v Kestle [2012] NSWChC 2

Application under Care Act for s 90 leave to vary or rescind care orders — relevance of arguable case for leave — consideration of Statement of Wishes by children — consideration of paramountcy principle in leave applications — discretion to restrict grant of leave to particular issue or issues — s 94(4) and granting of adjournments.

Re Campbell [2011] NSWSC 761

Application under Care Act for s 90 leave to vary or rescind care orders — significant change in relevant circumstances — “relevant circumstances” will depend upon the issues presented, but may not necessarily be limited to just a “snapshot” of events occurring between the time of the original order and the date the leave application is heard — realistic possibility of restoration — least intrusive form of intervention principle — Re Tracey (2011) 80 NSWLR 261 — proposal by carer for adoption.

S v Department of Community Services [2002] NSWCA 151

Section 61 Care Act — application for rescission or variation of a care order — must establish a change of “sufficient significance” to justify the consideration of an application for rescission or variation of the care order — Children’s Court approached the issue in a limited and unduly technical way, failed to take account of material considerations — leave to appeal granted.

[3-1120] Child Representatives/Independent Legal Representative (ILRs)

Last reviewed: Oct 2023

GR v Secretary, Department of Communities and Justice [2021] NSWCA 301

Three notices of motion in interlocutory proceedings — in substantive judgment, order for appointment of a guardian ad litem set aside (see GR v Secretary, Department of Communities and Justice [2021] NSWCA 157 at [3-1220]) — young person under legal incapacity not represented by either a tutor, guardian ad litem or legal representative — mother (appellant in substantive proceedings) proposed tutor be appointed — father opposed appointment — tutor selected by mother rejected as it would escalate conflict between parties — Independent Legal Representative (ILR) to be appointed — Crown Solicitor (i) to liaise with the Legal Aid Commission of NSW in order to effect ILR appointment; and (ii) to advise the parties of any proposal regarding appointment of a specific person as ILR — second and third notices of motion dismissed.

DFaCS and the Prince Children [2019] NSWChC 2

Leave application by Independent Legal Representative (ILR) of one child to vary or rescind care orders in relation to all 5 children — Minister for Community Services in NSW exercises parental responsibility for older children — all children reside in Qld with their mother — children remain subject to final orders made by NSW court — ILR for one child has standing to bring an application pursuant to s 90 Care Act for all siblings — NSW Children’s Court has jurisdiction to hear and determine an application pursuant to s 90 for variation or rescission of the orders.

DFaCS and Leo [2019] NSWChC 3

Application pursuant to s 90 by Independent Legal Representative (ILR) for leave to vary or rescind care order — Children’s Court made a Final order of parental responsibility to the Minister and no restoration to mother — agency designated to provide permanent placement failed to do so and explored restoration contrary to court’s decision — no alternative long-term care options identified by Community Services or agency — Leave is granted to ILR to bring an application pursuant to s 90.

[3-1140] Contact orders

Last reviewed: Oct 2023

SM v Director-General, Department of Human Services [2010] NSWDC 250

Contact orders — mother and her family have supervised contact for three hours each time on a total of five occasions per year in school holiday periods — supervision by the Director-General or her delegate — mother applied to increase frequency of contact with supervision by family members — if court decides that supervision is required, contact cannot be ordered without consent of supervisor — contact ought be supervised by Director-General or a person approved by her — appeal dismissed.

Re Hamilton [2010] CLN 2

Application to rescind a care order and restore one child to the father — application for restoration abandoned — application for a contact order sought instead — whether contact with the father is in the best interests of the children — father has a serious criminal record for sexual offences against children and for indecent exposure — children exposed to domestic violence between the parents — possible sexual abuse and sexual grooming of the children by the father — meaning of “unacceptable risk of harm” — meaning of “permanency planning” — no realistic possibility of restoration — whether permanency planning has been appropriately and adequately addressed — importance of maintaining contact between siblings who are not placed together — children with special needs — autism and post traumatic stress disorder.

Re Liam [2005] NSWSC 75

Contact orders — s 86Care Act — interim contact order made by Children’s Court — s 86 requires Children’s Court to not only consider whether there should be any contact, but also whether such contact should be supervised — contact cannot be ordered without the consent of the supervisor — supervised contact with child permitted for 1½ hours, once per week, upon the basis of mother’s undertaking given to the Children’s Court.

Re Helen [2004] NSWLC 7

Contact orders — child’s attachment to her mother is significant and is already formed and will not be broken by moving or by creating a contact regime in which its importance and significance is insufficiently recognised — balance the benefits and risks of contact with primary focus on child’s best interests — orders for supervised contact and telephone contact.

[3-1160] Convention on the Rights of the Child

Last reviewed: Oct 2023

Re Henry [2015] NSWCA 89

Judicial review — appeal from Children’s Court to District Court — whether the District Court correctly construed and applied the provisions of s 106A Care Act — challenge to Children’s Court order placing child under parental responsibility of Minister until aged 18 years of age — the court must assess, at the time the application is before it, whether there is a “realistic possibility of restoration”, that is to say, whether the “possibility of restoration is real or practical [and not] … fanciful, sentimental or idealistic, or based upon ‘unlikely hopes for the future’”: In the matter of Campbell [2011] NSWSC 761 (at [55]) — relevance of United Nations Convention on the Rights of the Child — what are the duties of a judicial officer to an unrepresented litigant.

Re Tracey (2011) 80 NSWLR 261

Application by mother for parental responsibility — Care Act — Convention on the Rights of the Child (CROC) — treaty obligations under the CROC may be a relevant consideration to the exercise of discretion in determining care application — judge erred in failing to take into account CROC Articles in exercising her discretion.

[3-1180] Costs

Last reviewed: Oct 2023

Y v Secretary, Department of Communities and Justice (No 7) [2021] NSWDC 477

Child care appeal dismissed in Y v The Secretary, Department of Communities and Justice (No 6) [2021] NSWDC 392 (see [3-1420]) — s 88 Care Act and s 98 Civil Procedure Act 2005 — application by the Secretary, Department of Communities and Justice for a compensatory specified gross sum costs order against the appellant — application based on the cost consequences of the inefficient, combative, non-compliant and time-wasting manner in which appeal was conducted by appellant father — exceptional circumstances under s 88 Care Act established — specified gross sum costs made in Secretary’s favour.

Re: A Costs Appellant Carer (a pseudonym) v Secretary, Department of Communities and Justice [2021] NSWDC 197

Appeal from decision of Children’s Court refusing appellant’s application for costs — Secretary, Department of Communities and Justice failed to meet the establishment criteria in proceedings in the Children’s Court — exceptional circumstances shown by the costs appellant within the meaning of s 88 Care Act.

Re A Foster Carer v DFaCS (No 2) [2018] NSWDC 71

Application for costs under s 88 Care Act — the appellant’s appeal costs to be paid by DFaCS due to exceptional circumstances — exceptional circumstances arose because DFaCS’s position was based on flawed care agency investigation report.

Application for costs under s 88 Care Act — application for costs to be paid to the carers by the paternal grandmother — whether there are exceptional circumstances to justify a costs order — application dismissed.

[3-1200] Experts’ reports

Last reviewed: Oct 2023

J & T v DCJ [2023] NSWDC 78

Care Act s 91 appeal by parents seeking restoration — trauma-informed approach to child care appeal — mother’s background included significant childhood trauma involving a history of incestuous rapes that occurred over a number of years, resulting in pregnancies and the birth of six children before she had reached the age of 16 years — two further children from her relationship with plaintiff father were also removed — departmental management of data on matters of child risk had a rigidity which could not be overridden by caseworkers and managers who came into possession of contrary information that ought to have served to dispel some crucial recorded departmental notions of risk — that rigidity perpetuated a risk assessment that was contrary to uncontroverted medical evidence and was not exposed at previous Children’s Court hearing — plaintiff father’s daughter made allegations of a sexual nature against her father — allegations incorrectly recorded as substantiated by the department — part of the Children’s Court clinician’s report lacks determinative weight due to reliance on these allegations — department erroneously reported that both parents had unmanaged mental health issues that needed a treatment plan — Children’s Court clinician's assessment as to plaintiffs' insights into mental health and child protection, understanding and acceptance of medical advice, physical disability, past parental instances of discordance and reactivity to service providers, safe and secure housing and mother’s Borderline Personality Diagnosis based on an outdated and incomplete assessment and do not form a reliable basis for refusing the parents’ claim for restoration — court does not accept Secretary’s submissions that the parents pose an unacceptable risk of harm to their children — realistic possibility of restoration and Secretary has not appropriately addressed permanency planning — department to prepare an Amended Care Plan.

Jones v Booth [2019] NSWSC 1066

Civil procedure — mental health — declaratory relief sought concerning qualifications of a psychologist to furnish a report in support of a s 32 Mental Health (Forensic Provisions) Act 1990 application — report rejected by magistrate as it was not a psychiatric report — report later accepted by different magistrate — application under s 32 later successful — type of report which may be appropriate will depend on particular case — court should consider the qualifications and expertise of author, together with report contents, to determine whether report should be admitted and what weight is given to it — conditions which fall within the definition of “cognitive impairment” are frequently reported on by psychologists — live controversy does not exist for grant of declaratory relief — declaration refused.

Department of Family and Community Services and the Jacobs children [2019] NSWChC 11

Care Act s 76(4) — supervision order made pursuant to s 76 — late filing of the supervision report — extension of time for filing of supervision report not permissible — finality of litigation and extinguishment of jurisdiction beyond date of the supervision order — parties to file draft Orders and matter relisted.

Secretary, Department of Family and Community Services v Hayward (a pseudonym) (2018) 98 NSWLR 599

Care Act ss 24, 29(1)(e), 29(1)(f)(ii) — s 29(1)(e) forbids use of compulsory process to produce or give evidence regarding contents of risk of significant harm report — no exception in criminal proceedings as s 29(1)(f)(ii) limits use to “proceedings relating to the report” — whether court in criminal case can compel disclosure of report makers’ identities — no power to order the Secretary to identify the maker of a report, nor to produce the unredacted reports, nor to provide information from which the identity of that person could be deduced — notice of motion dismissed.

Hayward v R (2018) 97 NSWLR 852

Care Act s 29(1)(d)(iii) — whether reports made to DFaCS admissible in criminal proceedings in Supreme Court — the phrase “in relation to” limits the scope of s 29(1)(d)(iii) to proceedings which affect the legal rights and interests of a child or young person in proceedings which concern their welfare — subpoena material which the applicant sought to admit is not admissible in the present proceedings in the Supreme Court — appeal dismissed.

R v Hayward [2017] NSWSC 1170

Care and protection — offences relating to physical abuse of a child — accused seeks to rely on subpoenaed material from the Department about mother’s history of inflicting injuries on the child/children — s 29 Care Act provides reports only admissible for limited proceedings in the Supreme Court — accused argued application to criminal proceedings in the Supreme Court — Second Reading Speech consulted and where reports are admissible intended to be “child welfare proceedings” — criminal proceedings do not fall within s 29(1)(d) even if the victim was a child — held s 29(1) report is not admissible in criminal proceedings in the Supreme Court.

[3-1220] Guardian ad litem

Last reviewed: Oct 2023

CM v Secretary, Department of Communities and Justice [2022] NSWCA 120

Appeal of CM v Secretary, Department of Communities and Justice [2021] NSWSC 1442 (at [3-1220]) — previously appointed GAL ceased her appointment — mother sought judicial review of appointment of GAL — unnecessary to make order that mother be legally represented before appointing GAL — ss 98, 101, 101AA Care Act and changes made by the Stronger Communities Legislation Amendment (Children) Act 2021 considered — no reason why the legislation would be construed on the basis that it was first necessary to make an order for legal representation before appointing a guardian ad litem — application dismissed.

GR v Secretary, Department of Communities and Justice [2021] NSWCA 267

Notices of motion concerning pending application for leave to appeal GR v Department of Communities and Justice [2021] NSWSC 1081 (see [3-1420]) — order sought by mother for tutor to be appointed and child be allowed to participate in appeal hearing directly and via his tutor — tutor may be appointed to act on behalf of a person under a legal disability who is an initiator of legal proceedings, whereas a guardian ad litem is appropriate representation for a person who is a defendant or respondent to proceedings — evidence required that proposed tutor consents to being appointed and does not have any interest in the proceeding adverse to the interests of the person under legal incapacity (UCPR r 7.18) — applicant has not identified the person she proposes to be appointed as tutor and there is no evidence of consent, nor understanding of what is involved in undertaking the role of tutor — order for the appointment of a tutor refused but the question of appointment of a legal representative or a guardian ad litem left open — see further GR v Secretary, Department of Communities and Justice [2021] NSWCA 301 at [3-1120].

GR v Secretary, Department of Communities and Justice [2021] NSWCA 157

Appeal — care proceedings — ss 98(2A), 100 Care Act — guardian ad litem appointed for a child and young person in separate proceedings — where a party to proceedings is incapable of giving proper instructions to a legal representative, s 98(2A) directs court to consider the discretionary factors in ss 100 or 101 before appointing a guardian ad litem — primary judge erred in adopting a mandatory construction of s 98(2A) and not addressing the discretionary considerations in s 100(1) when appointing a guardian ad litem — appeal allowed and previous orders quashed — see further GR v Secretary, Department of Communities and Justice [2021] NSWCA 301 at [3-1120].

CM v Secretary, Department of Communities and Justice [2021] NSWSC 1442

Order sought in court’s parens patriae jurisdiction to set aside appointment of guardian ad litem (“GAL”) — ss 98(2A) and 101 Care Act — in a separate hearing a GAL appointed for the mother under s 101 Care Act to assist the mother in conducting her appeal — mother is self-represented and does not wish to be legally represented — mother not capable of adequately representing herself within s 98(2A) Care Act — incapable of giving proper instructions to legal representative within s 101 Care Act, then an appointment of a GAL can be made — two step process: court must first go through the gateway of s 98 and make a judgment about whether the person is “capable of adequately representing…herself”; then court must make a separate judgment about whether the person is “incapable of giving proper instructions” to his or her legal representative — application dismissed.

GR v Department of Communities and Justice [2020] NSWSC 1622

Care Act s 98(2A) — Mother sought to remove Independent Legal Representative (ILR) and proposed a Direct Legal Representative (DLR) for child — application opposed by ILR — whether a guardian ad litem ought to be appointed for child — whether ILR should be removed and whether she should continue as a party — child does not have requisite capacity to understand and give instructions in legal proceedings, and understand legal ramifications — guardian ad litem must be appointed — ILR to take instructions from guardian ad litem and can be removed as a party to these proceedings if such an order is sought.

[3-1240] Identification of children in the media

Last reviewed: Oct 2023

Burton v DPP (NSW) [2021] NSWSC 1230

Application for a declaration that magistrate erred in determining s 105 Care Act was not constitutionally invalid — law prohibits publication of names of children and young persons connected with care proceedings — applicants allege s 105 breaches implied freedom of political communication — Comcare v Banerji (2019) 267 CLR 373 applied — slight burden on political communication made out — legitimate protective function of s 105 made out as there is high likelihood of irreparable damage due to inherently sensitive subject matter — burden consequently found to be justified — section is reasonably appropriate and adapted to advance its legitimate protective purpose — section is suitable, necessary, and adequate in its balance — held to be constitutionally valid — summons dismissed — appeal Burton v DPP [2022] NSWCA 242 dismissed.

Burton v DPP (2019) 100 NSWLR 734

Appeal of dismissal of proceedings — non-publication order — ss 7, 11, 12 Court Suppression and Non-Publication Orders Act 1998 — the order of the Children’s Court was not an interim order and therefore did require the place or period of its operation to be specified — leave to appeal granted.

[3-1260] Joinder

Last reviewed: Oct 2023

In re a Child [2022] NSWSC 671

Joinder application by paternal aunt for leave to appear in person in care proceedings — s 98(3) Care Act 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 — aunt does not have genuine concern — aunt’s position is her desire to assist her brother in dispute with mother — joinder would add an additional layer of complexity to proceeding — potential to increase stress on child — leave refused.

AB and JB v Secretary [2021] NSWDC 626

Appeal from order refusing joinder of maternal grandparents in child care proceedings — maternal grandparents have reasonable prospects of success and should be heard — refusal order set aside — leave granted for joinder.

EC v Secretary, NSW Department of Family and Community Services [2019] NSWSC 226

Care Act ss 91, 98(3) — appeal from the Presidential Children’s Court to Supreme Court of NSW — application by Barnardos to be joined to proceedings — meaning of “person” in s 98(3) — Barnardos has “genuine concern for the safety, welfare and well-being” of children — discretion exercised for Barnardos to be joined as a party as in best interests of children — s 98(3) not limited to “natural person” — appeal dismissed.

GO v Secretary, Department of Communities and Justice [2017] NSWDC 198

Joinder of person with genuine concern for the welfare of a child to care proceedings — appellant great-grandmother of child subject to care proceedings and carer of mother — leave to appeal decision of Children’s Court for joinder — magistrate erred in finding that appellant and mother held same position in care proceedings — leave granted to appellant to cross-examine and adduce evidence as to suitability as an alternative carer of child.

Department of Communities and Justice and Lara [2017] NSWChC 6

Application for joinder by carers under s 98(3) Care Act — genuine interest in child’s safety, welfare and well-being — unable to cope with behavioural difficulties — applicant’s Working with Children Check bar from historical allegation of sexual assault of a child — applicants do not have sufficient prospects of success — application for party status refused — application for joinder refused.

[3-1280] Jurisdiction

Last reviewed: Oct 2023

DN v Secretary, DCJ [2023] NSWSC 595

Plaintiff (mother) seeks to quash orders for want of jurisdiction under Care Act — parental responsibility under s 90 Care Act granted to carers — Aboriginal children — carers non-Aboriginal — plaintiff (mother) applied for contact orders — carers' visas expired and they returned to UK with children and remained there due to COVID — laws conferring jurisdiction are to be construed broadly particularly for the Care Act which requires a maximal, beneficial and practical approach — once final care order has been made, the Children's Court has jurisdiction — s 90 does not indicate that a jurisdictional fact, other than the existence of the final order, must be found — if the existence of a final care order is insufficient of itself to establish jurisdiction under s 90, the same result pertains due to proper construction of s 4(c) — a person who resides outside of Australia can be a suitable person under s 79(1) Care Act — s 9(1) paramountcy principle governs application of all other principles, including the Aboriginal and Torres Strait Islander principles in s 13.

Harris (pseudonym) v Secretary, Department of Communities and Justice [2021] NSWCA 261

Applicant sought declaration by Supreme Court that removal of children was unlawful due to defective warrant — care proceedings on foot in the Children’s Court — Children’s Court unable to grant declaration but able to determine same question as part of ascertaining its own jurisdiction — granting declaration would merely be an advisory opinion — leave to appeal refused.

JH v Secretary, Department of Communities and Justice [2021] NSWSC 1539

Supervisory jurisdiction — application for summary dismissal of application for review — challenge to interlocutory establishment decision of Children’s Court Magistrate — grounds for review are untenable and summons for judicial review reveal no reasonable cause of action — proceedings for judicial review summarily dismissed.

A v Department of Communities and Justice [2021] NSWSC 937

Amended summons sought 13 separate declarations with respect to four aspects of proceedings — summons did not concern real issues in dispute between the parties — attempt to re-litigate proceedings not in accordance with rules and procedures — abuse of process — no identifiable common questions of law or fact — proceedings dismissed.

A v Secretary, Family and Community Services (No 2) [2019] NSWSC 43

Judicial review — error on the face of the record — jurisdictional error — denial of procedural fairness — orders sought in relation to proceedings in Children’s Court for care and protection — orders of prohibition and declaratory relief sought in relation to proceedings still being heard in the Children’s Court — Supreme Court cannot resolve any factual issues unresolved in Children’s Court — basis for orders sought not established — no error in conduct of Children’s Court proceedings established — no jurisdictional error regarding provision of care plans — denial of procedural fairness in relation to the care plan not established — Supreme Court does not have power to direct removal of documents from Children’s Court file — orders refused — summons dismissed.

DFaCS and Amber [2019] NSWChC 10

Jurisdiction of Children’s Court — extension of time sought to file a s 82 report — the extension of time was made outside the 12-month period mandated in s 82(2)(a) — court may extend the date for the provision of the report, so long as that extension does not go beyond the 12-month period from the date of the Final Orders — court has no authority when the statutory time period has expired — parties to file any draft Minute of Order they wish court to consider within 14 days and the matter will be relisted.

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

Care Act ss 80, 83(7), 93, 107 — obligation on court not to conduct proceedings in adversarial manner — procedural fairness required adjournment where trial judge departed from case put by appellant — respondent sought to adduce further evidence— denial of procedural fairness — application refused — matter relisted for hearing in the District Court.

Bondelmonte v Bondelmonte (2017) 259 CLR 662

Children taken overseas by father in breach of parenting order — primary judge made interim order for children’s return pending further relocation orders — father’s appeal to the Full Court of the Family Court dismissed — father’s appeal to the High Court that the primary judge failed to take into consideration the views of the children in relation to the interim parenting orders — court not required to seek the views of the child but is required to consider any expressed view under s 60CC(3)(a) Family Law Act 1975 (Cth) — court not obliged to take into consideration the children’s views in the case of interim, temporary arrangements — parenting order may be made in favour of a parent of the child or some other person making interim orders in circumstances of urgency under s 64C Family Law Act — appeal dismissed.

DFaCS and the Eastway Children [2017] NSWChC 3

Mother sought rescission of final Care orders — Secretary of Department consented to exercise of jurisdiction by Family Law Court (FLC) — mother sought FLC parenting orders for shared parental responsibility and for children to reside with her — father applied to Children’s Court for varying contact arrangements but not to vary parental responsibility allocation — mother withdrew Children’s Court application — mother and Secretary sought dismissal of father’s application — matter is a private dispute not requiring involvement of the Care Act, the Children’s Court or the Department — FLC is the preferable forum — case dismissed.

Re Madison (No 2) [2015] NSWSC 27

Application to vary orders for parental responsibility — orders sought for specific financial assistance — orders sought to transfer proceedings from Children’s Court to NSW Supreme Court — Minister in better position than father to discharge parental responsibilities — father’s financial request beyond Ministerial responsibilities — Supreme Court should not intervene, unless in exceptional circumstances, in proceedings that are ongoing in a specialist Tribunal which has been established to hear them.

AQY and AQZ v Administrative Decisions Tribunal of NSW [2013] NSWSC 1028

Jurisdictional error — whether Administrative Decisions Tribunal of NSW has jurisdiction to review the decision of the Director-General of the Family and Community Services to not grant certain persons the responsibility for the daily care and control of the child — whether decision is one in relation to the preparation of a permanency plan or the enforcement of a permanency plan that has been embodied in, or approved by, an order or orders of the Children’s Court — need for court to make a finding that permanency planning has been adequately addressed and approved of before final orders made — ex tempore judgment — urgent matter — finding that the Tribunal had jurisdiction to entertain the application.

[3-1300] Language and culture

Last reviewed: Oct 2023

[3-1320] Non-accidental injury

Last reviewed: Oct 2023

SL v S, DFaCS [2016] NSWCA 124

Judicial review in the supervisory jurisdiction of the Supreme Court — challenge to Children’s Court maternal grandparent parental order — whether District Court applied correct provisions of the Care Act subject to relevant amendments in 2014 — whether error of law on the face of the record or jurisdictional error — child suffered life-threatening head injuries when with mother — mother diagnosed with juvenile myoclonic epilepsy — whether injuries were non-accidental — whether child in need of care and protection — mechanism of injuries unexplained – no realistic possibility of restoration — whether there had been failure to make an appropriate contact order — whether reasons adequate for permanency planning — role of independent legal representative in care proceedings.

[3-1340] Parens patriae

Last reviewed: Oct 2023

Re Leonardo [2022] NSWSC 1265

Infant in care of plaintiffs — Minister and Secretary pursuing transition plan for permanent placement with paternal uncle — application to restrain Minister from removing child — exceptional exercise of parens patriae jurisdiction of Supreme Court — child has been physically in the care of the plaintiffs for 15 months and appropriately cared for by them — maintain status quo in order for plaintiffs to be given written notification of the reasons for Minister’s decision should they seek to review decision — Minister restrained from removing child from his current placement with plaintiffs until further order.

GR v Secretary, DFaCSJ [2019] NSWCA 177

Care Act s 44 — parens patriae jurisdiction — 15-year-old boy with autism spectrum disorder and avoidant food intake disorders — medical intervention in hospital due to weight loss — DFaCSJ allocated parental responsibility for medical issues by Supreme Court and an interim care order until the boy turned 18 granted by the Children’s Court — parents applied to vary care order but application dismissed — court should exercise caution in summarily dismissing proceedings where parents self-represented and had an incomplete understanding of procedure — court has a responsibility to ensure some degree of instruction as to the process which was being put in place — when dismissing proceedings, judge did not consider whether orders made in Children’s Court were not in best interests of the boy and whether court was not dealing expeditiously with issue of continuing care when determining the best interests of the boy — leave to appeal granted.

S, DFaCS re “Lee” [2015] NSWSC 1276

Exercise of parens patriae jurisdiction — where orders in place for parental responsibility and secure accommodation — continued availability of jurisdiction where child soon to attain 18 years of age but is not capable of managing her affairs — importance of ability to detain and restrain child to ensure proper care — where guardianship order does not include powers to detain and restrain — where guardianship order does not provide adequate safety net as alternative to parental responsibility and secured accommodation orders — unwillingness to discharge court orders upon child’s attaining 18 years of age until satisfied appropriate replacement orders in place.

Re Tilly v Minister, FaCS [2015] NSWSC 1208

Parens patriae jurisdiction — application to prevent removal of child from temporary carer — carer accused of assaults against other children in her care — the presence of risk, as determined by the Children’s Guardian, an automatic bar to a person being engaged in child-related work — statutory obligation on FaCS to remove child — parens patriae power not capable of dispensing with statutory obligations — residual parens patriae power to remove child from Minister’s care in aid of statutory care responsibilities — court has power to make child ward of the court — best interest of the child in out-of-home care — where removal would undermine the child’s bonds with the temporary carer — where need to protect child from risk of harm — where exercising jurisdiction would circumvent statutory child protection regime — court (not without regret) did not exercise parens patriae jurisdiction.

TF v DFaCS [2015] NSWSC 694

Invocation of parens patriae jurisdiction of the Supreme Court — whether the Children’s Court had jurisdiction to make orders under s 4(a) and (c) Care Act — jurisdictional error — Children’s Court order quashed.

[3-1360] “Parent” definition

Last reviewed: Oct 2023

Department of Communities and Justice (DCJ) and Cara (a pseudonym) [2021] NSWChC 3

Application by ILR for a prohibition order under s 90A Care Act against placing an infant child with the mother in a residential rehabilitation facility — Secretary proposes to move the child to join the mother to evaluate prospects of restoration while the mother is in a supportive environment — mother argues prohibition orders cannot be made against her as she no longer has parental responsibility as required under s 3 Care Act definition of “parent” — consideration of Re Josie [2004] NSWSC 642 — Re Josie applies to prohibition orders under s 90A equally as it did to s 47 orders — court has jurisdiction to make a prohibition order against the mother, under s 90A, in her capacity as a parent notwithstanding the definition of “parent” in s 3 which says that a parent is “a person with parental responsibility” — s 90A applies to a broad category of persons, including a person from whom parental responsibility has been removed — court does have jurisdiction to make a prohibition order against the mother — practical effect of such a prohibition order will derogate from the Minister’s exercise of parental responsibility in respect of residence and have the effect of removing from the Secretary a placement option — application dismissed.

Secretary, DFaCS and Krystal [2019] NSWChC 6

Care Act s 3 definition of “parent” — biological father did not hold parental responsibility — Family Court Order placed parental responsibility with step-father after death of mother — child accused step-father of sexual abuse — Care Act does not provide a right of appearance to a parent unless parent holds parental responsibility — distinction between biological parents not holding parental responsibility and persons who hold parental responsibility in respect of a child, the latter has statutory definition of “parent” and former is excluded — biological father not entitled to appear as of right in proceedings — court satisfied on the balance of probabilities that biological father has a genuine concern for the safety, welfare and well-being of the child — biological father’s application for joinder granted.

S, DFaCS and the Marks Children [2016] NSWChC 2

Application that father is not the children’s “parent” — alternative application to exclude father from the proceedings — exceptional circumstances — allegations of domestic violence, sexual interference, abduction and threats to kill the children — father in immigration detention — father and legal representative not to be served with materials — father prohibited from having contact with the children — father found to be a “parent” for the purposes of these proceedings — compelling reasons that it is in the children’s best interests that the father be excluded from proceedings — father poses unacceptable risk to the children.

[3-1380] Permanency planning

Last reviewed: Oct 2023

Department of Communities and Justice and Murphy [2020] NSWChC 12

Child assumed into care as newborn — parent has drug and mental health issues — unacceptable risk of significant harm — no realistic possibility of restoration — permanency planning — a plan must be realistic, reasonable and achievable and not underdeveloped, vague or aspirational to satisfy ss 78A(1)(b), (2A) and 83(7A) — child is of Ethiopian and West African heritage — permanency plan must sufficiently identify or address cultural needs — permanency planning not appropriately and adequately addressed.

Department of Communities and Justice and Jack and Jill [2020] NSWChC 3

Guardianship — two children being cared for by maternal cousin who did not want an order of guardianship — mother died, father relinquished care of younger child — no realistic possibility of restoration — care plans suggest Department would like to progress towards guardianship in the future — ILR for the younger child opposes care plan because permanency planning has not been addressed — Department of Communities and Justice and Teddy [2020] NSWChC 1 applies — meaning of the expression “a permanency plan involving guardianship” is one that has guardianship as a necessary or integral part or result, there must be a reasonable degree of inevitability about a guardianship order being made at an appropriate time in the foreseeable future — the plans proposed are not plans involving guardianship as permanency planning must be addressed — Department directed to file new permanency plans.

BA v Secretary, Department of Communities and Justice [2019] NSWCA 206

Care Act s 91 — three children removed from parents and parental responsibility allocated to Minister — parents unsuccessfully appealed to District Court — no realistic possibility of restoration of children to either parent and permanent placement was determined to be in best interests of children — NSWCA has power of review in its supervisory jurisdiction pursuant to s 69 Supreme Court Act 1970 — no jurisdictional error nor any error of law on the face of the record in District Court — summons for judicial review dismissed.

[3-1400] Proof

Last reviewed: Oct 2023

Isles and Nelissen [2022] FedCFamC1A 97

Standard of proof for unacceptable risk of harm — child alleged sexual abuse by father — father charged but later withdrawn due to lack of specific evidence — primary judge found that he could not make a finding that father sexually assaulted child, but held an unacceptable risk exists which could only be mitigated through supervised time (Isles and Nelissen [2021] FedCFamC1F 295) — test for making findings of sexual abuse distinguished from findings of unacceptable risk of harm — standard of proof as to whether abuse has occurred in the past is determined on the balance of probabilities — s 140 Evidence Act 1995 (Cth) — an unacceptable risk of harm does not require civil standard of proof on the balance of probabilities — unacceptable risk of harm requires a predictive or prospective exercise not limited to findings of past fact, but also possibilities — M v M FC 88/063 (1988) 166 CLR 69 followed — three relevant factors to consider when assessing unacceptable risk of harm: whether there are facts that indicate risk, either present or future; magnitude of risk; and tools or circumstances that can adequately mitigate that risk — appeal dismissed.

DCJ and Janet and Xing-fu [2022] NSWChC 7

Standard of proof for unacceptable risk of harm — child alleged sexual abuse by stepfather — later retracted her complaint — whether stepfather presents an unacceptable risk — if an allegation of sexual abuse is made out/not made out on the balance of probabilities, court then assesses risk, without conflation — Isles and Nelissen [2021] FedCFamC1F 295 followed — standard of proof in assessing risk is not on the balance of probabilities, the court looks to possibilities — Isles and Nelissen [2022] FedCFamC1A 97 followed — court satisfied that there was no evidence of sexual abuse — no unacceptable risk — court finds there is a realistic possibility of restoration within a reasonable period of Xing-fu to his father — court made finding prior to hearing that realistic possibility of restoration of Janet and Xing-fu to their mother.

M v M FC 88/063 (1988) 166 CLR 69

Standard of proof for sexual abuse matters — wife’s allegation that the father sexually abused daughter — trial judge not satisfied that father had sexually abused the child but considered that there was a possibility that the child had been sexually abused by the husband — in the interests of the child the risk of abuse would be eliminated by denying access to the husband, including supervised access — appeal to the Full Court of the Family Court dismissed — appeal to the High Court for an order that the father be granted access to the child — paramountcy of the welfare of the child — whether the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child — High Court dismissed appeal — to achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

[3-1420] Realistic possibility of restoration

Last reviewed: Oct 2023

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

Summons for judicial review seeking to quash the orders made in KH v Secretary, Department of Communities and Justice [2021] NSWDC 498 — reasons of the primary judge do not form part of the record as they do not constitute an “ultimate determination” — District Court decision (realistic possibility of restoration of child to mother) not the “ultimate determination” — no more than a step towards an ultimate determination, and issues of parental responsibility, contact orders, and permanent care plans remain to be determined — no error of law disclosed — summons for judicial review dismissed.

GR v Secretary, Department of Communities and Justice [2022] NSWCA 153

Parental responsibilities allocated to Minister, Department of Communities and Justice until 18 years old — mother seeking to restore care — young person almost 18 years — insufficient prospects that alternative order would be made to justify granting leave to appeal — summons seeking leave to appeal dismissed.

Finn, Lincoln, Marina and Blake Hughes [2022] NSWChC 4

Application for supplementary Children’s Court Clinic Report — children separated from one another and have suffered ongoing abuse and neglect in care — no long-term foster carers available for any or all of the children — mother has started to take steps towards addressing issues that led to removal of children — need for courts to conduct holistic balancing exercise to assess realistic options for child — DCJ and clinician assessed no realistic possibility of restoration to mother — assessments undertaken before mother’s reported gains and when there was expectation of suitable long-term placement — mother being reconsidered for restoration — a further expert assessment is required — application granted.

Department of Communities and Justice and Jamzie [2022] NSWChC 1

Secretary commenced proceedings pursuant to s 61 of the Care Act — mother sought restoration of child — test in DFACS and the Steward Children [2019] NSWChC 1 (at [3-1420]) is too onerous and should not be applied — test in Department of Communities and Justice (DCJ) and Bloom [2021] NSWChC 2 followed — 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 — realistic possibility of restoration within 18 months.

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

Secretary sought stay pending completion of judicial review — KH v Secretary, Department of Communities and Justice [2021] NSWDC 498 found realistic possibility of restoration of child to mother — amended care plan ordered — Secretary seeking judicial review in Court of Appeal — motion by Secretary to stay District Court orders pending determination of judicial review application — stay granted.

GR v Secretary, Department of Communities and Justice [2021] NSWCA 267

Appeal GR v Department of Communities and Justice [2021] NSWSC 1081 (see [3-1420]) (see [3-1220] for application for a tutor) — three notices of motion concerning a pending application for leave to appeal — application to set aside subpoenas — orders made as production of material unduly burdensome and would not facilitate appeal — orders sought to allow child to live with mother or allow daily contact — despite acceptance into the National Disability Insurance Scheme, no basis to override the care orders in place — notices of motion dismissed.

GR v Department of Communities and Justice [2021] NSWSC 1081

Appeal from care order of Children’s Court — Application to set side Final Care Orders and restore child to mother’s care — 17-year-old child has Autism Spectrum Disorder, Selective Mutism and Avoidant Restrictive Food Intake Disorder — child hospitalised due to severe weight loss — no realistic possibility of restoration — the mother is incapable of cooperating with DCJ or carers and has not accepted nor addressed the issues that gave rise to her child’s initial assumption to care — ongoing unacceptable risk of harm — nothing in evidence to warrant departure from orders of the Children’s Court — appeal dismissed.

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

Appellant father sought restoration of child following removal on account of his violence — disrespectful behaviour of appellant in court — referral to the Attorney-General for consideration of appellant’s disrespectful behaviour (s 200A District Court Act 1973) — parental unfitness found — appeal dismissed.

Department of Communities and Justice and Bloom [2021] NSWChC 2

Application by father for restoration — 7-year-old child is in Aboriginal kinship care — mother has mental health issues and alcohol abuse and concedes child should not be restored to her, and supports the proposed permanent placement with current carers — the phrase “a realistic possibility of restoration” is summarised at [173]:

  • 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

— no realistic possibility of restoration of the child to either parent — Permanency Planning for the child is appropriate and adequate — father’s application under s 90 Care Act dismissed — Final Care orders allocating parental responsibility for the child to the Minister.

Secretary, Department of Communities and Justice and Fiona Farmer [2019] NSWChC 5

Application by father for restoration under s 83(4) Care Act — mother has mental health issues which affect her ability to parent — father demonstrated lack of understanding of mother’s health incapacity and failed to protect child — father has separated from mother — risk is minimal and is capable of being addressed — realistic possibility of restoration to father within a reasonable period — Secretary to prepare a different permanency plan involving restoration.

DFaCS and the Steward Children [2019] NSWChC 1

Application by father for restoration within a reasonable period under s 83 Care Act — “within a reasonable period” clarified — parent must have commenced a process of improving his or her parenting and that there has already been some significant success on the part of the parent which enables a confident assessment that continuing success might be predicted — AVO restricting father from having any contact with his children or the mother — no realistic possibility of restoration of children to mother or father.

Re Tanya [2016] NSWSC 794

Care and protection — child with Down’s syndrome and intellectual disability — whether child in need of care and protection — restoration to mother not realistic possibility given relationship with a known paedophile — restoration to father realistic possibility.

Re M (No 8) [2016] NSWSC 641

Appeal by mother for leave for rescission or variation of orders under s 90 Care Act — mother did not demonstrate that her conduct was likely to change in a way that would justify the court exploring the questions raised — application dismissed.

Re M (No 6) [2016] NSWSC 170

Appeal of care orders made by a Presidential Children’s Court — Five children from three fathers removed from mother’s care — Children’s Court orders granted parental responsibility of the three youngest children to children’s fathers — whether realistic possibility of restoration to mother — mother pursued a peripatetic lifestyle, alienation from the fathers and her family, physical neglect, poor relationship with her children and a poor attitude to the DFaCS — mother not demonstrated that she had full insight into her situation — order for a rescission or variation of the care orders refused.

S, DFaCS and the Harper Children [2016] NSWChC 3

Mother applied for restoration under Care Act — Secretary, DFaCS proposed care plan restoring children to their father — unacceptable risk of harm test — allegations mother deliberately injected fecal matter into eldest child via an intravenous line — mother poses an unacceptable risk of harm to children — no realistic possibility of restoration of the children to their mother — realistic possibility of restoration to their father.

[3-1440] Short-term orders

Last reviewed: Oct 2023

Department of Communities and Justice and Teddy [2020] NSWChC 1

Care Plan to place child permanently with paternal aunt and uncle who have cared for child on an interim basis since birth — no realistic possibility of restoration to either of the parents — parents and ILR oppose making a short-term order which is proposed in Care Plan — permanency plan does not include guardianship, it merely proposes to consider guardianship in six months’ time — two conditions precedent to the making of a guardianship order: the consent of the proposed guardians, and a positive guardianship assessment — held that permanency planning has not been appropriately and adequately addressed and Secretary invited to prepare and file a further Care Plan.

[3-1460] Unacceptable risk

Last reviewed: Oct 2023

Re Benji and Perry [2018] NSWSC 1750

Care and protection — Children’s Court ordered children to be returned to their carers — “unacceptable risk of harm” test in M v M (1988) 166 CLR 69 — s 9(1) Care Act — necessary to balance possibility of harm if children are returned to their carers with probability of psychological harm if they are not returned — application dismissed.

AA v DFaCS [2016] NSWCA 323

Care and protection — whether actions of DFaCS under Care Act valid — father charged interstate but not convicted of indecent and sexual assault involving a child under 12 years — risk of harm report about the father’s alleged history of sexual assaults — risk of violence alerts — mother’s three older children from a former marriage assumed into care and subject to an emergency care and protection order — high risk birth alert issued for impending birth of child and any future children — whether DFaCS’s assumption of care order and the high risk birth alert valid — DFaCS case in totality conveyed a serious risk of harm — parents did not establish grounds for relief — allegations of misconduct against DFaCS officers not found — DFaCS not motivated by ill-will but acted in the children’s best interests.

DFaCS re Eggleton [2016] NSWChC 4

Application under Care Act — application of the unacceptable risk of harm test — parental history of alcohol and drug abuse — accidental death of younger sibling — realistic possibility of restoration — strong and positive attachment between child and parents — magnitude of risk not sufficient to meet the threshold for unacceptable risk of harm.

Re June [2013] NSWSC 969

Application by foster carers challenging decision of Children’s Court — whether magistrate erred in failing to admit relevant evidence — need to weigh advantages of admitting probative evidence against disadvantages of admitting improperly obtained evidence — whether magistrate failed to comply with s 9(2)(c) Care Act — whether magistrate failed to properly apply s 79(3) — whether foster carers were entitled to an opportunity to be heard on matters of significant impact — what constitutes an opportunity to be heard — s 87 — where an order may have a significant impact on a person who is not a party to proceedings, there is a need for that person to be given an opportunity to be heard on that issue — ex tempore judgment — whether foster carers have standing to seek relief under s 69 Supreme Court Act 1970 — if not, whether manifest defects in hearing before and reasons of Children’s Court constitute “exceptional circumstances” — whether Supreme Court may, in the exercise of parens patriae jurisdiction, grant relief under s 69 — order quashed and matter remitted to the Children’s Court to be heard by a magistrate other than the magistrate who made the order that has been quashed.

[3-1480] Unexplained injury

Last reviewed: Oct 2023

DCJ and Harry [2023] NSWChC 5

Interim contact order to facilitate overnight supervised contact between parents and child — 1-year-old infant sustained bilateral multi-layer retinal haemorrhages and a subdural haematoma consistent with injuries sustained by infants who have been shaken — removed and placed with paternal grandmother and paternal aunt — realistic possibility of restoration to parents — criteria outlined in DCJ and Evie and Grace [2023] NSWChC 1 followed — benefit in increasing contact with parents to transition them to become primary attachment figures — benefit outweighs any potential harm.

DCJ and Evie and Grace [2023] NSWChC 1

Twin infants had healing fractures at multiple sites — most probable cause was the application of excessive force by a parent — parents unable to explain injuries and children were assumed into care and placed with their maternal great aunt — non-exhaustive list of factors in assessing safety at [53] — parents are intelligent, educated and engaged with services as recommended by the Department — parents have made the children available for medical assessments and reviews and have personally undertaken medical tests in search of a medical explanation for the injuries — parents have both attended psychologists to address concerns about their capacity to support their children — exposure of the harm will cause both parents to reflect on the way they have handled the children and to closely observe the other when handling the children — children’s maternal uncle and grandparents will remain connected to the children and are alert to any signs of physical distress — children attend childcare three days each week and are supported by a nanny — risk of harm has been sufficiently mitigated such that the children are likely to be safe in the care of their parents — realistic possibility of restoration of children to their parents.