NEW SOUTH WALES COURT ISSUES JUDGEMENT FOR VASILIY SHAPKIN V/S SECRETARY, DEPARTMENT OF COMMUNITIES AND JUSTICE, ET AL. CASE

Australia, June 2 -- New South Wales Land and Environment Court issued text of the following judgement on May 2:

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. 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. 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

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.

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.

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.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1968a5a0f3eee4444ceceee3)

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