AG (a pseudonym) v Department of Communities & Justice [2025] NSWDC 492

Catchwords: CHILD WELFARE – Appeal filed pursuant to s 91 of the Children and Young Persons (Care and Protection) Act 1998 – appeal from an interlocutory order of the Children’s Court refusing a stepfather leave to be joined to proceedings – whether plaintiff stepfather has relevant standing – whether plaintiff stepfather has a genuine concern for the safety, welfare and wellbeing of the child the subject of the proceedings – s 98(3) – whether stepfather’s claim has reasonable prospects of success – leave for joinder granted – COURTS AND JUDGES – application by the Secretary, Department of Communities and Justice for recusal on ground of apprehended bias – application refused District Court New South Wales Amendment notes Medium Neutral Citation: AG (a pseudonym) v Department of Communities & Justice [2025] NSWDC 492 Hearing dates: 24 and 25 November 2025 Date of orders: 27 November 2025 Decision date: 27 November 2025 Jurisdiction: Civil Before: Acting Judge Levy SC Decision: 1. Appeal allowed; 2. Set aside t he order of the Children's Court made on 9 May 2025 refusing join der of the plaintiff to the proceedings numbered 2025/00045900 ; 3. Leave granted to t he plaintiff for his joinder to Children's Court proceedings numbered 2025/00045900; 4. The plaintiff is joined to the Children ’ s Court proceedings numbered 2025/00045900; 5. The proceedings are remitted to the Children's Court for the scheduled resumption of the hearing on 5 December 2025; 6. Liberty to apply on 7 days ’ notice if further or other orders are required. Catchwords: CHILD WELFARE – Appeal filed pursuant to s 91 of the Children and Young Persons (Care and Protection) Act 1998 – appeal from an interlocutory order of the Children’s Court refusing a stepfather leave to be joined to proceedings – whether plaintiff stepfather has relevant standing – whether plaintiff stepfather has a genuine concern for the safety, welfare and wellbeing of the child the subject of the proceedings – s 98(3) – whether stepfather’s claim has reasonable prospects of success – leave for joinder granted – COURTS AND JUDGES – application by the Secretary, Department of Communities and Justice for recusal on ground of apprehended bias – application refused Legislation Cited: Children and Young Persons (Care and Protection) Act 1998, s 4, s 9, s 10A, s 61, s 91, s 98(3), s 105 Cases Cited: Briginshaw v Briginshaw (1936) 60 CLR 336 Bronze Wing International Pty Ltd v Safe Work Australia [2017] NSWCA 41 BW v Secretary, Department of Communities and Justice [2024] NSWSC 1354 D v C; Re B (No 2) [2018] NSWCA 310 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd (1992) 67 ALJR 170 Polsen v Harrison [2021] NSWCA 23 Category: Principal judgment Parties: AG (a pseudonym) (Plaintiff) Secretary, Department of Communities & Justice (First defendant) JB (Second defendant) DH (Third defendant) The Child (Fourth defendant) Representation: Counsel: Ms S Abdelraheem (Plaintiff) Mr M Anderson (First defendant) No appearance (Third defendant) Ms S Clarke (Fourth defendant) Solicitors: Hammond Nguyen Turnbull (Plaintiff) Karen Smith, Crown Solicitor (First defendant) - (Second defendant) No appearance (Third defendant) McNeilly Lawyers (Fourth defendant - ILR) File Number(s): 2025/278850 Publication restriction: Non-publication order made pursuant to s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) Decision under appeal Court or tribunal: Local Court Jurisdiction: Children's Court Citation: (Unreported) Date of Decision: 09 May 2025 Before: James Viney LCM File Number(s): 2025/00045900 Judgment Table of Contents Non-publication order and litigation pseudonym [1] Introduction [2] – [11] Application for judicial recusal [12] – [13] Locus standi of the plaintiff for joinder to proceedings [14 ] Evidence [15] – [17] Absent evidence [18] – [19] Appealed interlocutory decision of the Children’s Court [20] – [22] Issues [23] Evidence review [24] – [46] Procedural history and factual background [47] – [52] Consideration [53] – [78] Reasons for refusal of application for recusal [79] – [108] Orders [109] Non-publication order and litigation pseudonym At the commencement of the hearing an order was made pursuant to s 105 of the Children and Young Persons (Care and Protection) Act 1998 ( “ Care Act ” ) , prohibiting the publication of the name of the child the subject of these proceedings, including the publication of any information or details of any other parties, witnesses or persons named in evidence that would tend to identify th at child. Accordingly, the plaintiff is allocated the litigation pseudonym “ AG ” . Introduction Th is is an appeal commenced by way of s ummons filed by the plaintiff on 5 June 2025, pursuant to s 91 of the Care Act , appeal ing an order made in the Children's Court on 9 May 2025 declining the plaintiff ’ s application to be join ed as a party to the proceedings . Those proceedings are presently part-heard and due to resume in the Children ’ s Court on 5 December 2025. The urgency of these reasons arises on account of th at imminent resumption . The plaintiff is the non-biological stepfather of a child aged almost 5 years who is the subject of the proceedings . He claims to be her psychological father because of his caring connection and attachment which commenced antenatal ly in his former relationship with the child ’ s mother . The relationship subsequent ly became interrupt ed due to the tempestuous nature of that relationship , because the mother, unfortunately suffers from a number of serious mental illnesses , including psychosis, delusional thinking, paranoia , gra ndiose thinking, mania and a bi-polar disorder , where, despite her disorganised thinking, she shows an intelligent ability “ to convince people of things ” : Exhibit “ A ”, pp 333 - 334 . The plaintiff wishes to participate in the Children ’ s Court proceedings and to have his voice heard claiming he has a genuine concern for the child ’ s safety, welfare and wellbeing . The Children ’ s Court declined to permit the plaintiff ’ s joinder to the proceedings as it was not satisfied that he had a genuine concern for the child , which is a threshold consideration for determining whether he should be joined to the proceedings. This appeal from that decision is a hearing de novo confined to the specific interlocutory issue of joinder . The other parties represented in the appeal , the Secretary of the Department of Communities and Justice ( “ t he Secretary ” ) and the Child ’ s Independent Legal Representative ( “ ILR ” ) , oppose the plaintiff ’ s application for joinder. The application is also opposed by affidavit evidence from the child ’ s natural father , who is the third defendant in the Children ’ s Court. Although he is a party to the proceedings in the Children ’ s Court, h e has not participated in this appeal . The appeal was listed for a 2-day hearing scheduled to proceed on 24 and 25 November 2025. On the morning of the first day of hearing only the solicitor for the Secretary appeared and mention ed the appearance of the other represented parties . This was with a view to having orders by consent made which would have had the effect of dismissing the appeal. As this Court ’ s jurisdiction in appeals from the Children ’ s Court is supervisory and protective, in the absence of the active presence of the plaintiff as the moving party, the basis of the proposed consent orders was explored to ensure that the best interests of the child the subject of the appeal had been considered . In that context, it was considered in a pt to simply endorse the proposed consent orders by rubber-stamping them without exercising the protective function of the jurisdiction . On exploring with the solicitor for the Secretary the basis for the proposed consent orders, ar rangements were made for the absent representatives, namely, the plaintiff and the independent legal representative, to appear later that day by an AVL connection during which the issue of whether the plaintiff was sui juris and had understood that he had a statute based locus standi in the proceedings , was explored . When the Court ’ s impression on those matters was identified to the parties, against the background of having regard to the content of the court books and the proposed consent orders , the plaintiff ’ s solicitor requested some time to seek instructions, following which he indicated his instructions had changed and his client ’ s consent to his appeal being dismissed was withdrawn. As a result, the proposed consent orders were not handed up and the y were not made or entered . In those circumstances, the parties indicated that they would be ready to proceed to a hearing on the following day. Application for judicial recusal On 25 November 2025 , on instructions , counsel for the Secretary made an application for judicial recusal on the ground of apprehended bias. That application, which was based on the transcript of proceedings on 24 November 2025 , was then argued. Th e Secretary ’ s recusal application was not supported by the plaintiff. The IL R noted the Secretary ’ s concern but did not support the Secretary ’ s application. At the time, as there had been some time slippage , and because there was an issue over court room availability that afternoon , due to the current state of building issues in the District Court complex where there were other cases and parties awa iting the opportunity for allocation of a court room, the parties were informed that the recusal application would initially be determined in short form . In those circumstances the application was dismissed , with an indication that the reasons for dismissal would be included in this judgment. Those reasons commence at paragraph [ 79 ] below. Locus standi of the plaintiff for joinder The consideration of the plaintiff ’ s locus standi or legal right to make an application for joinder to the proceedings is founded upon his status as the stepfather of the child . On the first level of analysis without considering discretionary factors, t hat status makes him a “ relative ” of the child within the meaning of s 4 of the Care Act . Th at status represents a gateway for an argument that engages the statutory permanent placement principle to the effect that if it is not considered practicable for the child to be placed in the care of a parent, the second preference in th e statutory hierarchy of placement considerations is for the child to be placed with a relative: s 10A of the Care Act . Evidence In accordance with the prevailing practice for appeals from decisions of the Children ’ s Court , in advance of the hearing, o n 18 November 2025, and in compliance with a pre-hearing direction issued to the parties , t he Secretary provided an extensive Court Book which included the transcript of the join d er proceedings before the Children ’ s Court and a series of 10 affidavits which variously pre and post-dated the hearing in the Children ’ s Court : Exhibit “ A ”, Tabs 1 – 14, pp 1 – 367. The Secretary also provided a detailed Chronology of Events (Exhibit “ B ” ) , and a t ender b undle comprising subpoenaed documents: Exhibit “ C ” . The plaintiff ’ s Court Book was marked Exhibit “ 1 ” . The submissions of the parties were respectively marked MFI “ 1 ” , MFI “ 2 ” and MFI “ 3 ” . The expectation of the parties was that for efficiency those materials would be read in advance of the hearing. The filing sequence of the evidentiary affidavits considered in this appeal was as follows : Affidavit of “ AG ” filed on 3 March 2025: Exhibit “ A ” , pp 34 – 75; Affidavit of A lina Ljumanovic, DCJ Caseworker filed on 24 March 2025: Exhibit “ A ” , pp 76 – 8 6 ; Affidavit of “ AG ” filed on 5 April 2025: Exhibit “ A ” , pp 8 7 – 96 ; Affidavit of the child ’ s natural father filed on 11 April 2025: Exhibit “ A ” , pp 97 – 112; Affidavit of Courtney Ritchie, DC J Caseworker filed on 5 May 2025: Exhibit “ A ” , pp 113 – 1 46 ; Affidavit of “ AG ” filed on 7 May 2025: Exhibit “ A ” , pp 147 – 155 ; Affidavit of “ AG ” filed on 22 August 2025: Exhibit “ A ” , pp 1 62 – 212 ; Affidavit of Courtney Ritchie, D C J Caseworker filed on 5 September 2025: Exhibit “ A ” , pp 2 13 – 357 ; Affidavit of “ AG ” filed on 3 October 2025: Exhibit “ A ” , pp 358 – 363 ; Affidavit of Razeeha Reilly, solicitor for the plaintiff, filed on 3 October 2025: Exhibit “ A ” , pp 364 – 367. In addition, oral evidence through a remote AVL connection was given by the departmental caseworker assigned to the child ’ s case, Ms Courtn e y Ritchie : T 25 – T42 . Absent evidence The documentary material identified at paragraph [ 16 ] above, was read in advance of t he hearing in order to gain a contextual impression of the issues to be determined. Significantly absent from those materials was any indication of the fact that the Secretary had already assessed the child ’ s natural father for suitability for the child ’ s placement with him and had in fact prepared and filed a related Care Plan dated 13 November 2025 with the Children ’ s Court , thus raising the potential for a placement with the natural father pursuant to s 10A(1) of the Care Act . Those facts only emerged during the course of the Secretary ’ s application for judicial recusal ( T18.34 ) and in the oral evidence of the departmental caseworker: T26.1 – T26.27 . The Secretary ’ s prior written submissions made no reference to the fact that those plans were in progress and those written submissions were not updated or amended prior to the hearing. Consequently, t he matters raised with the parties on 24 November 2025 were explored without knowledge or disclosure of those plans. Appealed interlocutory decision of the Children's Court On 9 May 2025, the Children ’ s Court ’ s reasons for rejecting the plaintiff's application for joinder focussed upon the following factors which are identified here as relevant background : There was a dispute on factual matters and there was said to be “ significant doubt as to how long the applicant lived with [the c hild] and in fact parented her ” : Exhibit “ a” , p 11.30; The child ’ s mother, who has a history of drug abuse and psychiatric illness, asserted that she had suffered physical violence during her relationship with the plaintiff: Exhibit “ a” , p 11.50 . There was no mention of the fact that the plaintiff had a current AVDO to protect him from the child ’ s mother ; There were substantial periods of separation in the relationship between the plaintiff and the child with “ very minimum ” shared time: Exhibit “ a” , p 12.3; There were allegations of the plaintiff ’ s sexual impropriety towards the child in the context of suspicious indicators: Exhibit “ a” , p 12.10; Whilst the Children ’ s Court noted the plaintiff ’ s denials concerning the matters alleged against him, and whilst it was noted that the plaintiff held a belief that he has a genuine interest in the child ’ s welfare, the Secretary ’ s submission that the plaintiff ’ s belief was based on “ improper motives ” was accepted: Exhibit “ a” , pp 12.13 – 20; The Children ’ s Court decided that if the applicant were to be joined to the proceedings, the finalisation of the proceedings would be delayed because, in light of the Secretary ’ s position claim that the plaintiff is unsuitable as a carer for the child, the factual contest between the applicant and all other parties would add to the delay in the proceedings: Exhibit “ a” , pp 12.22 – 12.33; In coming to th e foregoing view, where the plaintiff ’ s contribution ( “ voice ” ) to the proceedings might be unknown, the Children ’ s Court nevertheless held that there are “ some doubts as to whether he would bring a unique voice to the proceedings ” : Exhibit “ a” , pp 12.29 – 12.33; The Children ’ s Court accepted the Secretary ’ s submissions that the plaintiff ’ s prospects of success in the proceedings were questionable, and consequently dismissed his application: Exhibit “ a” , pp 12.44 – 12.49. The Secretary ’ s view that the plaintiff was unsuitable as a carer for the child was formed by the Secretary without any formal assessment having been made of the plaintiff , without him being interviewed by departmental officers, and where there has been no police investigation or interview regarding any of the matters of concern adverted to by the Secretary : T34.5 . This was in circumstances where the plaintiff had a checked clearance for working with children. As a consequence of the foregoing matters , the plaintiff felt aggrieved by the interlocutory decision of the Children ’ s Court which excluded his participation in the proceedings . On 5 June 2025 as was his right , he filed the present summons in this Court appealing the order by which his application for joinder was refused. Issues The matters at issue in this appeal are the intertwined questions of whether the plaintiff has the legal standing to be joined to the proceedings and whether he holds a genuine concern for the safety, welfare and wellbeing of the child the subject of the proceedings: s 4, s 9, s 10A, and s 98(3) of the Care Act . Th is appeal does not involve a determinative consideration of the merits of the contested factual matters raised in the evidence in the proceedings before the Children ’ s Court , or in this Court, although an objective assessment of the plaintiff ’ s prospects of success in the Children ’ s Court proceedings is a relevant matter to be considered in determining whether he should be joined to the proceedings . Evidence review Th e array of affidavit and oral evidence in this application is summarised in the paragraphs that follow. Those su mmarie s are set out as part of the factual background. It is outwith the scope of these reasons to seek to resolve the conflicting factual matters that emerge from that evidence. (1) Plaintiff’s first affidavit - 3 March 2025 - Exhibit “A”, pp 34 – 7 5 T he plaintiff ’ s first affidavit sets out a series of family photographs that show the family in apparently happier times. The plaintiff is aged almost 45 years . He is in secure self-employment and supervis es a large number of employees and contractors. He has a commodious home that seems well set up and fenced for safety. He appears to be in good physical and mental health and he has no drug or alcohol issues. Although he is not the child ’ s natural father, he claims a close personal attachment to the c hild since birth, as if she was his own child. He states that he wants to provide for her and to ensure she receives the best possible education. He at times has been separated from the c hild on account of the mother ’ s mental health difficulties and the time she has spent living inter state or in a mental health facility as an involuntary patient . H e has continued to provide for the child ’ s financial support , and he has attended to her emotional development through telephone contact. He is named on the child ’ s birth certificate, he has listed the child as a beneficiary of his life insurance policy, and he ha d indicated his intention to pay for her enrolment in a private school prior to the mother moving interstate . He described the tumultuous and abusive relationship with the c hild ’ s mother, including her episodic physical assaults on him , and the mother ’ s aberrant drug and alcohol behaviours, and her substance abuse. He set out an extensive list of his concerns about the ca r e and welfare of the child whilst she has been in the temporary care of her half-sister from a previous relationship of the mother . (2) Ms Ljumanovic’s affidavit - 24 March 2025 - Exhibit “A”, pp 76 – 86 Ms Ljumanovic ’ s affidavit recorded that DCJ does not support the plaintiff being joined to the proceedings. The substantive basis for th at position appears in Annexure “ A ” to her affidavit which comprised a report of suspicious indicators of suspected sexual abuse of the child by the plaintiff . Those untested allegations are denied by the plaintiff, and the substantiation process was in accordance with the D epartment ’ s pol ic y criteria which had a low threshold for substantiation . (3) Plaintiff’s second affidavit - 5 April 2025 - Exhibit “A”, pp 87 – 96 The plaintiff ’ s second affidavit disclosed he has a current valid working with children clearance. His affidavit was focussed on commenting on material served on him by the D epartment , including the affidavit initially dated 2 0 March 2025 from the natural father later re-dated 11 April 2025 . In this affidavit, the plaintiff identified a number of factual matters which he claims are incorrect, including the claim that he had acted in an unregulated and unfocused way in his dealings with departmental caseworkers. In this affidavit he responded to reported allegations of sexual abuse by denying them. This affidavit identified th e date of 23 January 2025 which was when he instituted urgent proceedings in the Family Court following the mother being scheduled and admitted to a mental health facility as an involuntary patient at the request of the police. It is unnecessary here to review the many matters of disputed fact raised by the plaintiff in response to the content of the affidavit of the natural father initially dated 20 March 2025 and subsequently re-dated 11 April 2025 . It is sufficient to identify them as appearing in paragraphs 10, 12, 16, 18, 20, 25, 28, 30-31, 33-40, 42, 44 -45 of this affidavit . Ordinary considerations of procedural fairness require that the plaintiff have the opportunity to be heard on those matters, including an opportunity to challenge particular allegations as they have the potential to be influential on the outcome of the proceedings in the Children ’ s Court. (4) Affidavit of the natural father - 11 April 2025 - Exhibit “A”, pp 97 – 112 The natural father opposed the joinder of the plaintiff to the proceedings. The affidavit raises matters of factual dispute as outlined in paragraph [ 35 ] above. A significant number of those matters require resolution by the consideration of the counter factual matters. The resolution of those matters is outwith the scope of this interlocutory appeal. It is sufficient to say that much of the factual material is disputed and opinion based where the reasons which underpin such opinions requires assessment. (5) Affidavit of Courtenay Ritchie - 5 May 2025 - Exhibit “A”, pp 113 – 146 This affidavit by the departmental caseworker set out a summary of the relationships. It also set out matters of contention based on the factual input of the c hild ’ s mother in circumstances which are the subject of challenge by the plaintiff, most particularly a document dated 5 March 2025 from the Joint Child Protection Program “ alternate assessment ” which raised suspicious indicators for the sexual abuse of the c hild. The basis on which those indicators were “ substantiated at the time of the assessment ” are fact ual allegations which are denied and challenged by the plaintiff . The affidavit annexed an email dated 28 April 2025 from the c hild ’ s mother identifying the fact that she has mental and physical health problems and challenges the plaintiff ’ s application for joinder. In respect of the factual matters relied upon by the D epartment as claimed by the child ’ s mother and adopted by the D epartment, the question of proof on the balance of probabilities to the requisite standard having regard to the gravity of the allegations made arises starkly for consideration , where, al though the rules of evidence do not apply , adverse findings on serious matters of alleged misconduct should not be lightly made: Bronze Wing International Pty Ltd v Safe Work Australia [2017] NSWCA 41 , at [126]-[128]; Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd (1992) 67 ALJR 170, at p 171, qualifying the decision in Briginshaw v Briginshaw (1936) 60 CLR 336. (6) Plaintiff’s third affidavit - 7 May 2025 - Exhibit “A”, pp 147 – 155 This affidavit annexed a tabulation of the time the plaintiff spent with the c hild. This was prepared at the request of the Children ’ s Court. The affidavit identifies a claim that the D epartment has not afforded him an opportunity to respond to what he describes as the false allegations made against him. The affidavit has annexed to it as Annexure “ B ” , a copy of the plaintiff ’ s current working with children check issued to him on 2 October 2024. (7) Plaintiff’s fourth affidavit - 22 August 2025 - Exhibit “A”, pp 162 – 212 This affidavit was filed for these appeal proceedings. In addition to reciting matters already described in the plaintiff ’ s earlier affidavits, it provided updated factual material, it commented on the plaintiff's understanding of the mother ’ s present situation and raised matters of concern over the child ’ s welfare that cannot be resolved in the limited ambit of these proceedings. (8) Affidavit of Courtne y Ritchie - 5 September 2025 - Exhibit “A”, pp 213 – 357 This affidavit reiterated Ms Ritchie ’ s caseworker ’ s concerns regarding the joinder of the plaintiff to the proceedings. The affidavit recites matters of history some of which the plaintiff challenges. At paragraphs 73 to 75, Ms Ritchie concludes her affidavit by stating the Secretary opposes the joinder of the plaintiff, arguing that serious concerns are held regarding the risk that the c hild would be exposed to domestic violence “ or being placed at risk of sexual abuse ” , as well as holding concerns o ver the plaintiff being responsible for managing contact between the mother and the c hild given their history of domestic violence, including the plaintiff ’ s ability to facilitate an ongoing co-operative relationship with the c hild ’ s natural father. It is plainly apparent that the plaintiff wishes to challenge the factual basis of those concerns. He claims that the appealed order of the Children ’ s Court is that he has been unfairly prevented from doing so. There is no evidence of any attempts made by the Department to seek a conciliation of interpersonal differences between the natural father and the plaintiff. (9) Plaintiff’s fifth affidavit - 3 October 2025 - Exhibit “A”, pp 358 – 363 This affidavit essentially replies to the 4 September 2025 affidavit of Ms Ritchie and challenges all but one of the factual assertions made in that affidavit. It also reiterates the plaintiff ’ s challenge to the suitability of the child ’ s natural father to be the child ’ s carer. In this affidavit the plaintiff reiterates his bond of attachment with the child and his status as the psychological father. (10) Affidavit of Razeeha Reilly - 3 October 2025 - Exhibit “A”, pp 364 – 367 Ms Reilly is a solicitor in the firm that represents the plaintiff . This affidavit relates to a dispute between the plaintiff and Harness Racing New South Wales over the dat a content on the plaintiff ’ s mobile phone. Ms Reilly has had the data downloaded by a cyber expert and she has examined the content and states that she did not find any explicit sexual content concerning a child in the plaintiff ’ s care. Th at material is the subject of an appea l in another jurisdiction. Procedural history and factual background The Secretary ’ s Chronology of Events (Exhibit “ B ” ) p rovide s some relevant background to the proceedings . The c hild the subject of the proceedings is aged almost 5 years. She was assumed into care at the age of 4 years 2 months, and she was initially placed into the care of her adult half-sister on 13 January 2025. The plaintiff has not had contact with the Child since that time. Since that placement the Secretary has seen fit to terminate that placement for a time and then later restore placement to the child ’ s half-sister with certain supports despite earlier concerns as to suitability : T 49.12 – T49.20 . In those events, a t the time the joinder application was before the Children ’ s Court , the Secretary had taken the child out of the care of her half-sister and had placed her into the care of “ family friends ” and was seeking to “ restoring ” the child to the natural father, noting the mother ’ s unfitness: Exhibit “ A ” , p 7.45 – 7.50. That description was something of a misnomer as the child had never previously been wit hin the care of her natural father. On 22 January 2025, the plaintiff commenced proceedings in the Family Court , apparently seeking to protect his relationship to the child the subject of these proceedings. The Family Law proceedings were subsequently discontinued because of the proceedings that were ultimately commenced by the Secretary in the Children ’ s Court. On 3 February 2025 , care proceedings were commenced in the Children ’ s Court pursuant to s 61 of the Care Act . On 7 February 2025 , the Children ’ s Court made an interim order allocating parental responsibility for the child to the Minister. On 4 March 2025 , the plaintiff filed his application for joinder in the Children ’ s Court proceedings. On 11 April 2025, the child ’ s natu ral father , who until that time has had no substantial involvement in the child ’ s life, filed an affidavit in the Children ’ s Court proceedings opposing the plaintiff ’ s application for joinder. I n the course of argument in this appeal it was disclosed that i t appears from recent events that the Secretary is seeking to have the child placed in to the care of the natural father : s 10A(3)(a) of the Care Act . The Department has apparently assessed the natural father for suitability as a carer but no similar formal assessment of the plaintiff has been undertaken by the Secretary . The hearing of the substantive proceedings in the Children ’ s Court is set to resume in that Court on 5 December 2025. Consideration The Secretary ’ s opposition to the joinder of the plaintiff was based on concerns over his probity where those concerns have never been tested in the investigatory or forensic sense and where the Secretary has never called upon or invited the plaintiff to address or comment upon them . The plaintiff has never been interviewed by departmental caseworkers and he has never had a procedurally fair opportunity to respond to the allegations which have been made against him , where h e denies those allegations . I n ordinary litigation , where the probity of a person is put in issue and challenge d , the affected person would be entitled to a procedurally fair opportunity to forensically contest th os e allegations . Given that the Secretary mu s t be taken to be a model litigant, it is surprising that in considering the best interests of the child, the Secretary would on the state of the evidence oppose the plaintiff ’ s quest to seek to establish his eligibility as a carer given the uncontested mutual attachment that has thus far existed and given that the plaintiff has never been inter viewed by a departmental caseworker to obtain an impression of his commitment and attachment to the child and vice versa . That observation is even more surprising when one considers the florid extent of the mental illnesses suffered by the child ’ s mother as identified in paragraph [ 3 ] above, where she was interviewed by the D epartment whilst she was an involuntary patient in a Mental Health Inpatient Unit on account of her mental health conditions and substance abuse , where she was medicated and sedated, where she seems to have been a significant source of information provided to the D epartment: Exhibit “ A ” , pp 333 – 334. Those circumstances raise serious questions about the reliability of the information she has provided to departmental caseworkers. In my view, in the context of this litigation, having considered the evidence as a whole, subject to other considerations, t he plaintiff ’ s role as the child ’ s stepfather prima facie gives him the locus standi for joinder to the proceedings: s 4 and s 10A of the Care Act . Subject to satisfying discretionary consideration s , he would therefore be prima facie entitled to apply to have his evidence considered as to the genuineness of his intentions towards , and his ca r e for the child , assessed , including his future intentions for providing for the child : s 98(3) of the Care Act . The fact that the plaintiff ’ s longstanding connection to the child has been interrupted by the Secretary ’ s intervention is not of itself a disentitling factor , especially where a mutual attachment remains . The plaintiff ’ s application for joinder, as is t hus far discernible, is based on a series of propositions commencing with the fact from the ages of about 4 months to almost 11 months, the child has lived with him, she carries his surname as part of her name , she calls him “ Daddy ” with affection, h e is named on her birth certificate , s he is named as a beneficiary of his life insurance policy , and a mutual attachment remains . In such circumstances, s ubject to a finding that the plaintiff has a genuine concern for the safety, welfare and wellbeing of the child the subject of the proceedings, there is scope for him to be granted leave to appear in , and take an active part in the proceedings: s 98(3) of the Care Act . There is no one size fits all prescriptive test for determining the existence of a genuine concern for a child ’ s safety, welfare and wellbeing , where family dy namics and personal characteristics may vary across a broad but acceptable spectrum of circumstances. The discernment of the existence of a genuine concern is necessarily a flexible evaluative exercise. In my assessment, the evidence discloses the existence of a constellation of factors that justify a finding that the plaintiff holds a genuine concern for the child ’ s safety, welfare and wellbeing : s 98(3) of the Care Act . In summary, those matters include, first, the fact that steps were taken for him to be named on the child ’ s birth certificate and for the child to bear his surname despite not being the natural father . S econdly, he has taken financial responsibility for the child ’ s health insurance . T hirdly, he had taken historical steps indicating his preparedness to bear the cost of her education at a private school . F ourthly, she has been named as a beneficiary of his life insurance policy . F ifthly, he has in sofar as w as permitted by the health , behaviours , and attitudes of the child ’ s mother, been involved in the child ’ s care from the outset, despite interruptions due to the interpersonal difficulties that have flowed and vexed him as a result of the mother ’ s behaviours. Sixthly, by engaging lawyers and incurring the considerable and potentially ruinous expense of litigation, including in the Family Court and in the Children ’ s Court, and on appeal, he has shown a serious commitment to the child ’ s future , where t here is no reliable evidence or indicators of improper motives on his part. Seventhly, there is a mutual attachment between the child and her stepfather. Eighthly, the plaintiff ha d a current working with children check. I consider that i n those cumulative events, the plaintiff has shown by his actions, that he has displayed a strong and consistent commitment to the child ’ s future wellbeing. In my view, that assessment opens the interlocutory gateway for considering the discretionary factor of the plaintiff ’ s entitlement to be granted leave to be joined to the proceedings before the Children's Court to have a relevant voice in the proceedings, where he seeks to have the child placed with him , as the psychological father , where the determination of that ultimate question, will doubtless involve the need to resolve some key matters of factual dispute raised in the evidence . The evaluation of those matters is beyond the scope of this limited hearing , and it is within the remit of a resumed hearing in the Children ’ s Court, That said, as I am comfortably satisfied that the plaintiff has discharged the onus of showing , by his conduct and statements, that on the threshold question , he has a genuine concern for the child ’ s safety, welfare and wellbeing . As a consequence of that finding he should also be entitled to be ing afforded the procedurally fair opportunity to fore nsically challenge the contested factual allegations that have been levelled against him, ranging from the array of allegations made by the mother, and the suspicions held by the Secretary as to his suitability, where those suspicions , which the Secretary regards as “ substantiated ” , simply mean s they are more than just fanciful, but they are not corroborated: T 51.18 – T51.20; T55.10 – T55.12. I do not accept the counter-argument that it would be futile to order that the plaintiff be joined in the proceedings before the Children ’ s Court: T59.3. That argument seems to be based on an apprehension that the likely consequential delayed finalisation of the proceedings would have potential ly deleterious effects on the child pending the ultimate finalisation of the proceedings. Whilst I accept that the issue of delay is an important factor to be weighed in the balance and where reasonably possible it should be avoided, the suggestion that there could be deleterious consequences caused by delay , whilst understandable, is but one factor to be weighed, noting there is no medi cal or expert evidence to support such a contention. Furthermore, I consider that the factor of delay may be adequately met by the exercise of the inherent procedural power of the Children ’ s Court, like all Courts, to entertain an application by an affected party for an expedited hearing, especially where there has been a procedural delay to this point. The factor of delay is also adequately met by the fact that pending the finalisation of the proceedings the child remains in a stable, safe and supported placement with her half-sister ’ s family to the satisfaction of the Secretary . The Secretary ’ s opposition to the joinder of the plaintiff is based on the following series of propositions involving disputed reports of serious harm , as follows: There was a history of alleged violence perpetrated by the plaintiff towards the c hild ’ s mother in the c hild ’ s presence, commencing from when the child was aged 7 months and culminating in an AVDO being issued against the plaintiff in November 2021, and that the plaintiff had been in breach of that order; In September 2023 the plaintiff obtained an AVDO against the c hild ’ s mother as a consequence of an incident in which she had bitten him; Department of Communities & Justice ( DCJ ) received a report of serious harm that the plaintiff had sexualised material of the child on his mobile phone; On 24 January 2025, DCJ had received a report of serious harm that on or about 17 January 2022 , the plaintiff had placed his tongue in the c hild ’ s mouth and he had allegedly taken photographs of the c hild ’ s private parts ; On 5 March 2025, the c hild was interviewed by personnel from the Joint Child Protection Program at which time she disclosed that “ Daddy (referring to the plaintiff) hurt my fanny and put pepper in my bum ” . The plaintiff was not interviewed in that investigation . The D epartment considered this element , which is denied by the plaintiff, to be “ substantiated ” , which meant it was not considered to be fanciful, but not corroborated and requiring assessment as to risk (T51.10 – T51.30), where the evidence of the d epartmental caseworker was that it was not accurate to say that the child had made a disclosure that “ Daddy hurt my fanny and put pepper in my bum ” as that was not correct information, and it was conceded that the child had not made any disclosures of a sexual nature when interviewed: T 36.2 6 – T3 6 .32 ; The Secretary relied upon extracts from material produced on subpoena showing that between 10 August 2021 and 30 March 2022, there had been 11 Police Events concerning the plaintiff which variously involved allegations of domestic violence, alleged sexual touching of a child at risk, assault, and mental health issues. The plaintiff ’ s affidavit evidence takes issue with the serious allegations made against him and denies them. That said, this is not the form for resolving that dispute. The plaintiff ’ s contradictors in this case have challenged the plaintiff ’ s likely prospects of success as a basis for arguing that despite other things considered, the plaintiff should not be granted leave to be joined to the proceedings in the Children ’ s Court. Obviously, my assessment of the plaintiff ’ s prospects of success in the Children's Court is not intended to , and would not bind an assessment by the Children ’ s Court Magistrate. Instead, my assessment involves an objective overview of the array of the available evidence that is relevant to a determination of the reasonableness of those prospects . In that regard, the following factors are relevant: The factual disputes within the affidavit evidence must be grappled with where serious matters concerning the credibility and reliability of testimony will determine the outcome after following a process that is procedurally fair to all , where the child the subject of the proceedings is also owed procedural fairness in the sense of having all relevant evidence concerning her safety, welfare and wellbeing considered in the proceedings : s 9 of the Care Act : D v C; Re B (No 2) [2018] NSWCA 310, at [43]; The constellation of factors outlined at paragraph [ 64 ] above, are compellingly in favour of the discretion conferred by s 98(3) of the Care Act being exercised i n favour of the plaintiff , where objectively they each represent reasonable arguable factors that are relevant to the outcome of the proceedings; The question of p otential delay, whilst relevant as a concern, is capable of being addressed and managed as outlined at paragraphs [ 70 ] to [ 71 ] above. For the above reasons, I consider that the plaintiff has presented a reasonably arguable case that crosses the threshold beyond speculative conjecture to a case with reasonably arguable prospects of success, where he has established that he has a genuine concern for the child ’ s safety, welfare and wellbeing, and that he should be recognised as having a relevant voice that should be heard in her best interests in determining her future safety, welfare, wellbeing, care and placement. I now turn to the reasons for refusal of the application for judicial recusal as foreshadow ed at paragraph [ 13 ] above. Reasons for refusal of recusal application The Secretary ’ s application for judicial recusal was initially loosely articulated as being on the alternative bases of “ pre - judgment or apprehended bias ” : T 9.46. U ltimately , it centred around an asserted apprehension of bias. Pre - judgment , which must mean actual bias, was not ultimately argued. The evidentiary basis for the recusal application , in combination , comprised the proposed consent orders which were subsequently eschewed , and the transcript of proceedings on 24 November 2025. Shortly stated , t he well understood test for judicial recusal on the ground of apprehended bias has been succinctly described as the “ double might ” test, namely, whether a fair-minded lay obser ver might reasonably apprehend that a judicial officer might not bring an impartial and unprejudiced mind to the resolution of the questions to be determined in the proceedings: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, f ollowing Johnson v Johnson (2000) 201 CLR 488, at [11]. An assessment of the reasonableness of an assertion of apprehended bias requires two essential steps. The first step is the identification of what wa s said that might lead a judge to decide a case other than on its legal and factual merits . T he second step is the articulation of a logical connection said to be made between the matter identified and the feared departure from the required course of deciding the case on its merits : Ebner v Official Trustee in Bankruptcy (supra), at [8]. The consideration of those steps has been helpfully illustrated, analysed and explained i n Polsen v Harrison [2021] NSWCA 23, at [46] and [50], where the c ontext was identified as being a matter of focal importan ce . Relevant to these proceedings, the context and a special feature is that th is Court in effect sits as the Children ’ s Court and exercises that Court ’ s jurisdiction as conferred by the Care Act , where the jurisdiction is in part inquisitorial and protective , in that the contextual circumstances must be considered to ensure that decisions are made in accordance with the paramount principle embodied in s 9 of the Care Act , namely of the best interests of the children who are the subject of the proceedings: BW v Secretary, Department of Communities and Justice [2024] NSWSC 1354, at [144]. In that regard, the Secretary acknowledges that this Court, sitting as the Children ’ s Court, is not a consent jurisdiction that simply rubber stamps consent orders, where the role is supervisory and protective , as required by s 9 of the Care Act : T17.18 – T17.26. In Johnson v Johnson (supra), at [121] , attention was drawn to the fictional in dependent lay observer in the context of modern litigation where, in exchanges with counsel, a Court may express tentative views which , alone, whilst reflect ing a certain tendency of mind, should not be taken to indicate pre - judgment. In Polsen v Harrison (supra) , at [46] , in sub - paragraph s ( i )-(xxiii) and at [50] , in sub - paragraph s ( i)-(xiii), the Court of Appeal helpfully set out a series of givens as to what a reasonable observer of an exchange between a judge and a legal representative would have observed and be taken to know of or have informed her or himself o n, concerning a range of relevant matters. Included a mongst those matters for consideration were , in no particular order , the circumstances or context of the case, matters of impression, the responsibility to ensure the just determination of the proceedings, and the desire to understand the process, and , relevant to this case, the basis of an agreement between the parties. In considering an application for recusal on account of a claim of apprehended bias, parsing the considerations identified in Polsen v Harrison (supra), it is a given that the hypothetical fair-minded lay observer would reject notions of fanciful speculation o n the possibility of bias, not reach a conclusion of apprehended bias lightly, not be unduly sensitive or suspicious, know that interventionist comments by a judge will not unilaterally create an apprehension of bias where the intervention is aimed at seeking understanding of the process, where the legal or statutory context is relevant, where the cumulative effect of comments made by a judge should be considered rather than narrowly selected comments , and where subsequent explanatory statements may indicate the comment that raised concern over apprehended bias was not a final view and did not indicate a co mmitment to a particular point of view or outcome . At the time the proposed consent orders were being discussed, given the nature of the case and the jur isdiction, it was noted that in circumstances where the contested hearing was to commence on Monday 2 4 November 2025, unusually , after court hours on the previous Friday afternoon, the proposed consent orders were emailed to the Court w ithout any contextual background explanation : T1.18. When the hearing was c on ve ned on 24 November 2025 , those circumstances were drawn to the attention of the solicitor for the Secretary, he being the only legal representative in attendance to mention the matter at that time . At that time he was informed that (in accordance with prevailing practice for such matters, the Court Books had been read in preparation for the hearing), in the circumstances, the proposed orders were disturbing and puzzling in light of the evidence read, and at that time, a summary of th at material was outlined on the record . That summary made the Court ’ s concerns plain . T he solicitor for the Secretary , noting that concern, then sought to have the matter stood down in order to get in touch with the representatives of the other parties: T1.23 – T2.7. In that summary, i n the context of identifying the relevant statutory framework of the Care Act concerning the paramount principle of the child ’ s bests interests (s 9) , and the statutory hierarchy for the consideration of a placement (s 10A) where the plaintiff, the child ’ s stepfather was deemed by that status to be a relative (s 4) , the errata corrected record shows that the following was said: “… So the plaintiff in this case had an inviolable locus standi in the Children's Court proceedings, that's why I'm puzzled as to why this order was made, and that's why I find this disturbing. I'm shocked that the independent legal representative is not here and I would like to know why the father is - the stepfather is not here, given that he has a solicitor. Now, I'm happy to stand the matter in the list for a little while for you to make inquiries, but I think I've made my concern plain. ” [T2.1 – T2.7] The following exchange then occurred: “GRAHAM: I note your concern. Yes, if I can seek to stand the matter down and get in touch with the plaintiff and the independent legal representative. HIS HONOUR: Yes. Well, obviously my comments shouldn't be read as prejudgment, but given the evidence I've summarised and the statutory provisions, I just find this - these proposed consent orders (are) puzzling and I need them - I need the background to it explained.” [T2.9 – T2.15] Subsequently, o n reconven ing , in the presence of the plaintiff ’ s solicitor and the ILR each of whom were connected by AVL, the concerns that had been expressed to the solicitor for the Secretary were re prised in short form: T3.8 – T 3 .19. In that summary, attention was drawn to the view that the Children ’ s Court “ appears to have acted on the expedient route of delay, rather than engaged with the jurisdictional consideration ” . The following exchange then occurred: “ HIS HONOUR: Well, I'm in the parties hands. I need to have something explained to me, Mr Morris, and the first level of explanation is that I need to know that [the plaintiff] is sui juris and has been properly advised as to the significance of the order that's proposed. On one view, this is not just a consent jurisdiction, the ramifications of the orders made in this Court concerning appeals have long lasting and sometimes life changing consequences for the child, the subject of the appeal. MORRIS: Yes, he has been advised and advised by counsel. HIS HONOUR: Was he advised that, according to the statutory provisions I've referred to, that he has a locus standi in the proceedings and has a voice to be heard?” [T3.34 – T3.46] Following those remarks the parties took time to consider their positions, following which, the solicitor for the plaintiff indicated that he was instructed to withdraw his client ’ s consent to the proposed consent orders: T6.40. The matter was then adjourned for the day , with the hearing then scheduled to commence on the following day . O n that occasion when the parties, their solicitors and counsel attended, and after formalities , the hearing commen c ed with the Secretary ’ s application for judicial recusal. The Secretary dr e w upon the above cited remarks as to the plaintiff ’ s locus standi to argue that there w as the appearance of pre-judgment. The Secretary argued that the cited remarks, particularly the reference to the “ an inviolable locus standi ” remark, in “ effect ” and to “ paraphrase ” , indicated that “ a la y minded (sic) observer would see that as being an encouragement to [the plaintiff] to change his instructions to withdraw from the consent orders that he’s previously agreed to ” : T19.15 – T 19.20] . At this point it is relevant to observe that the actual words used and the context of that u se that base the recusal application are important, and more important than substituted interpretations that describe an asserted effect using the device of paraphrase. In applying the test in Ebner v Official Trustee in Bankruptcy (supra) identified at paragraph [ 81 ] above, as explained in paragraphs [ 82 ] to [ 84 ] above, the Secretary ’ s application for recusal should be rejected as it does not satisfy the required “ double might test ” for the following reasons . The application fails at the first step because of the context, where the jurisdiction is supervisory and protective , and where the Court ’ s request was for an explanation given the statutory provisions cited, and where , in context, it was clearly stated that the remarks in question were not to be read as a pre - judgment of the issues , which necessarily indicated they were impressionistic and not determinative . In those circumstances, the hypothetical fairminded lay observer would have significant regard to the expressed non -pre-judgment qualification concerning those impressionistic remarks, and that observer would also perhaps wonder what the judge would or might have read in the Court Books which had led to those impressionistic remarks, where the question raised was clearly an exercise of the protective and supervisory element of the jurisdiction, and not an indicati ve of a final conclusion on any issue yet to be decided . The Secretary ’ s argument to the contrary was that the reference to the existence of a locus standi , an issue in the appeal, was repeated after the non-pre-judgment remark: T 17.36. However, the basis for that argument seems undermined somewhat , if not inconsistent, by the Secretary ’ s concession that a qualifying reference to non-pre-judgment does not need to be repeated each time a comment is raised for discussion : T14.24 – T 14.26. In that regard, the overall conte x t is an important consideration : Isbester v Knox City C ouncil (2015) 255 CLR 135; [2015] HCA 20, at [20] . T he parties were informed at the time of the recusal application that the cited remarks were not intended to encourage the plaintiff ’ s withdrawal of consent to the dismissal of his appeal : T19.22 – T19.25 . However, w hether that was the effect, is a question to be considered objectively elsewhere if a party sees fit to take that course. On that note, the second element of the “ double might ” test emerges for consideration, namely whether the remarks in question were a causal factor in the plaintiff changing his instructions concerning the proposed consent orders . This was a question posed to counsel for the Secretary at the hearing as a stumbling block for the second element of th e test for judicial recusal (T19.11.), namely, w hat a hypothetical fairminded lay observer would thin k as to a causal connection concerning those events? Two perspectives arise. First, in the unique circumstances of the hearing, this being a closed c ourt environment where no lay persons would be permitted to be there as observe r s, where only interested parties and practitioners would be present. I n those circumstances, t here would be questionable scope for the mythical presence of a lay observer. That theoretical observation aside, secondly , the argued connection between the cited remarks and the withdrawal of prior instructions to consent to a dismissal of the appeal must necessarily be seen to be based on suspicion and speculation. A fairminded lay observer would not form a view based on suspicion: Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48, at [53] A fairminded lay observer would not speculate on what might have transpired in the out of court privileged telephone conversation that took place between the plaintiff and his solicitor prior to the change of instructions. In those circumstances the causal connection asserted by the Secretary must be seen to rise no higher than impermissible speculation: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 , at [8], [10] ; Bradshaw v McEwan Pty Ltd (HCA, 1952, unreported) . For the foregoing reasons, the Secretary ’ s application for judicial recusal was rejected. Orders I make the following orders: Appeal allowed; Set aside the order of the Children's Court made on 9 May 2025 refusing joinder of the plaintiff to the proceedings numbered 2025/00045900; Leave granted to the plaintiff for his joinder to Children's Court proceedings numbered 2025/00045900; The plaintiff is joined to the Children ’ s Court proceedings numbered 2025/00 045900; The proceedings are remitted to the Children's Court for the scheduled resumption of the hearing on 5 December 2025; Liberty to apply on 7 days ’ notice if further or other orders are required. ********** Amendments 01 December 2025 - Paragraph [104] typographical error "casual" should read "causal" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 December 2025