District Court New South Wales Medium Neutral Citation: CS & TC v Secretary, Department of Communities and Justice & Anor [2021] NSWDC 16 Hearing dates: 2 February 2021 Date of orders: 17 February 2021 Decision date: 17 February 2021 Jurisdiction: Civil Before: R. J. Weber SC DCJ Decision: (1) That the summons be dismissed; (2) That leave to make an application for rescission or variation of the care order be refused; and (3) That the decision of the Children's Court dated 10 September 2020 be affirmed. Catchwords: APPEAL — CHILD WELFARE — Care proceedings — Care order Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Family Law Act 1975 Cases Cited: JL v Secretary, Department of Family and Community Services [2015] NSWCA 88 In the Matter of Campbell [2011] NSWSC 761 at [38] M v M (1988) 166 CLR 69 Re Kerry (No 2) [2012] NSWCA 127 S v Department of Community Services [2002] NSWCA 151 Category: Principal judgment Parties: CS (First Plaintiff) TC (Second Plaintiff) Secretary, Department of Communities and Justice (First Defendant) Sharon Moore, Independent Legal Representative for the Children (Second Defendant) Representation: Counsel: Mr B Dean (First & Second Plaintiffs) Mr M Anderson (First Defendant/Secretary) Mr Graham (Independent Legal Representative) Solicitors: NLS Law (First & Second Plaintiffs) Crown Solicitor's Office (Secretary) Sharon Moore Solicitors (ILR) File Number(s): 2020/00288818 Publication restriction: Pursuant to s 105 of the Children and Young Persons (Care and Protection) Act 1998, the names of the children mentioned within this judgment are not to be published. Judgment Introduction 1. This is an appeal from a decision of the Children's Court of 10 September 2020, in which that Court refused the plaintiffs leave to apply to rescind or vary a Care Order. 2. Such leave is a requirement of section 90 of the Children and Young Persons (Care and Protection) Act 1998 ("the Care Act"). Notwithstanding the use of the concept of "leave", which is often associated with interlocutory applications from which appeals are often by leave, the authorities make clear that the refusal of leave pursuant to s 90 is appellable as of right pursuant to the provisions of section 91 of the Care Act (S v Department of Community Services [2002] NSWCA 151 at [52]-[53]). Background 1. The plaintiffs, who when I shall need to differentiate between them I shall referred to as "CS" and "TC", or otherwise as "the Parents", are the biological parents of the children, who I will refer to as "KLS" and "ILS" ("the Children"). 2. KLS was born in June 2011, while ILS was born in March 2014. Thus, at the time of the hearing KLS was nine years of age, turning 10 in June, while ILS was six years of age, turning seven next month. 3. Prior to June 2014, the Children resided with the Parents in company with certain of their half-siblings. 4. On 5 June 2014, an Application and Report initiating care proceedings ("the Original Application") was filed by the Secretary of the Department of Family and Community Services ("the Secretary") seeking that parental responsibility for the Children be allocated to the Minister until they attain the age of 18 years. The grounds were as follows: 1. That the Children have been, or are likely to be, physically abused or ill-treated (s 71(1)(c) Care Act); and 2. That the Children are suffering or are likely to suffer serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which he or she is living (s 71(1)(e) Care Act). 1. The Original Application narrated numerous risk of significant harm reports which had been received in relation to the Children and their half-siblings. These concerns were well supported by evidence of that risk of harm, the detail of which it is unnecessary to narrate here, other than to say that the perceived risk was of physical abuse by the father, CS, which involved inter alia allegations of beating one of the Children's half-siblings with a belt. The allegations of physical abuse came from multiple sources, and were to some extent corroborated by hospital records, which in one case showed that one of the half-siblings, who I shall refer to as "SCA", presented to hospital with bruising that is consistent with being beaten with a belt. 2. The material before the Children's Court also included the judgment of Terry J in proceedings under the Family Law Act 1975 between CS and his former wife, and the report of Mr Paris, a Regulation 7 Family Consultant, who prepared a family report for the assistance of Court, and upon which report her Honour relied. This material also amply demonstrated a basis for the apprehension of risk of harm to the Children. 3. The evidence before the Children's Court in 2014 also disclosed that each of the parents demonstrated a lack of engagement with caseworkers, and were refusing to sign a safety plan mitigating the risks identified to ensure the ongoing safety of the Children. The Secretary questioned TC's parenting capacity and what was described as her "total disregard for the children's needs", as recorded in the Care Plans filed antecedent to the making of final orders. 4. The Secretary's position in relation to the Original Application was put in the Summary of the Proposed Care Plan as follows: Family and Community Services [("FaCS")] do not view restoration as a realistic possibility at this point in time. Concerns remain in regards to [TC] and [CS]'s inappropriate parenting and discipline practices, and insight in regards to the harm that [CS] has caused to [SCA]. In addition to these issues, FaCS have concerns in regard to the nature of [TC] and [CS]'s relationship, including their insight in relation to domestic violence and the impacts and effects upon the children. It is concerning that [TC] does not acknowledge that [CS] poses a risk to the children, and refuses to believe that he has caused actual harm to [SCA]. When JIRT [(the Joint Investigation Response Team)] spoke with [TC] about [SCA]'s disclosures, [TC] was nonbelieving and she and other family members blamed [SCA] for the circumstances the family found itself in. At this point in time FaCS does not consider that there is a realistic possibility of children, [KLS] and [ILS] being restored to their father [CS]'s care or any of the children being restored to their mother's care for reasons outlined above. 1. The Parents opposed the orders sought by the Secretary. In an Affidavit affirmed 15 October 2014 (Exhibit C1), in response to the proposed Care Plans allocating parental responsibility to the Minister, CS affirmed his position in opposition to the Original Application, and in the following terms he stated: [At 6. c.] I continue to deny the allegations that I have harmed any of my children or [SCA] or [JCA]; [At 10.] I have completed One – Two – Three Magic and Emotion Coaching Parent Course; [At 11.] I have completed the Circle of Security Parenting Program; [At 12.] I no longer associate with any people that I know have a criminal past and drug past; [At 13.] I do not use drugs or drink alcohol to excess. 1. On 23 October 2014, the Children's Court made a Final Care Order in respect of the Children, in terms as sought by the Secretary. The Arrangements for the Children since the Final Order 1. The Children and their half-sister, SCA, began residing with an authorised carer from June 2014. In August 2017, that placement was transferred to another authorised carer who was and remains located on the Central Coast. At some stage thereafter, SCA ceased to be accommodated at the home of the same carer, but the Children have remained so accommodated since August 2017. 2. In the period from August 2017, the Children have been happy, contented, and have developed a close bond not only with their carer, but also with the carer's extended family. They attend the local school, at which they are happy, well settled, and performing well. They have monthly supervised contact with their parents, which arrangement is also apparently successful. 3. Crucially, both of the Children have made it clear to the Court that they do not wish to return to their parents' household, rather that they wish the current arrangements to subsist until they attain their majority. Mr Graham of Counsel who appeared as an Independent Legal Representative for the Children opposed the parents' application, and confirmed that the Children's views remained as I have set them out up to the date of the hearing. The Statutory Framework 1. The Summons brought under section 91 of the Care Act seeks to set aside the decision of the Children's Court of 10 September 2020, and in substitution therefor an order granting leave to the plaintiffs to commence an application for the restoration of the Children to the care of the Parents. 2. As I have earlier indicated, the requirement for leave arises under section 90 of the Care Act, which is in the following terms: 90 Rescission and variation of care orders (1) An application for the rescission or variation of a care order may be made with the leave of the Children's Court. (1AA) An application may be made by— (a) the Secretary, or (b) (Repealed) (b1) the child or young person, or (c) a person having parental responsibility for the child or young person, or (d) a person from whom parental responsibility for the child or young person has been removed, or (e) any person who considers himself or herself to have a sufficient interest in the welfare of the child or young person. (1A) Subject to any order the Children's Court may make, a person who makes an application under this section must give notice of the application to the persons who were parties to the proceedings in which the care order was made. Note— Section 256A sets out the circumstances in which the Children's Court may dispense with the requirement to give notice. (2) The Children's Court may grant leave if it appears that there has been a significant change in any relevant circumstances since the care order was made or last varied. (2A) Before granting leave to make an application to vary or rescind the care order, the Children's Court must consider the matters set out in subsections (2B) and (2C). (2B) The primary considerations are as follows— (a) the views of the child or young person and the weight to be given to those views, having regard to the maturity of the child or young person and his or her capacity to express his or her views, (b) the length of time for which the child or young person has been in the care of the present carer and the stability of present care arrangements, (c) if the Children's Court considers that the present care arrangements are stable and secure, the course that would result in the least intrusive intervention into the life of the child or young person and whether that course would be in the best interests of the child or young person. (2C) Additional considerations are as follows— (a) the age of the child or young person, (b) the nature of the application, (c) the plans for the child or young person, (d) whether the applicant has an arguable case, (e) matters concerning the care and protection of the child or young person that are identified in— (i) a report under section 82, or (ii) a report that has been prepared in relation to a review directed by the Children's Guardian under section 85A or in accordance with section 150. (2D) The Children's Court may dismiss an application for leave under this section if it is satisfied that the application is frivolous, vexatious or an abuse of process. (2E) Without limiting subsection (2D), the Children's Court may dismiss an application for leave under this section if it is satisfied that— (a) the application has no reasonable prospect of success, and (b) the applicant has previously made a series of applications for leave under this section that the Court has dismissed. (3A) If— (a) an application is made to the Children's Court by a person or persons (other than the Secretary) for the rescission or variation of a care order (other than a contact order) in relation to a child or young person, and (b) the application seeks to change the parental responsibility for the child or young person, or those aspects of parental responsibility involved in having care responsibility for the child or young person, and (c) the Secretary is not a party to the proceedings, the applicant must notify the Secretary of the application, and the Secretary is entitled to be a party to the application. (4) The Children's Court is not required to hear or determine an application made to it with respect to a child or young person by a person referred to in subsection (1AA)(e) unless it considers the person to have a sufficient interest in the welfare of the child or young person. (5) If— (a) an application for variation of a care order is made or opposed by the Secretary, and (b) a ground on which the application is made or opposed is a ground that has not previously been considered by the Children's Court, the ground must be proved as if it were a ground of a fresh application, or of opposition to a fresh application, for a care order. (6) Before making an order to rescind or vary a care order that places a child or young person under the parental responsibility of the Minister, or that allocates specific aspects of parental responsibility from the Minister to another person, the Children's Court must take the following matters into consideration— (a) the age of the child or young person, (b) the views of the child or young person and the weight to be given to those views, (c) the length of time the child or young person has been in the care of the present caregivers and the stability of present care arrangements, (d) the strength of the child's or young person's attachments to the birth parents and the present caregivers, (e) the capacity of the birth parents to provide an adequate standard of care for the child or young person, (f) the risk to the child or young person of psychological harm if present care arrangements are varied or rescinded. (7) If the Children's Court is satisfied, on an application made to it with respect to a child or young person, that it is appropriate to do so— (a) it may, by order, vary or rescind an order for the care and protection of the child or young person, and (b) if it rescinds such an order—it may, in accordance with this Chapter, make any one of the orders that it could have made in relation to the child or young person had an application been made to it with respect to the child or young person. (8) On the making of an order under subsection (7), the Children's Court must cause notice of the order to be served on the Secretary. (9) This section does not apply to an application to vary an interim care order. Note— Section 90AA provides for applications to vary interim care orders. 1. The principles concerning the exercise of the judicial discretion to grant leave pursuant to section 90 were not in dispute. 2. In JL v Secretary, Department of Family and Community Services [2015] NSWCA 88 ("JL"), Basten JA stated at [200]: "...While the separate parts of s 90 might have been better drafted, the apparent effect of s 90(2) is that the power to grant leave is only triggered where the Children's Court is satisfied that a significant change in circumstances has occurred. That is a matter as to which the applicant bears the onus of proof." 1. In JL, McColl JA stated at [117]: "...The legislative policy behind the requirement for leave in s90 is to reduce uncertainty and anxiety for children in care when applicants apply for variation of Court orders, when they have little prospect of succeeding. 1. See also, In the Matter of Campbell [2011] NSWSC 761 at [38] ("Campbell"). 2. All decisions made under the Care Act, including those by the Courts, are subject to the principle that "the safety, welfare and well-being of the child or young person are paramount": Section 9(1) Care Act; Re Kerry (No 2) [2012] NSWCA 127. 3. Section 90 reflects the long-standing policy of the law to prefer the interests of children to the rights of those seeking to agitate custody disputes (M v M (1988) 166 CLR 69 at [76]; Campbell at [40]). Has there been a Significant Change in any Relevant Circumstances? 1. The gateway to the potential exercise of a judicial discretion to grant leave pursuant to section 90, is that contained in section 90(2). While the establishment of a significant change in relevant circumstances is a necessary condition for leave to be granted, it is not a sufficient condition (Campbell at [48]). 2. As to the adjectives "relevant" and "significant", obviously what is "relevant" will depend on the issues presented for the Court's determination. A change will be "significant" if it is of sufficient significance to justify the Court's consideration of an application for recession or variation of the existing care order (S v Department of Community Services [2002] NSWCA 151 at [23]; Campbell at [43]). 3. Importantly, the Parents continue to deny that CS has ever been physically abusive to his children or stepchildren. In addition, the Parents point to the following as constituting such a change of circumstances: 1. That CS has been abstinent from drugs and alcohol for over 10 years; 2. That there has been no domestic violence in the relationship between the Parents; 3. That other than in relation to certain traffic infringements CS has not been involved with law enforcement for several years and has not been charged with an offence since the final order; 4. That both of the Parents are employed, financially secure, and live in stable rental accommodation; 5. That the plaintiffs have attended a number of parenting progress programs and have gained insights into parenting as a result of such programs; 6. That CS acknowledges his history of impulsive behaviour and putting people in fear, which people includes his children; and 7. That CS attended on the Alternatives to Violence program. 1. The Secretary, who opposes the appeal, and thus the grant of leave, submits that as the Parents continue to deny CS's violent behaviour towards his children and stepchildren, that continuing denial demonstrates a lack of appreciation of the reasons which lead to the orders, which caused the parenting responsibilities been taken from them and allocated to the Minister. It was submitted by the Secretary that the Parents had gained no insight into the patent defects in their parenting, and as a consequence those defects in parenting, which led to the original order, remain in place. This situation, the submission continued, suggested that there had been no significant relevant change in circumstances. 2. In my view, there is much to be said for the Secretary's submission. 3. As I have indicated, the Parents, in the appeal before me, continued to deny that CS had ever physically abused his children or stepchildren, in any way. This was their position in 2014. I have also previously indicated that, in his opposition to the Original Application of the Secretary, CS also relied upon such matters as his attendance at programs designed to promote better parenting, and on the fact that he no longer used drugs or drank alcohol to excess. 4. It is to be seen, therefore, that overwhelmingly the matters which were put before the Court in opposition to the Original Application in 2014, were the same matters which are relied upon in this appeal, as was the continuing denial by the Parents of any problem with their parenting. Those contentions were unsuccessful in 2014, and there has been a judicial finding that, on the balance of probabilities, there was an unacceptable risk of harm to the Children should they remain in the custody of the Parents. 5. It is well to note that there was no appeal from the 2014 Final Care Order. 6. In reality, what the present application seeks to do is to challenge the correctness of the 2014 orders, with reliance on what are basically the same facts as were rejected by the Children's Court in 2014. 7. I thus find that to the extent to which there has been any change of circumstances between the time of the original orders and now, such change could neither be validly described as either: 1. Relevant; or 2. Significant. 1. As such, the threshold requirement of section 90(2) has not been met, and no judicial discretion to allow the grant of leave is enlivened. 2. This finding is sufficient to dispose of the appeal, but as the requirements of sections 90(2B) and 90(2C) were ably addressed by the parties, I shall briefly express my findings in relation to such of these subsections as were raised in submissions. Section 90 Subsection (2B) – Primary Considerations 1. The first mentioned of the primary considerations is the views of the child. Understandably, the legislature has indicated that the weight to be given to those views will depend on the maturity of the child. In the present case, the Children are 6 and 9 years of age. They have been living with their present carer for over three years, which represents a significant part of their young lives. They have expressed a consistent and unequivocal wish to remain with their carer, and thus to have the status quo remain undisturbed. It was submitted on behalf of the Parents that, given the age of the Children, little weight ought to be given to their views. 2. I do not accept that that is the case. The Children have had experience of living with parents, and now the experience of living with the carer. They are happy and settled, both in their domestic arrangements, and in relation to their educational needs. I do not consider that they are at an age where their clearly expressed views are able to be disregarded, and do not proposed to do so. 3. Subsection (2B)(b) concerns the length of time for which the child has been in the care of the present care and the stability of the present care arrangements. As I have indicated, the Children have been in stable arrangements, with which they are happy, for over three years. 4. Subsection (2B)(c) concerns the situation where the present care and arrangements are stable and secure, and looks first to the course which would result in the least intrusive intervention into the life of the child, and secondly as to whether that course would be in the best interests of the child. I do not consider that this consideration has any role to play in the current application, as the authorities make clear that it and similar subsections are only relevant where an intrusion is contemplated in order to protect the child from harm, rather than an application such as the present, which is to displace existing care arrangements (see Campbell at [34] to [37]). Section 90 Subsection (2C) – Additional Considerations 1. Of the additional considerations provided under subsection (2C), the only additional consideration which was argued before me was paragraph (d) which requires the Court to consider whether the applicant has an "arguable case". It is well established that, in this context, an arguable case is one which has some prospects of success (Campbell at [50]). The arguable case to which the section refers is an arguable case for rescission or variation of the care order, should leave be granted. 2. The Secretary argued that there was no relevantly arguable case in relation to the order sought by the applicant. I agree with this contention. The failure of the parents to come to grips with the reasons which led to the original care order to be made in 2014, together with reliance on the same matters as the Children's Court rejected, to my mind leads inexorably to the conclusion that they would not have an arguable case, in the sense to which I have referred, if leave were granted. Conclusion 1. For these reasons I do not believe that this is an appropriate case for the grant of leave. I am bolstered in that conclusion by reference to the underlying principles of the Care Act articulated in section 9, and especially in subsection (1) thereof, which is in the following terms: This Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount. 1. In my view, those considerations point overwhelmingly to the conclusion that leave be refused. Orders 1. I make the following orders: 1. That the summons be dismissed; 2. That leave to make an application for rescission or variation of the care order be refused; and 3. That the decision of the Children's Court dated 10 September 2020 be affirmed. ********** 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: 17 February 2021