Secretary made assessment that there is a realistic possibility of restoration — unsatisfactory case management — funded service providers — Children’s Court Clinic recommendations — unacceptable risk of harm — no realistic possibility of restoration of children to mother or father.

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.

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.

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.

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.

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.

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 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.

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.

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.

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.

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]:

— 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.

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.

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.

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.

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.

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.

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.

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.

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.