SH v Department of Communities and Justice (No 2)

Before the Court are mirror applications arising from the fact that the plaintiff (the father of the third defendant, known by the pseudonym “Dimitri”, presently aged 14 years) requires an extension of time (under the Uniform Civil Procedure Rules 2005 NSW (UCPR) rule 50.3(1)) to appeal final care orders made by the President of the Children’s Court of NSW (Skinner DCJ) on 26 July 2024 in respect of one of three children, the third defendant Dimitri (the other two being known by their pseudonyms, the fourth defendant Sofia and the fifth defendant Julia) the subject of the current proceedings in this Court. Her Honour’s reasons for judgment have been published as Department of Communities and Justice (DCJ) and Dimitri and Nicholas and Sofia and Julia [2024] NSWChC 11.

The proceedings in the Children’s Court have a long and tortuous history not presently necessary to traverse in detail. There were initially four children the subject of those proceedings, two boys and two girls. The two boys are the children of the plaintiff and the second defendant. The two girls are the adopted daughters of the plaintiff alone. Subject to any orders hereafter made, the girls (Sofia and Julia, respectively aged 14 and 13 years) are under the parental responsibility of the Minister for Communities and Justice until they attain the age of 18 years, and they are presently in a settled arrangement in foster care. The older boy (known by the pseudonym Nicholas, now aged 18 years) is no longer the subject of any proceedings. The current controversy relates only to Dimitri, the younger boy, and incidentally his mother, the second defendant.

Pursuant to orders earlier made in the Children’s Court Dimitri’s mother has sole parental responsibility for him and he is living with her, her partner and his older brother.

The current controversy is centrally focused on the plaintiff’s challenge (by way of an appeal under section 91 of the Children and Young Persons (Care and Protection) Act 1998, “the Care Act”) to a contact order relating to Dimitri made by the President under section 86 of the Act on an application made by the plaintiff under section 90 of the Act for a variation of an earlier contact order made in relation to Dimitri on 16 June 2020 by Children’s Magistrate Maher.

The plaintiff’s appeal comes to the Supreme Court of NSW (rather than the District Court of NSW, as the text of section 91 provides) because it is an appeal from the President of the Children’s Court: Children’s Court Act 1987 NSW, section 22A(4); Children’s Court Regulation 2024 NSW, clause 4(1)(a).

On 22 April 2022 Children’s Magistrate Mulroney, inter alia, granted the plaintiff leave (required by section 90(1) of the Care Act) to make an application for contact with respect to Dimitri and the two girls, the object of the plaintiff in relation to Dimitri being to vary the contact order made on 16 June 2020. The plaintiff evidently did not press Mulroney CM for any orders with respect to the elder son as the son did not want to see his father.

Section 91 of the Care Act is in the following terms (with emphasis added):

Section 91(1) provides for an appeal against an order of the Children’s Court (other than an interim order). It does not open up everything that might have occurred during the course of proceedings in the Children’s Court except possibly to the extent that something occurred which was incidental to the order under appeal. The concept that an appeal is against a particular order is implicit in each of the subsections of section 91. The appellate court (ordinarily, the District Court but, in these proceedings, the Supreme Court) may confirm, vary or set aside the “decision” of the Children’s Court, limited to an appeal against a particular, identified order of the Children’s Court.

Section 91 provides for an appeal by way of a new hearing but it does not authorise the appellate court to assume the character of the Children’s Court for a purpose beyond the scope of an appeal from a particular order.

The scheme of the Care Act, manifested in section 90, provides that an application for the rescission or variation of a care order may be made with the leave of the Children’s Court in circumstances where it appears to that Court that there has been a significant change in any relevant circumstances since the care order was made or last varied. Before a grant of leave can be made the Children’s Court must consider a range of factors (including the views of a child or young person the subject of the Court’s jurisdiction) bearing upon the principles for which section 9 of the Care Act provides, reinforced by the “principle of participation” set out in section 10 of the Act, indicative of the importance attached to the views of a child or young person having regard to his or her maturity and capacity to express his or her views.

So far as is material, section 9 of the Care Act is in the following terms (with emphasis added):

Section 90 of the Care Act is in the following terms (with emphasis added):

The President’s orders under challenge in the current appeal proceedings were made under section 86 of the Care Act, following a grant of leave by Mulroney CM for an application to be made by the plaintiff to vary the contact orders relating to Dimitri and the two girls.

The final orders made by her Honour the President on 26 July 2024 were to the following effect:

The question before the President in relation to Dimitri related to contact. It did not extend to a question of parental responsibility, although it might fairly be said that the question of contact was predicated upon the fact that Dimitri’s mother (the second defendant) has at all material times had sole parental responsibility for Dimitri.

So far as is presently material, by the current appeal proceedings the plaintiff seeks to disturb the current regime of care orders relating to Dimitri. He seeks: (a) an order that he and the second defendant be allocated joint parental responsibility of Dimitri (thus disturbing the care order made in favour of the second defendant by Maher CM on 16 June 2020 and challenging a determination by Mulroney CM on 22 April 2022 that leave to apply for a variation of Maher CM’s parental responsibility orders be refused); and (b) contact orders which would impose on Dimitri and his mother a mandatory regime of regular contact between the plaintiff and Dimitri (thus denying Dimitri the agency allowed to him by the President’s contact order of 26 July 2024).

The principal proceedings in this Court were commenced by a summons filed on 6 August 2024, since amended four times. The first amended summons was filed on 20 September 2024. The second amended summons (styled “further amended summons”) was filed on 25 September 2024. The third amended summons (styled “second further amended summons”) was filed on 25 November 2024. The fourth amended summons (styled “third further amended summons”) was filed on 24 February 2026.

As originally filed, the summons challenged only the final orders made by the President on 26 July 2024 affecting Sofia and Julia, the adopted daughters of the plaintiff. It did not challenge the final orders made by the President on 26 July 2024 affecting Dimitri. As regards Sofia and Julia, the summons was filed within the 28 days (running from 26 July 2024) limited by UCPR rule 50.3(1)(a) for the commencement of an appeal.

The plaintiff’s decision not to include Dimitri in the summons must be taken to have been based on a forensic choice, not an oversight. There is no suggestion that it was other than a deliberate decision, save that the plaintiff says (if it matters) that he was not legally represented at the time the original summons was filed.

The plaintiff’s first challenge to the President’s orders of 26 July 2024 affecting Dimitri was by way of the “amended summons” filed on 20 September 2024, 28 days out of time.

No application was made by the plaintiff for an extension of time in relation to Dimitri in the “amended summons” filed on 20 September 2024, the “further amended summons” filed on 25 September 2024 or the “second further amended summons” filed on 25 November 2024.

The first time an application was made for an extension of time within which to appeal from the President’s orders of 26 July 2024 affecting Dimitri was upon filing of the “third further amended summons” on 24 February 2026.

The “second further amended summons” filed on 25 November 2024 did seek (in prayer 1) an application for leave to appeal out of time a decision made by the Children’s Court Magistrate Mulroney on 22 April 2022. That application was dismissed by Richmond J on 28 November 2025 for reasons published as SH v Department of Communities and Justice [2025] NSWSC 1419, leaving aside the possibility that a challenge to the judgment of Mulroney CM might be available on the hearing of an appeal from the President’s orders of 26 July 2024 if it can be established that the Mulroney judgment affected the final orders made by the President.

By a notice of motion filed on 30 October 2024, the second defendant (the mother of Dimitri) applied for an order that the plaintiff’s “further amended summons” filed on 25 September 2024 be struck out (pursuant to UCPR rule 14.28) on the basis that it disclosed no reasonable cause of action and had a tendency to cause prejudice to Dimitri. Part 14 of the UCPR applies to proceedings commenced by, or continuing on, a statement of claim. In strict terms, it has no operation in the present proceedings, commenced by summons. Nevertheless, the notice of motion plainly seeks summary disposal of the plaintiff’s summons affecting Dimitri (whether pursuant to UCPR rule 13.4 or the inherent jurisdiction of the Court) on the basis that the plaintiff had not obtained a grant of leave under UCPR rule 50.3(1)(c) to commence an appeal in relation to Dimitri out of time. The submissions advanced against a grant of an extension of time do not shrink from a contention that the plaintiff’s claims for relief are an abuse of the process of the Court.

The allegation of abuse of process was not argued on the question whether the plaintiff should be granted leave to appeal out of time. It is not taken into account on the question whether an extension of time should be granted. The plaintiff, by his counsel, forcefully contended (in conformity with section 9(1) of the Care Act) that his challenge to the President’s orders is motivated by a concern for Dimitri’s welfare and well being as a paramount concern. That may be accepted.

Nevertheless, he has contended that, through his professed concern for Dimitri’s welfare and well being, a major object he has in challenging the orders of the Children’s Court (including orders allocating parental responsibility for Dimitri to the mother alone) is to address what he perceives to have been an injustice inflicted on him. That was the taking away from him his role in parental responsibility for Dimitri, arising from allocation of parental responsibility to the mother at a time when he was the subject of criminal proceedings connected with the care of one of the girls, not Dimitri, subsequently dismissed by a jury.

Although the bona fides of the plaintiff’s (contingent) appeal against the President’s contact order relating to Dimitri may be accepted, his case is open to the criticism that, by seeking to vary the parental responsibility order made in favour of the mother on an appeal against a contact order (made in his favour), the plaintiff is seeking to circumvent the necessity for him to satisfy the “change in circumstances” requirement of section 90(2) of the Care Act had he made a fresh application for a grant of leave under section 90(1) to vary the Children’s Court’s allocation of sole parental responsibility to the mother.

Dimitri’s direct legal representative, supported by Dimitri’s mother, strongly contended that the depth of any concern shown by the plaintiff for the welfare and well being of Dimitri could not be regarded as very deep because, he has never had much personal interaction with Dimitri. In particular, despite encouragement of the development of a personal relationship between the plaintiff and Dimitri in the judgment of the President, in the period following the President’s judgment the plaintiff has made no attempt (the plaintiff would concede no greater attempt beyond two cards) to connect with Dimitri. Dimitri, they say, does not know the plaintiff as his father in any real sense.

The plaintiff and the second defendant (the parents of Dimitri) have joined issue on the question whether the plaintiff should be granted leave to appeal against the President’s orders of 26 July 2024 affecting Dimitri out of time. The plaintiff seeks a grant of leave. The second defendant opposes a grant of leave.

The first defendant (functionally, the Secretary, Department of Communities and Justice) opposes a grant of leave to appeal out of time, as do the direct legal representatives of each of the children, Dimitri, Sofia and Julia.

All the defendants submit that the summons should be dismissed as against Dimitri and his mother on the substantive (not merely procedural) basis that Dimitri, being of an age and maturity capable of expressing his own mind, has done so; and his views (coupled with concern about his welfare if the proceedings affecting him are allowed to continue) are decisive against the plaintiff being granted leave to maintain the proceedings against Dimitri and his mother.

Dimitri, now aged 14 years, has plainly communicated to the Court, through his direct legal representative, his opposition to the ongoing conduct of these proceedings.

A concern expressed by each of the first defendant and the direct legal representatives of Sofia and Julia is that, should the plaintiff be permitted to pursue an appeal against the orders affecting Dimitri that will not only complicate the proceedings but detrimentally affect the well being of all three children.

Through his direct legal representative Dimitri endorses the orders made by the President on 26 July 2024; submits that the plaintiff’s “third further amended summons” filed on 24 February 2026 should be dismissed as regards him; opposes any order allowing a summons against him to be filed out of time; and opposes all orders sought by the plaintiff in the third further amended statement of claim on the basis that they are contrary to law, unsupported by evidence, and not (as required by the Care Act, section 9) in his best interests.

That Dimitri is personally and emphatically opposed to the plaintiff’s case is not in doubt. Objectively, that seems to be why the plaintiff seeks to compel Dimitri to have contact with him with a view to influencing him towards contact, and to displace the determination of the President that any contact between the plaintiff and Dimitri be “in accordance with Dimitri’s wishes (until Dimitri turns 18)”.

Paragraphs 20 and 21 of the reasons for judgment of the President are instructive as to Dimitri’s personal circumstances and (nearly two years later than the observations of the President) his present attitude to these proceedings, as confirmed by his Direct legal Representative:

The plaintiff’s evident attempts to compel Dimitri to submit to contact with him appear to have been entirely counter-productive. Dimitri has refused contact with his father until all litigation has ceased.

The plaintiff’s submissions suggest that he has not at all heard his son’s voice and remains determined to force himself on Dimitri rather than allowing Dimitri space to decide for himself the pace of any improvement in the father-son relationship.

The second defendant denies that she has impeded contact between the plaintiff and Dimitri or that she has any intention to do so. The fact that Dimitri’s consistent opposition to contact has been communicated to the Court via his Direct Legal Representative tells against any suggestion of undue influence on the part of the mother.

The proposition that Dimitri has been traumatised by eight years of litigation (in the Children’s Court, the District Court of NSW and the Supreme Court), largely maintained by the plaintiff (with a poor record of success), is not implausible. Neither is the psychological pressure likely to be placed on Dimitri by ongoing court proceedings.

Contact orders made by the President on 26 July 2024 affecting Dimitri provide opportunities for Dimitri to have contact with the plaintiff if and when he wishes to do so.

The orders sought by the plaintiff against, or affecting, Dimitri on appeal from the President’s orders, even if properly made, are likely to be oppressive on Dimitri, unworkable without his acquiescence, and very likely futile in the absence of any clear means of enforcement.

The plaintiff’s application for a grant of an extension of time within which to appeal against the President’s orders affecting Dimitri is not (as the plaintiff would have it) simply a matter of excusing a delay of about a month. The plaintiff has no absolute right to an extension of time.

The fact that the plaintiff requires a judicial exercise of discretion in his favour on his application for an extension of time provides an occasion for the Court to consider the operation of the guiding principles for which section 9 of the Care Act provides, particularly section 9(1) and paragraphs (a), (b) and (c) of section 9(2).

Reference should also be made to section 94(1) of the Care Act, which mandates that “[all] matters before the Children’s Court are to proceed as expeditiously as possible in order to minimise the effect of the proceedings on the child or young person and his or her family and to finalise decisions concerning the long-term placement of the child or young person”.

In my opinion, Dimitri’s fully informed opposition to contact with the plaintiff (otherwise than on the terms determined by the President on 26 July 2024), and maintenance of these proceedings against him and his mother, is an important factor against a grant to the plaintiff of an extension of time within which to appeal against the President’s orders of 26 July 2024 so far as they affect Dimitri and his mother.

To the extent that the merits of the plaintiff’s case vis-a-vis Dimitri need to be taken into account, in my opinion the plaintiff’s prospects of success are not substantial. Dimitri’s views bear heavily against his success. On top of that, the President’s contact order both allows the plaintiff to have access to Dimitri and preserves Dimitri’s agency in making decisions about access. The plaintiff has been an absent father for most of Dimitri’s life. Dimitri is settled in his mother’s household and fearful of (at least overnight) contact with the plaintiff.

I also accept that maintenance of the plaintiff’s appeal (as against Dimitri and his mother) would adversely affect Dimitri’s psychological well-being in light of the history and course of what has to be traumatic litigation to date.

I am not persuaded (as the plaintiff would have it) that, on the proper construction of the Care Act, an appeal under section 91 from a stand alone contact order (made under section 86) opens the gate, on the hearing of the appeal, to consideration at large of a question of parental responsibility in the absence of a grant of leave by the Children’s Court under section 90(1) with due consideration in that Court of whether there has been a change in circumstances of the type identified in section 90(2).

A section 91 appeal is conducted as a rehearing of the application that gave rise to the specific order under appeal, not of all issues touching upon the welfare of a child without due regard to the safeguards that govern a section 90 application and the role of the Children’s Court as a specialist court.

I accept, as Richmond J found, that on a hearing of a section 91 appeal from a stand alone contact order, the Court can take account of criticism of an earlier refusal of leave to make an application for a review of a parental responsibility order if it is incidental to the appeal against the contact order, but not as if the appeal extends as a right to an appeal against a parental responsibility order that preceded the contact order under appeal.

I do not accept, as the plaintiff would have it, that section 79 (which permits the Children’s Court to allocate specific aspects of parental responsibility including “contact”), of itself or in combination with any other section, controls the nature or scope of a section 91 appeal, allows the plaintiff to circumvent section 90(2), or requires that section 9 (of itself or in combination with any other section) to be viewed through the prism of a parent whose formal role in parental responsibility has been displaced by an order of the Children’s Court that subsists without a direct challenge that confronts sections 90(1) and 90(2).

Section 86 of the Care Act treats a “contact order” as a discrete type of order and that is how it was treated by the President.

In any event, in the present case, the plaintiff has demonstrated no reasonable basis (not affected by his sense of grievance about what he views as an unwarranted exposure to criminal proceedings ultimately found in his favour) for interfering with the arrangements made for Dimitri’s care, whether expressed in terms of parental responsibility or in terms of contact. Dimitri is safe and settled within the care of his mother.

The President’s contact order allows him to enjoy agency in discovering and developing a relationship with his father without exposing him to fear or compulsion. His consistency in his expression of his view about this demonstrates that he has a level of maturity sufficient to have his views respected. As the President noted, he wants an end to the proceedings affecting him.

If it is correct to say, as the plaintiff contends, that the variation of a parental responsibility order can be sought on an appeal from a contact order as an incident of the contact order or the appeal, that merely highlights the prejudice to Dimitri (and his mother) from the plaintiff’s delay in initiating an appeal against the President’s contact order and the greater delay since the refusal of Mulroney CM to grant leave to reopen the question of parental responsibility.

In any event, the fundamental question remains: in short form, What is in the best interests of Dimitri? On any view, in my opinion, the answer is that the plaintiff’s application for an extension of time should be dismissed and, on that basis, so too should the proceedings against Dimitri and his mother be dismissed.

Without in any way encouraging further litigation, I note that, if the plaintiff seeks to reopen generally the question of parental responsibility for Dimitri, he needs to consider the operation of section 90 of the Care Act including subsections (2)-(2E).

Given the strength of the views expressed by Dimitri, the length of time for which Dimitri has been in the care of his mother in care arrangements that are stable and secure (and that allowing Dimitri agency in the contact that he has with the plaintiff would be the least intrusive intervention into his life), the impediments to a successful application for leave to reopen the question of parental responsibility loom large.

For the record, I have not drawn assistance in considering the construction and operation of the Care Act from the plaintiff’s submissions about the operation of the courts exercising jurisdiction under the Family Law Act 1974 Cth. The Care Act is a manifestation of the protective jurisdiction of the State and State courts and is to be viewed in its own terms.

In my opinion, having regard particularly to section 9(1) and section 9(2)(a) and (c) of the Care Act, the welfare and well being of Dimitri are best served by this Court refusing the plaintiff’s application for an extension of time within which to appeal against the President’s contact order.

Accordingly, I propose to dismiss prayer 2 in the plaintiff’s Third Further Amended Summons filed on 24 February 2026 and to give directions for the filing of an amended summons that omits any claim for relief extending to Dimitri or his mother.