Shapkin v Secretary, Department of Communities and Justice

1. [1]

   LEEMING JA: Mr Vasiliy Shapkin seeks an order quashing the decision of the District Court dismissing his appeal pursuant to s 91 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) from a decision of the Children’s Court dismissing his application under s 98(3) of that Act to appear in pending proceedings in the Children’s Court commenced by the Secretary under s 61 of that Act, seeking orders that, relevantly, a child be placed in the care of the Minister. That is to say, this is a further challenge by Mr Shapkin, after twice having been heard on the merits, to the refusal of his application to be participate in the hearing of the Minister’s application for a care order.

2. [2]

   The essence of Mr Shapkin’s challenge is easily stated. Mr Shapkin is not a biological parent of the three year old boy who is central to this litigation, although the mother told him that he was and at one stage he believed her. There is a dispute as to the extent that Mr Shapkin has been involved in the boy’s upbringing to date, but the District Court found in September 2024 that “he has had very, very little contact” in the previous 2 and a half years, and “no contact in the last 12 months”. It is not suggested that Mr Shapkin has played any significant role in the boy’s upbringing in the ensuing 8 months. Mr Shapkin had claimed that he was the “psychological parent” of the boy, but that claim was rejected, and he does not for present purposes seek to cavil with that. Nonetheless, he maintains, and the District Court found, that he has a genuine concern for the safety, welfare and well-being of the boy, and he maintains that either his genuine concern entitles him to participate, or alternatively the District Court’s refusal of his appeal discloses legal error warranting its setting aside.

3. [3]

   I do not accept Mr Shapkin’s primary submission, which is that he is entitled to appear in the proceedings brought by the Secretary in the Children’s Court. However, I do accept his submission that the reasons of the District Court disclose error of law on the face of the record, in that on a fair reading they reject Mr Shapkin’s claim that he was a psychological parent, but treat that as dispositive of the appeal. My conclusion is consistent with the stance advanced in this Court by the Secretary, who conceded error. Contrary to the submissions of the independent legal representative of the child, I would not withhold relief on discretionary grounds, either because of delay or futility. That said, a deal of delay has been caused by Mr Shapkin, and there is absolutely no guarantee that when the appeal is determined in accordance with law, there will be any different outcome. However, I am not convinced that his appeal will be wholly unsuccessful, and thus it is necessary for the District Court to determine it according to law.

Background

1. [4]

   The proceedings pending in the Children’s Court now concern two girls and one boy, who are now aged 10, 6 and 3 respectively, none of whom can be named or identified by reason of s 105 of the Act. The second respondent (who has played no active part in the litigation in this Court) is the mother of all three children. The mother is represented in the Children’s Court, and an independent legal representative has been appointed for the boy.

2. [5]

   Mr Shapkin appeared by a solicitor in the Children’s Court, but represented himself in the District Court and in this Court. He is admitted as a legal practitioner in New Zealand and in this State, although he does not have a practising certificate.

3. [6]

   Mr Shapkin is the biological father of none of the children. At the time the Children’s Court dismissed Mr Shapkin’s application, the proceedings involving the boy were consolidated with proceedings involving the daughters. Mr Shapkin’s application relates only to the boy. Pursuant to an interim order made on 16 February 2024, the boy has been placed under the parental responsibility of the Minister. The final hearing of the Secretary’s application in the Children’s Court has been adjourned pending the resolution of Mr Shapkin’s application.

4. [7]

   The Court was told without objection that there has been a final hearing of the Secretary’s application in relation to both daughters. Mr Shapkin does not assert any entitlement to be heard in relation to them. However, there has not to date been a final hearing of the Secretary’s application in relation to the boy.

5. [8]

   When judgment was reserved at the conclusion of the adjourned hearing in this Court on 15 April 2025, the position was that the Children’s Court was proposing to deliver judgment in relation to the daughters on 1 May 2025, with the application in relation to the boy being listed for mention on 17 April 2025. It was also common ground that, notwithstanding the obligation in s 94 that all matters before the Children’s Court proceed as expeditiously as possible, nothing would occur in the immediate aftermath of that directions hearing, irrespective of the outcome of the proceedings in this Court.

Reasons of the District Court

1. [9]

   Mr Shapkin initially applied to the Children’s Court to be heard in the proceedings pending in that Court. His application was promptly refused. Mr Shapkin then appealed, pursuant to s 91 of the Act.

2. [10]

   The District Court heard argument over half a day, mostly from Mr Shapkin. Although her Honour was prepared to give reasons after lunch, she deferred to the preference of the Secretary and gave an oral judgment the following day. Her Honour’s reasons form part of the record: Supreme Court Act 1970 (NSW), s 69(4); cf Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58.

3. [11]

   The primary judge explained the procedural history as follows:

4. [12]

   Her Honour then summarised the factual background (the details of which need not be recounted in these reasons), observing that “one of the reasons [the proceedings] had not been concluded is Mr Shapkin’s application and the current appeal” and adding that “These children have had a tumultuous infancy and childhood and they are entitled to know where they are going to live and with whom they are going to live”. Her Honour then observed that nowhere in any of the history, involving the police, the contact visits and the case workers was Mr Shapkin mentioned. Nor was he mentioned in the provisional domestic violence order against the mother.

5. [13]

   The reasons continued:

6. [14]

   Her Honour observed that the photographic evidence (all of which was undated) said nothing more than that Mr Shapkin had had physical contact with the boy on various occasions. Her Honour added:

7. [15]

   After referring to the paramountcy of the safety, well-being and welfare of the child, her Honour turned to s 98(3), and reproduced portions of the judgment of Hammerschlag CJ in Eq in Re A Child [2022] NSWSC 671. Her Honour observed that Mr Shapkin was not the “legal father”, which is to be understood as his not having been a person with parental responsibility and thus not entitled to be heard under s 98(1), and then turned to s 98(3) and the concept of psychological parenthood. After referring to Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21 at [29], her Honour said, by reference to a decision of the Children’s Court, that the test for determining psychological parent status included the following factors:

8. [16]

   The penultimate paragraph, emphasised above, was prominent in all parties’ submissions. It will also be seen that a deal of attention was given in the dispositive passages of her Honour’s reasons to Mr Shapkin’s submission that he was the psychological parent of the boy.

9. [17]

   Statute grants no further right of appeal. Accordingly, the principal issue in this Court is whether the District Court’s decision discloses jurisdictional error or error of law on the face of the record.

Section 98

1. [18]

   Section 98 is the provision giving rise to the litigation. That section provides:

2. [19]

   Although Mr Shapkin at one stage had an intimate relationship with the mother, at no time did he have parental responsibility for the boy. Accordingly, he could not fall within s 98(1), and his application was made under s 98(3).

3. [20]

   The following five propositions flow directly from s 98.

4. [21]

   First, s 98(1) identifies four classes of persons (the child or young person, those having parental responsibility for the child or young person, the Secretary and the Minister). Each of those persons “may appear in person or be legally represented” in proceedings in the Children Court. Section 98(3) identifies a further class of persons (any person who, in the opinion of the Children’s Court, has a genuine concern for the safety, welfare and well-being of the child or young person). Such persons “may, by leave of the Children’s Court, appear in person or be legally represented …”

5. [22]

   Secondly, the word “may” in s 98(1) connotes an entitlement as of right, rather than something which is the result of the exercise of a discretion. That said, the entitlement is subject to the Children’s Court forming the opinion in s 98(2) that a person is incapable of representing himself or herself. In that circumstance the entitlement to appear is qualified by an obligation to appear by a legal representative.

6. [23]

   Thirdly, the formation of an opinion that a person has a genuine concern for the safety, welfare and well-being of the child or young person is a precondition of the exercise of the power conferred by s 98(3). It is not possible lawfully to reach the conclusion that leave should be granted pursuant to s 98(3) without first having formed the opinion that the applicant has the requisite genuine concern.

7. [24]

   Fourthly, subsection (3) refers to “any other person”. The section is to be read as a whole, and thus “any other person” is to be understood as a person other than someone who falls within the four classes of persons identified in s 98(1). The critical difference between the persons falling within s 98(1) and “any other person” falling within s 98(3) is that the entitlement to participate on the part of the latter but not the former is qualified by the words “by leave of the Children’s Court”.

8. [25]

   The foregoing were not especially contentious. In contrast, the parties exchanged substantial submissions on whether the fact that the Court has formed the opinion that an applicant has a genuine concern for the safety, welfare and well-being of the child or young person entitled the applicant to an order under s 98(3).

9. [26]

   Initially, Mr Shapkin appeared to accept that there was a discretion to be exercised, even if the court formed the opinion that an applicant had a genuine concern for the safety, welfare and well-being of the child, but then confirmed that any discretion was not distinct from the opinion that the applicant held a genuine concern:

10. [27]

    Mr Shapkin relied on the reasons of Hammerschlag CJ in Eq in In re a Child to the effect that there was a single discretion:

11. [28]

    Mr Shapkin continued:

12. [29]

    Many considerations point against the construction for which Mr Shapkin contends being the proper construction of s 98(3).

13. [30]

    The starting point is the text. Subsection (3), in contradistinction with subsection (1), includes the words “by leave of the Children’s Court” between “may” and “appear in person in the proceedings”. If Mr Shapkin’s construction were correct, those words would be unnecessary. The words “by leave of the Children’s Court” in s 98(3), which are conspicuous by their absence from s 98(1), should be given work to do, in accordance with the ordinary principles of construction: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [71]. The entitlement to appear conferred upon persons who engage s 98(3) is a matter for the grant of leave by the Children’s Court, as the result of an exercise of discretion. There is nothing to suggest that the grant of leave is merely a rubber stamp, invariably to be given once the opinion which is the precondition to the power being available is held.

14. [31]

    This tends to be confirmed by s 98(2). Subsection 98(2) qualifies subsection (1), as is plain from the word “However”. It makes it clear that even persons falling within one of the four classes identified in subsection (1) who are entitled to appeal may nonetheless be required to appear by a legal practitioner. Subsection 98(3) refers to “any other person”, which is apt to refer to all persons other than those identified in subsection (1). Acceptance of Mr Shapkin’s submission gives rise to the following difficulty. Suppose the person does not fall within subsection (1), is found to have the requisite genuine concern, but is not capable of adequately representing himself or herself. On the ordinary meaning of the section read as a whole, the grant of leave could be qualified by insisting that the person appear by a legal practitioner. However, on Mr Shapkin’s construction, the person is entitled to appear. It cannot be the case that persons with parental responsibility who are incapable of adequately representing themselves may be obliged to appear by a legal practitioner, but persons who are do not have parental responsibility who have a genuine concern are entitled to appear in person even if incapable of representing themselves. Thus acceptance of Mr Shapkin’s submission either results in an absurdity, or else it is necessary to conclude that subsection (2) qualifies not only subsection (1), but also subsection (3). But that is somewhat strained, to say the least, because it would be natural to place subsection (2) at the end of the section if it qualified the entirety of the section. Further, subsection (3) refers to “any other person”, and that is apt to mean any person other than the persons identified earlier in the section, including subsections (1) and (2).

15. [32]

    I do not say that s 98(2) is decisive. But it would be necessary to give it a somewhat strained meaning if s 98(3) is not given its ordinary meaning and is read as Mr Shapkin invited the Court to read it.

16. [33]

    Turning from text to purpose, it is easy to contemplate cases where many people have a genuine concern for the safety, welfare and well-being of the child or young person. The child may have numerous relatives all of whom might individually satisfy the test. But it is tolerably clear that if, say, a step-brother has been granted leave to appear, it would be strange if a second, third and fourth step-brother were each entitled also to obtain a grant of leave to appear, even if they had nothing different to say from their siblings. There may also be social workers, teachers, religious instructors, neighbours and others with a genuine concern. It is impossible to see why the purpose of the legislation would be promoted by an obligation to hear from a potentially large class of people each with a genuine concern for the child.

17. [34]

    As may be seen from the above, Mr Shapkin sought to rely upon Supreme Court authority, to which I now turn.

EC v Secretary and In re a Child

1. [35]

   Divergent views have been expressed at first instance in this Court on the construction of s 98(3). It should be said immediately that the primary judge followed the most recent decision of the Supreme Court. Even if her Honour were not bound by that decision, that was an appropriately prudent course to take (see P Herzfeld and T Prince, Interpretation (3rd ed, Lawbook Co 2024), pp 745-746 on whether the District Court is bound by decisions of the Supreme Court constituted by a judge sitting in a Division).

2. [36]

   In EC v Secretary, NSW Department of Family and Community Services [2019] NSWSC 226, Sackar J considered whether the organisation Barnardos Australia was a person within the meaning of s98(3), finding that it was, notwithstanding that it could not be given parental responsibility under s 79(4A), on the basis that a state of mind of an employee or agent could be attributed to the corporation. Having concluded that Barnardos Australia held the requisite genuine concern, his Honour turned, in a separate section of his reasons, to whether the discretion should be exercised, and addressed a variety of submissions at [77]-[88], including rejecting the proposition that the independent legal representative could be “the only true voice for the children” noting that the wishes of young children are complex and may be inferred from a variety of sources and evidence, and raising the question of delay and whether leave should be granted conditionally.

3. [37]

   That is to say, Sackar J clearly separated the reasoning concerning the opinion of genuine concern from the exercise of discretion.

4. [38]

   The most recent decision of the Supreme Court on s 98(3) is the judgment of Hammerschlag CJ in Eq in In re a Child [2022] NSWSC 671, which appeared to take a different approach. It states at [8]-[11]:

5. [39]

   The independent legal representative provided helpful submissions on what Hammerschlag CJ in Eq had regarded as a divergence in approach to s 98, including that they were not significant:

6. [40]

   I substantially agree with the thrust of those submissions. Contrary to Mr Shapkin’s submission, it is not sufficient that an applicant seeking leave to appear under s 98(3) establish that he or she has a genuine concern for the safety, welfare and well-being of the child or young person. Nor (to be precise) is it sufficient that the applicant persuade the court to form the opinion that he or she has a genuine concern for the safety, welfare and well-being of the child or young person. As both Sackar J and Hammerschlag CJ in Eq observed, the formation of such an opinion is a necessary precondition to the exercise of the discretionary power to grant leave to appear. But contrary to Mr Shapkin’s submission, the formation of such an opinion does not without more entitle the person to a grant of leave. Nothing in the reasons of Hammerschlag CJ in Eq supports that conclusion, and to the contrary, his Honour made it clear that an exercise of discretion was involved.

7. [41]

   However, I respectfully disagree with the proposition in his Honour’s reasons that the approach adopted by Sackar J was incorrect and that the Act requires a single evaluative exercise which will incorporate within it a determination of whether the applicant holds the requisite opinion and a determination of whether the applicant should be granted leave.

8. [42]

   It is open to a Court to determine an application under s 98(3) by a single process, in which the Court both forms the opinion and exercises the discretion. If the discretion is exercised favourably, then the reasons should make it clear that the opinion which is the precondition of the exercise of power is held, and explain why that is so. If the discretion is exercised unfavourably, it would be desirable for the reasons to explain whether that is because the court did not hold the requisite opinion, or for other reasons, notwithstanding the court being of the opinion that the applicant held the requisite opinion.

9. [43]

   However, it is also open for the Court first to form the opinion of genuine concern, and then separately to exercise a discretion. As Hammerschlag CJ in Eq observed, many of the relevant circumstances will relate to both aspects. However, as Sackar J’s reasons make plain, they are conceptually different, and statute mandates that the power to grant leave only be exercised if the Court forms the opinion. There may also be occasions where quite different considerations bear upon the formation of the opinion and the exercise of discretion. It may for example be pellucidly clear that an applicant has the requisite genuine concern, but can add nothing to what persons already participating in the hearing are saying. It may also be clear that an applicant has a genuine concern, but cannot represent himself or herself; in such a case the matters bearing upon any grant of leave may be quite distinct from the matters bearing upon his or her genuine concern. There may also be cases where the applicant has a genuine concern but it is not in the interests of the child to permit that person to appear.

The dispositive reasoning of the District Court

1. [44]

   It will be recalled that in dismissing Mr Shapkin’s appeal, the District Court judge addressed the evidence which had been adduced bearing upon whether Mr Shapkin was a psychological parent, and then said:

2. [45]

   Mr Shapkin contended that on a fair reading of the reasons, the rejection of Mr Shapkin’s claim that he was a psychological parent was treated by the District Court as dispositive of the appeal. He noted that no separate reasons were given dismissing his appeal. He said:

3. [46]

   That submission referred to the written submissions supplied in advance of the hearing. Mr Shapkin, in short submissions in advance of the hearing, had maintained that there was a misapplication of the statutory test in determining the application merely on the basis of whether he was a psychological parent, when s 98(3) permits “any [other] person” to be granted leave to appear.

4. [47]

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

5. [48]

   However, in written submissions also filed in advance of the hearing, the independent legal representative maintained that the District Court made no jurisdictional error or error of law on the face of the record, and invited this Court to exercise its discretion to withhold relief.

6. [49]

   The independent legal representative of the child emphasised the absence of concern for the boy, the tenuousness of Mr Shapkin’s relationship with the boy, and the interruptions to the substantive proceedings caused by the litigation, and contended that they informed the exercise of discretion to refuse leave.

7. [50]

   I agree that the tenuousness of Mr Shapkin’s connection bears upon the discretion to grant leave. However, it is also important that the application under s 98(3) not be converted into a mini-hearing of the trial. It will not necessarily be possible at the stage at which a person applies under s 98(3) to express any view as to the ultimate prospects of orders being made in favour of the person. Moreover, s 98(3) permits “any other person” to be heard, and that may include persons who do not seek, or would have no prospect of obtaining, a care order.

8. [51]

   But my main reason for rejecting the submissions of the independent legal representative, insofar as they contend there is no error on the face of the record, is my conclusion that when the reasons are read fairly and as a whole, the District Court dismissed the application because her Honour was not satisfied that Mr Shapkin was a psychological parent. Her Honour framed Mr Shapkin’s application as an appeal from the dismissal of his application “to be joined to the proceedings as the psychological father of [the child]” and concluded her reasons with the finding that he was not the psychological father. It is also clear from the material before that Court that Mr Shapkin was not advancing an “all-or-nothing” case, whereby he accepted that his application would fail unless the Court accepted his submission that he was a psychological parent. That submission was prominent in his case, but it fell short of being the only submission advanced.

Discretion

1. [52]

   The independent legal representative also relied on discretion. The independent legal representative said that Mr Shapkin bore some responsibility for the error of the District Court, because he introduced the notice of psychological parent and “made a central focus of it”. A second reason was said to be the underlying merits of the appeal. I understood this to mean in fact the underlying poor prospects of Mr Shapkin gaining the benefit of orders for parental responsibility, because the submission turned on the “tenuous relationship” between Mr Shapkin and the child, especially the lack of inquiries following the child’s removal from the care of his mother. The submissions continued:

2. [53]

   The premise of the submissions on discretion is that a legally erroneous decision has been made adverse to Mr Shapkin, but nonetheless he should not be granted any relief. That is a relatively high bar.

3. [54]

   One reason for that course is that no other outcome was possible. I do not accept that the apparent weakness of Mr Shapkin’s ultimate claim for a care order is a reason for denying him the relief to which he is otherwise entitled. As mentioned above, persons who do not seek, or who on no account will ever be entitled to a care order may nonetheless be heard pursuant to s 98(3).

4. [55]

   Delay falls into a different category. Delay is important, because statute insists that proceedings in the Children’s Court be conducted expeditiously, and as the primary judge eloquently observed, it was important for the dispute concerning the care of the three siblings involved in this litigation to be resolved as soon as possible. For that reason, prominent in the submissions made by the independent legal representative of the boy was discretionary refusal of relief because of delay which, so it was said, was attributable to Mr Shapkin. In order to resolve these submissions, it is necessary to provide a fuller account of what has occurred to date.

5. [56]

   Until the litigation was commenced in this Court, the applications were addressed relatively promptly. Mr Shapkin’s application was heard and determined by the Children’s Court within a week of its being filed. His appeal to the District Court was filed on 17 June 2024, heard on 9 September and dismissed on 10 September by her Honour Judge Olsson SC DCJ. Mr Shapkin’s summons seeking judicial review was filed in this Court precisely three months later, on 10 December 2024, being the last day permitted by UCPR r 59.10.

6. [57]

   Even then, Mr Shapkin’s summons did not join the mother or the child or the District Court. The failure to join the District Court created no delay, and is not uncommon in applications such as this. However, the independent legal representative for the child had actively opposed Mr Shapkin’s application, and it is difficult to see how Mr Shapkin could have thought that the further proceedings he had commenced were properly constituted.

7. [58]

   Mr Shapkin’s summons did not seek review for error of law on the face of the record. Instead, it was confined to seeking relief by way of jurisdictional error. All of the grounds turned on the test applied by the primary judge under s 98(3) of the Act. It is fundamental in this country that an inferior court may make an error of law which falls short of jurisdictional error. Ordinarily courts are authorised to determine questions of law, and the fact that, inevitably, they fall into legal error from time to time does not mean that they have exceeded their jurisdiction; to the contrary, they have exercised their undoubted jurisdiction albeit in a legally incorrect way.

8. [59]

   True it is that sometimes an error of law by an inferior court may amount to jurisdictional error. In Craig v South Australia (1995) 184 CLR 163 at 177-178; [1995] HCA 58, the High Court explained how this might occur:

9. [60]

   It is plain from what was said in the majority reasons for judgment in Stanley v Director of Public Prosecutions (NSW) (2023) 278 CLR 1; [2023] HCA 3 at [57] that those principles were not altered by that decision (the dissenting members of the High Court considered that any error of law by the District Court was not jurisdictional). While the three examples given in Craig are not exhaustive, they illustrate how difficult the identification of jurisdictional error in a case such as this will be. The District Court had jurisdiction by reason of s 91(1) of the Act, s 91(4) gave to the District Court all of the functions and discretions of the Children’s Court, including the functions and discretions under s 98(3), and it is plain that the District Court purported to exercise that function. No part of Mr Shapkin’s submissions maintained that the District Court had somehow misapprehended s 91 or the nature of the appeal the District Court was hearing and determining, or any limit upon that conferral of jurisdiction.

10. [61]

    Thus for two reasons, Mr Shapkin’s original summons was patently defective. It did not join a party who had actively opposed his application leading to the decision he wished to challenge. And it confined the challenge to jurisdictional error, which for the reasons summarised above, was, to say the least, beset with difficulties.

11. [62]

    At the Registrar’s invitation, the summons was amended on 6 February 2025, joining the mother and the boy and seeking to set aside the District Court’s decision based on error of law on the face of the record in addition to jurisdictional error.

12. [63]

    Mr Shapkin’s amended summons was listed for hearing on 2 April 2024. At that hearing, he submitted that the independent legal representative for the child lacked standing to be heard. The Court heard argument on the submission, and ruled on it: see Shapkin v Secretary, Department of Communities and Justice [2025] NSWCA 71.

13. [64]

    Nonetheless, that hearing could not proceed, because of a late tender of two documents by the independent legal representative of the child. The written submissions of the independent legal representative of the child, supplied in advance of the hearing, had referred to the summons and submissions filed by Mr Shapkin in the District Court. However, those documents had not been included in the court book. When that was pointed out by the Court, and they were sought to be tendered, Mr Shapkin objected, notwithstanding they were his own documents and notwithstanding the absence of any objection to them in his own submissions in reply. The debate occurred without the documents being in Court, although the Court was told Mr Shapkin’s submissions were two pages long.

14. [65]

    Mr Shapkin said that if the independent legal representative was to be permitted to rely on the summons and submissions filed by Mr Shapkin in the District Court, it would be necessary in order to put those documents in context for the entirety of the evidence and submissions in the District Court to be placed before this Court. There was the following exchange during the course of hearing Mr Shapkin’s objection to the tender of his own summons and submission:

15. [66]

    Thereafter, on no fewer than five times Mr Shapkin was asked by the Court how long he would need to respond after receiving that material. Eventually there was the following exchange:

16. [67]

    The Court directed the respondents to supply the material which was before the District Court, and – subject to one qualification – that occurred promptly after the hearing. Mr Shapkin had a week to supply further submissions, and the matter resumed on 15 April 2024.

17. [68]

    At the adjourned hearing on 15 April, Mr Shapkin tendered none of the material which had been provided at his request.

18. [69]

    Then, when the independent legal representative for the boy tendered most of those documents, Mr Shapkin objected on two bases. The first was that the entirety of the material should have been on affidavit, so it was said as to comply with UCPR r 59.7. The second was that the copy of Mr Shapkin’s affidavit was “materially different” from the affidavit which was read, and that this caused prejudice to him. After hearing from Mr Shapkin, the Court rejected both objections, indicating that reasons would be given in the judgment.

19. [70]

    Mr Shapkin relied on r 59.7(1) which provides “Evidence is to be given by way of affidavit, unless the court directs otherwise”. But the direction made on 2 April 2025 was “Direct the first respondent to file and serve a folder constituting the materials before the District Court on the hearing on 10 September 2024, and including the transcript of that day, by no later than 4pm this Friday 4 April 2025”. It is absurd to contend that when a party wished to tender the documents supplied pursuant to that direction, somehow r 59.7 required an affidavit to be made. Even if r 59.7 were applied rigidly and mechanically, the rule is expressly subject to direction, this Court made a direction on 2 April 2025, and its obvious intent was for the documents which were to be filed and served in response to Mr Shapkin’s complaint that he needed to tender them to be tendered in that form.

20. [71]

    I am conscious that Mr Shapkin is an unrepresented litigant, but he is also a legal practitioner admitted to this Court. It is surprising that a legal practitioner would make an objection of the nature he made. Mr Shapkin speaks English as a second language, but does so reasonably fluently, and he is highly educated. His obvious intelligence makes it difficult to understand how he could come to hold such an interpretation of the Court’s directions and the rules.

21. [72]

    The second aspect of Mr Shapkin’s objection was developed orally at length. Because of its seriousness, it warrants being addressed at length.

22. [73]

    Shortly after Mr Shapkin indicated he was not proposing to tender any of the document he had insisted upon at the earlier hearing, and which was the reason for the adjournment, there was the following exchange:

23. [74]

    Later, when counsel for the independent legal representative of the child tendered the majority of the documents which had been before the District Court, there was the following exchange when Mr Shapkin made his objections:

24. [75]

    Mr Shapkin then elaborated:

25. [76]

    When explaining why in the 9 days after the court book had been served Mr Shapkin claimed not to have had a reasonable opportunity to review the affidavit, there was the following exchange:

26. [77]

    At this point, Mr Shapkin had said on four occasions that there was a material difference between what had been supplied by the respondents in purported compliance with the Court’s directions, and what had been before the District Court. Also at this point, the Court did not have a copy of Mr Shapkin’s affidavit which had been before the District Court. That was the position when counsel for the Secretary intervened:

27. [78]

    The position is as follows. The respondents complied with the Court’s direction to supply the materials more than a week before the resumed hearing. The draft affidavit was identical to that which was read in the District Court. It was Mr Shapkin’s own affidavit. It was obvious on the face of the materials that it had not been filed, but it must also have been obvious to anyone who compared the affidavit supplied with the affidavit which was before the District Court that they were identical. It is very difficult to understand how Mr Shapkin could have come to the conclusion that it was appropriate to tell this Court by way of repeated objection that there was material difference.

28. [79]

    If Mr Shapkin was a practising barrister in this jurisdiction, I would have had no hesitation in giving him an opportunity to be heard as to why this litigation should not be referred to the Legal Services Commissioner for investigation as to whether it amounted to professional misconduct or unsatisfactory professional conduct, and if so what the appropriate sanction would be. Mr Shapkin’s submission, made when the Court did not have a copy of the affidavit, was advanced repeatedly and forcefully. It was not an inadvertent misstatement. On the face of the matter, either Mr Shapkin is prepared to make submissions which he must know to be untrue, or else he has an extraordinarily literalistic view of the construction of court orders and an unawareness of his obligation to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

29. [80]

    Mr Shapkin has a law degree and is admitted as a legal practitioner of this Court. But since he has no practising certificate, and is appearing for himself, I see no purpose in referring his conduct. However, it is highly relevant to the exercise of discretion which will arise in the event that his litigation in this Court succeeds and his appeal is redetermined by the District Court. That is because there is a pattern of conduct by Mr Shapkin in avoiding the real issues in dispute, and manufacturing disputes and complexities when in truth there are none. That has been seen in the adjournment sought and obtained by him, by the specious objection pursuant to r 59.7 to the tender of documents provided at his own request, and, especially, in the untrue statements repeatedly made by him to the effect that he was prejudiced by the service of a draft of his own affidavit which was materially different from what had been before the District Court.

30. [81]

    The independent legal representative maintained that Mr Shapkin’s application had been the cause of the delayed resolution of the proceeding in the Children’s Court insofar as it involved the boy. He pointed to the filing of a summons on the last day, the subsequent filing of an amended summons, and the adjournment on the previous occasion. Mr Shapkin disputed this, and insisted that in fact it was the independent legal representative who was the source of most of the delay. There were two strands to the submission. The first was that the Children’s Court proceedings had to be adjourned in any event in light of the pending criminal prosecution of the mother, who (so the Court was told) was not convicted. The second was that the Secretary, who was the only respondent to Mr Shapkin’s original summons, consented to the decision being set aside, and it was only the stance taken by the independent legal representative which had prevented the matter from being redetermined in the District Court.

31. [82]

    I do not accept the second submission advanced by Mr Shapkin. It was not suggested that the independent legal representative for the boy was acting improperly or inappropriately in continuing his opposition to Mr Shapkin’s being heard (and if it were suggested, I would reject the suggestion). As noted above, it should have been plain to Mr Shapkin that he needed to join to his summons seeking the quashing of the District Court’s decision dismissing his appeal all those parties who had contended in the District Court that his appeal be dismissed. The fact that the only respondent to improperly constituted proceedings did not oppose the relief sought by Mr Shapkin does not entail that the delay thereby caused is attributable to the party whom Mr Shapkin, wrongly, failed to join. What remains entirely unexplained is why Mr Shapkin, a legal practitioner, ever thought a summons, which did not join the independent legal representative of the child, would be an appropriate way to set aside the decision of the District Court.

32. [83]

    However, the parties’ submissions on the source of the delay in filing the summons cannot be resolved. It was made quite clear that the Court would not determine any disputed question in the absence of evidence (that was in fact what led to the independent legal representative’s late tender of Mr Shapkin’s summons and submissions in the District Court). It was also made clear that if relief were to be refused on the basis of delay, it was the respondents who bore the onus of establishing the facts giving rise to delay. No evidence of the prosecution of the mother was tendered in support of the independent legal representative’s submission.

33. [84]

    Thus I accept that some of the delay which has been caused in the determination of the proceedings in this Court is attributable to Mr Shapkin. However, I am nnot satisfied that for that reason alone Mr Shapkin should be refused the relief to which he is otherwise entitled.

Conclusion and orders

1. [85]

   I do not accept that Mr Shapkin was entitled to succeed in his appeal and participate in the hearing in the Children’s Court once the opinion was formed that he had a genuine concern for the safety, welfare and well-being of the boy. That is contrary to the ordinary meaning of the subsection, which speaks of a grant of leave thereby incorporating a discretion. Were that not so, all persons with a genuine concern for the safety, welfare and well-being of the child or young person (such as social workers, or teachers, or every near relative) would have an entitlement to appear, even if they had nothing useful and different to add.

2. [86]

   However, I do accept Mr Shapkin’s submission that the District Court treated his failure to establish that he was a psychological parent as dispositive of the appeal. That discloses error of law on the face of the record.

3. [87]

   There is force in the submissions of the independent legal representative of the child that, fairly read, her Honour had formed the view that Mr Shapkin would not succeed in obtaining an order for parental responsibility for the boy. I do not disagree with the unlikelihood of that proposition, but it is not to the point. In principle, a person who cannot obtain parental responsibility, or does not seek such an order, may nonetheless have a genuine concern for the safety, welfare and well-being of the child or young person, and may appropriately be permitted to appear. A critical question in such cases will be whether that person will express a different view from those already entitled to appear, thereby assisting the court to make orders which are in the best interests of the child or young person.

4. [88]

   Aspects of Mr Shapkin’s conduct of the proceedings in this Court have been unsatisfactory. Part of the delay is attributable to him, and he has made submissions on a number of occasions which, if they had been made by a person with a practising certificate, would be contrary to the Bar Rules or the Advocacy Rules and would prima facie warrant investigation.

5. [89]

   But I am unable to conclude that Mr Shapkin’s behaviour disentitles him from a determination of his appeal in accordance with law. That has not occurred to date. It may very well be that the outcome is the same, but Mr Shapkin like any other litigant is prima facie entitled to his application being heard and determined according to law. When the District Court redetermines Mr Shapkin’s appeal, it will be important to assess what steps Mr Shapkin proposes to avoid the unsatisfactory conduct by him which has accompanied the proceedings in this Court, and what submissions he would make at the final hearing of the Secretary’s application which will be different from the other submissions before the Children’s Court. To be clear, the courses available to the District Court will include dismissing the appeal, or granting leave subject to relatively strict conditions, including a condition that Mr Shapkin be legally represented.

6. [90]

   If this were ordinary litigation in which costs follow the event, I would nonetheless have been minded to make a special costs order adverse to Mr Shapkin, for the delay and expense which the steps taken by him in this Court have inflicted upon the other parties. However, the respondents did not seek costs. Mr Shapkin did seek such costs as an unrepresented litigant might be entitled. I would not make any orders as to costs.

7. [91]

   I propose the following orders:

8. [92]

   KIRK JA: I agree with Leeming JA.

9. [93]

   GRIFFITHS AJA: I have had the considerable advantage of reviewing Leeming JA’s draft reasons for judgment. I gratefully adopt his Honour’s statement of relevant background circumstances.

10. [94]

    I also respectfully agree with his Honour’s findings and reasons concerning the following matters:

11. [95]

    For the following reasons, however, I am respectfully unable to agree with Leeming JA’s findings at [51] and [87] that, when read fairly, the primary judge’s reasons for dismissing Mr Shapkin’s application under s 98(3) contain an error of law on the face of the record.

12. [96]

    My reasons for taking a different view on this central issue are as follows.

13. [97]

    First, it is important to clarify at the outset what constitutes “the record” for the purposes of judicial review for error of law on the face of the record. I respectfully agree with Leeming JA that the record includes the primary judge’s reasons of 10 September 2024 having regard to s 69(4) of the Supreme Court Act 1970 (NSW). This provision had the effect of reversing part of the High Court’s decision in Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58, which had adopted a narrow, historical view of what constitutes “the record” for the purposes of the writ of certiorari. No party in the present proceeding contested the proposition that Judge Olsson’s reasons for judgment were reasons for an “ultimate determination”, so as to attract the remedial effect of s 69(4).

14. [98]

    Secondly, there are other authorities post-Craig which make clear that the record does not include written evidence or submissions, or the transcript of proceedings (see Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13 at [17]-[19] per Basten JA, with whom Macfarlan JA agreed; AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122 at [14]-[15] per Basten JA). Nor do those particular materials become part of the record by a process of incorporation even if express reference is made to them in the written reasons for judgment (see AB at [15] per Basten JA).

15. [99]

    Thirdly, there can be no dispute that despite the narrow approach in Craig the record includes the originating process (in this case the amended summons) and the Court’s formal order (in this case dismissing the appeal) (see Craig at [19] and AB at [14] per Basten JA).

16. [100]

    Fourthly, having regard to the materials which do form part of the record, I do not consider that error of law on the face of the record is revealed in the present proceeding. In particular, I respectfully disagree that, on a fair reading of the primary judge’s reasons (when read in conjunction with Mr Shapkin’s summons filed on 17 June 2024 in the District Court), the primary judge viewed her rejection of Mr Shapkin’s claimed status as the boy’s “psychological father” as dispositive of his s 98(3) application.

17. [101]

    The following circumstances inform that conclusion.

18. [102]

    The summons filed on 17 June 2024 appealing against the Children Court’s refusal of Mr Shapkin’s s 98(3) application sought the following four orders (emphasis added):

19. [103]

    The appeal grounds were stated as follows (emphasis added):

20. [104]

    Having regard to the contents of the summons, it can be seen that Mr Shapkin gave particular prominence to his claim to be the psychological father of the boy. But he did not confine his s 98(3) application to that claim alone. His case was also based on claims regarding Mr Shapkin’s personal involvement in the care and management of the boy and Mr Shapkin’s assertion that he was the only person with the capability of ensuring that the boy “would be in a long-term, safe, nurturing, stable and secure environment” (presumably referring to the cardinal principle in s 9(1) of the Act, which states that the legislation is to be administered under the principle that in any action or decision concerning a particular child “the safety, welfare and well-being of the child … are paramount”).

21. [105]

    Having regard to the prominence which Mr Shapkin gave to his claim to be the boy’s psychological father, it is unsurprising that the primary judge squarely addressed that claim and explained towards the end of her reasons why it was rejected.

22. [106]

    But that is not to say that the primary judge’s rejection of Mr Shapkin’s claim to be the boy’s psychological father was the only basis for her Honour’s rejection of his s 98(3) application. It is important to note the way in which the primary judge’s reasons for judgment are structured. Before explaining why she rejected the claim of psychological parenthood, her Honour dealt at some length with Mr Shapkin’s broader claims why he should be joined in the proceedings and, indeed, why he should have care of the child.

23. [107]

    Her Honour noted at page 6 of her reasons that Mr Shapkin led no positive factual evidence to support his claims regarding the nature of his relationship with the boy. Her Honour drew attention to such matters as:

24. [108]

    After explaining at some length at pages 6-9 why Mr Shapkin’s evidence was “weak”, the primary judge directly addressed his claim to be a psychological parent, commencing at page 9 of the reasons.

25. [109]

    There is no need to repeat Leeming JA’s accurate summary of this part of the primary judgment. It is well, however, to set out the following paragraphs at pages 10-11 of the primary judge’s reasons. As might be expected, these paragraphs overlap to some extent with her Honour’s general assessment of the weakness of Mr Shapkin’s evidence, but they also respond directly to the claim of psychological parenthood:

26. [110]

    The primary judge returned to Mr Shapkin’s claim to be a “psychological parent” at page 11 of her reasons. The following two passages are relied upon as demonstrating error of law on the face of the record:

27. [111]

    If those passages are read in isolation from the rest of the reasons for judgment there may be an argument that the primary judge considered the issue whether or not Mr Shapkin was the boy’s psychological father as dispositive of his application. But the reasons should not be read in that selective manner: they need to be read as a whole. This involves taking account not only of the primary judge’s explanation why she found Mr Shapkin’s evidence concerning the nature and strength of his relationship with the boy to be “weak”, but other matters unrelated to his claim to be a psychological parent, including the primary judge’s clearly stated concerns at both pages 5 and 11 regarding the deleterious effect of delay in finalising the care arrangements for all three siblings, including the boy.

28. [112]

    The reasons should be read fairly and with appropriate allowance for the fact that, in substance, they were delivered ex tempore (which is reflected not only in their date of publication, but also in that part of the transcript of the reasons where the primary judge sought to recall the details of Hammerschlag CJ in Eq’s reasons in In re a Child).

29. [113]

    The primary judge’s reference to In re a Child is significant in another respect. At page 8 of her reasons, the primary judge set out the following passages from the reasons of Hammerschlag CJ in Eq in that case:

30. [114]

    It is significant that immediately after setting out those passages, the primary judge observed that Hammerschlag CJ in Eq had said that there was “no fixed test” for the presence of genuine concern and that his Honour emphasised “that it will depend on the particular factors and the particular circumstances of the case”. This explicit acknowledgement of the need to consider all relevant facts and circumstances is inconsistent with the proposition that the primary judge then proceeded in a way which viewed the question of psychological parenthood as dispositive.

31. [115]

    I substantially agree with the submissions advanced by the third respondent in her supplementary submissions filed 26 February 2025 at [20]-[24] as to why the rejection of Mr Shapkin’s psychological parent claim was not dispositive of the appeal. Those submissions overlap with the reasons set out above. In brief, the third respondent correctly drew attention to the following matters, which indicate that the basis for dismissing Mr Shapkin’s s 98(3) application was not simply because he was not a psychological parent of the boy, but relied on additional matters, including:

32. [116]

    As to the significance which Mr Shapkin attaches to the fact that the primary judge referred twice in her reasons to there being a “test” for being a psychological parent, I do not view her Honour’s choice of that language as suggesting that she regarded that particular matter (or “label” as her Honour described it on page 11 of her reasons) as dipositive. Rather, I consider that her reference to “test” is fairly regarded as a short-hand reference to the four factors identified earlier in her Honour’s judgment as being relevant to assessing whether such status existed, being the factors identified by a Magistrate previously in Re JH [2021] VChC 2. The primary judge did not consider herself as limited to considering only those four factors in determining Mr Shapkin’s application. As noted above, her Honour also referred to other matters, including the mother’s answers in cross-examination in the Children’s Court, the absence of evidence that Mr Shapkin made inquiries about the boy after he had been removed from his mother’s care and the need in the interests of all three siblings to minimise delay in finalising their care arrangements.

33. [117]

    I find that Mr Shapkin has failed to discharge the onus which he carried of establishing error of law on the face of the record.

34. [118]

    For all these reasons, I propose that the amended summons filed on 6 February 2025 be dismissed, with no order as to costs.