New South Wales District Court CITATION: SJ and Ors v Department of Community Services [2008] NSWDC 347 HEARING DATE(S): 18/11/08 JUDGMENT DATE: 25 November 2008 JURISDICTION: Civil JUDGMENT OF: Norrish QC DCJ DECISION: Appeal dismissed. CATCHWORDS: CIVIL - appeal - care orders made in the Children's Court - ss 90, 91 Children and Young Persons (Care & Protection) Act 1998 - significant change in relevant circumstances - powers of the District Court on appeal from the Children's Court LEGISLATION CITED: Children and Young Persons (Care & Protection) Act 1998 Children (Care and Protection) Act 1987 Re: Edwards [2001] NSWSC 284 CASES CITED: Stevens v Langham (District Court of New South Wales, Ainslie-Wallace J, 28/11/2003, unreported) The Matter of Jasper (2006) CLN2 (30/01/2006) The Matter of Jack (Magistrate Hunt, 26/09/2002, unreported) SJ & JO - Appellants PARTIES: Department of Community Services - Respondent C & L - Respondent FILE NUMBER(S): 16/07 COUNSEL: Mr Anderson - Respondent SOLICITORS: Mr Kozera - Appellants Mr Boyd - (Independant legal representation for C & L) JUDGMENT Introduction 1 HIS HONOUR: In this matter the applicants SJ, the father, Mr and Mrs J, the paternal grandparents and JO, the mother, of the subject children, appeal the decision of the Armidale Children's Court of December last year, refusing leave to entertain an application for variation or recision of care orders made in the Children's Court in respect of the children on 7 December 1999 and 5 August 2002. 2 The order of the Children's Court, the subject of the current appeal, was made on 6 December 2007. In the conduct of the appeal, the applicants are represented, as is the Director-General of the Department of Community Services, representing the Department and/or the Minister. The children were separately represented. 3 The children in question are firstly C, a female who was born on 14 July 1994 and L, a male born on 18 June 1997. The parents of the children, that is the mother, JO, and the father, SJ, no longer cohabit. They have in fact been separated for many years. The children have been in the care of the Department in one form or another since 1997. Firstly, C came into Departmental care in approximately April 1997 and then L came under Departmental care shortly after his birth and on his release from the hospital. L was apparently quite seriously ill on birth due to what would appear to be his addiction arising from the drug addiction of his mother at the time of his birth. 4 After various adjournment orders were made placing the children in Departmental care, on 7 December 1999 an order was made placing the children in the care of the Minister, making them "Wards" under the Children (Care and Protection) Act 1987. I should point out that the grandparents who are current applicants in these proceedings, had sought custody of the children in 1998 but were unsuccessful. The children were placed under the care of the Minister until the age of eighteen years or I would assume until further order of a court. 5 On 5 August 2002 an interim order was made allowing limited contact, firstly by correspondence and telephone and then by personal contact between the grandparents and the children. This order was made pursuant to the Children and Young Persons (Care and Protection) Act 1998 on the application of the paternal grandparents. 6 The applicants, who were denied leave in the Children's Court in December 2007, claimed that there had been significant changes since the making of previous orders. 7 The applications sought, amongst other things, supervised contact and other forms of contact. The grounds of the application included claims that it was in the best interests of the children that contact be made with the natural family and that the carers, that is the foster parents, have destroyed any affection had by the children for the biological parents and the grandparents. 8 The appeal in this matter set out in the summons various grounds of appeal. Many of the grounds of appeal raise what are clearly described as questions of law. In argument, a question of law was put forward concerning the legal effect of the order made in August 2002, to which I made reference. The issue was whether, "The interim order was still in force and whether there was any need for the court to grant leave in the circumstances of the matter". 9 The Court determining this appeal has no jurisdiction to determine questions of law per se. The powers of this court are set out in s 91 Children and Young Persons (Care and Protection) Act 1998 to which I will refer shortly. As the matter unfolded, the particular questions of law which were identified fell away and ultimately were not pressed. 10 The appeal as it may be described, proceeded as a rehearing upon the material available to the magistrate, as well as additional material ordered by this Court, either on 23 April 2008 or 15 May 2008. 11 That produced the report of Dr Ann Hollingworth, which is undated but which was returned to the Court by 18 July 2008. In its terms it shows inquiries that were undertaken throughout June 2008 and I will refer to it as the Hollingworth report. A further report was received from Cinzia Gagliardi. This report is dated 21 October 2008. Ms Gagliardi is a forensic and clinical psychologist and is apparently the treating psychologist of JO. I shall refer to that report as the Gagliardi report. 12 I have considered these reports in the context of the earlier material presented, including the background material and the evidence that was available to the Children's Court in respect of the application the subject of the current appeal. I have had regard to the various affidavits that were sworn throughout 2007 and filed on behalf of the various applicants. I have particularly had regard to the evidence contained in the affidavits of Majors Stan and Connie Hindle, officers of the Salvation Army. Legislative Framework 13 Section 90(1) of the Children and Young Persons (Care and Protection) Act 1998 states that "An application for recision or variation of a care order may be made with the leave of the Children's Court." Section 90(2) of the Act states that the Children's Court may grant leave if it appears that there has been significant change in any relevant circumstances since the care order was made or last varied. It is clear from the terms of the Act that the procedure on this appeal follows that of the procedure within the Children's Court and the test in relation to the determination of this appeal is that set out in s 90, concerning the grant of leave. That is, that there has been established "significant change in any relevant circumstances since the care order was made or last varied". 14 Here, I am prepared to accept that I am concerned with significant change from either the date of the original care order, 1999, or the date of the variation made on 5 August 2002. Clearly, there have been changes. The critical issue is whether there has been significant change in any relevant circumstances. 15 Section 90(2)(A) of the Act provides that before granting leave to vary or rescind the care order, the Children's Court must take various matters into consideration. 16 Firstly, the nature of the application and the age of the child or young person and the length of time for which the child or young person has been in the care of the present carer and the plans of the child and whether the applicant has an arguable case. There are other provisions in s 90, many of which are concerned with the test to be applied in determining whether variation or recision ought be made and clearly matters set out. For example, in s 90(5) and s 90(6). Particularly the latter provision may be relevant to the issue of whether there is an arguable case. 17 In relation to an appeal, s 91 provides that a party to proceedings is dissatisfied with the order of the Children's Court, he or she may appeal to this court. Section 91(2) provides that an appeal is to be by way of a new hearing and fresh evidence or evidence in addition to or in substitution for the evidence on which the order was made, may be given on appeal. In this particular matter, the matter has proceeded with new evidence, in addition to that evidence which was available when the order was made, the subject of the appeal. 18 The Court has received the transcript of the Children's Court and exhibits tendered during those proceedings as well as additional material in accordance with s 91(3) and various powers set out under s 91 in respect of the determination of the appeal that I need not deal with. Section 90 was considered of Re Edward [2001] NSWSC 284 in the judgment of Kirby J, particularly at paras (23) to (26) and para (37). As Mr Kozera, who has skilfully represented his clients' interest has submitted that the application proceeds as not a proceeding "inter pares" but as one directed to the Court by the applicants for consideration of the merits of their application. 19 The objects of the legislation underpin the determination of issues provided for in the Act. 20 Chapter 2 sets out Objects, Principles and Responsibilities. I have had regard to ss 7 and 8. I note s 9, the "Principles" to be applied in the administration of the Act, which I need not dilate upon. I also note what was drawn to my attention by Mr Kozera, as I must, in the matters set out in s 10, described as "The Principle of Participation". 21 Section 9 and related matters were discussed in Edward at paras [45] to [54]. In Stevens v Langham, an unreported decision of my sister judge Ainslie-Wallace of 28 November 2003, her Honour considered these provisions and concluded that an appeal of this character was only an appeal, as described in s 91, against the refusal of leave and not a rehearing of the application to rescind or vary previous orders (see pp 6 to 8). No one here has suggested to the contrary. 22 I have also been drawn to two judgments of experienced Magistrates of the Children's Court. Those judgments are "The Matter of Jack", a decision of Magistrate Hunt of 26 September 2002 and "The Matter of Jasper", (2006) CLN2 (30 January 2006), a decision of the Chairman of the Children's Court, Magistrate Mitchell, a very experienced practitioner in this area. The decisions, of course, are of persuasive quality, they are not binding on the Court. But, in any event, they provide guidance as to relevant consideration of difficult issues from two persons of great experience in this area of the law. The Appeal 23 The applicants submit in essence that the reports subsequent to the magistrate's order of December 2007, the subject of appeal, in conjunction with other material available before the order was made, point to the existence of a significant change in a relevant or relevant circumstances, in a relevant circumstance or relevant circumstances that warrant the grant of leave. A particular emphasis is placed in the Gagliardi report, supported by the Hollingworth report. 24 Specifically, I am drawn to parts of p 3 of the Gagliardi report, indicating, firstly, a need to fully address the attitude of the carers, Mr and Mrs K and secondly, the desirability of steps to be taken to address the need for the children to have an outlet outside of the foster family to discuss their sense of identity, their ideas around family and particularly facilitating their access to organisations that work with foster children in this regard, such as the organisation described as 'CREATE'. 25 Other matters averted to include the acceptance of the role of the carers by the biological relations, particularly the grandparents and the father, greater focus now demonstrated, particularly by the grandparents and the father upon the children, the developing need to build bridges between the children and the biological family and other matters, particularly set out at pp 16 and 17 of the "Hollingworth report". 26 Reliance is also placed in material presented to the court on steps taken by the grandparents, particularly, to come to terms with their alienation from their grandchildren. 27 The leave that is sought through this appeal is opposed by the Director-General of the Department and the representative of the children. The argument put on behalf of these two parties is that there has been no significant change of relevant circumstances. Particularly, the Director and the children's representative point to what is said to be overwhelming evidence that the children's attitudes have not changed. The needs of the children have not changed and ultimately, when one considers the attitude of the biological family, nothing significant has changed since 1999 or 2003. Background 28 As I indicated earlier, C was placed in the care of Mr and Mrs K in April 1997. L was born approximately two months later and ultimately, as I said earlier, placed in the care of Mr and Mrs K shortly after his birth on his release from hospital. The two children have known in their conscious memory no other "parents" other than their foster parents, in terms of daily care and nurturing. 29 The mother and father of the children were persons with drug and other dependencies, as well as other issues between themselves. L was born drug dependent, as I earlier indicated. The mother of the children was in fact in prison from late 1998 until mid 1999. During this period the grandparents applied for custody of the children. It would appear that a continuing source of frustration on their part is that they were not properly assessed at that time as appropriate persons to look after the children, before the children were ultimately, in effect, permanently placed in foster care. There may be some merit in this argument. 30 The mother and the father have been the subject of various reports and concerns on the part of the department in relation to their care of C between 1994 and 1997. When C was a very small child, before L was born, there were concerns for risks to C due to the parents' drug and alcohol dependency and reported domestic violence issues. A baseless allegation was made by the mother against the paternal grandfather of sexual abuse. 31 There have been a number of applications since 1997 to vary or rescind care orders and, as I said earlier, in August 2002 after the children had been placed in the care of the Minister, orders were maintained permitting access or contact by the grandparents with the children, however this ended badly. On the basis of the material contained within the recent assessment report, there is evidence that reflects upon the difficulties faced by the children because of the alleged behaviour of the grandparents, particularly the grandfather. 32 I can, of course, understand the distress the grandparents have felt throughout this whole ordeal. There is no suggestion at all that they have been blameworthy in any way in the neglect of the children and there is evidence to suggest that the grandparents hold very dear what they regarded as a close relationship with C before she was taken from the mother's care. The failure of the interim arrangements ordered in 2002, and the negative reaction of the children to contact, led to a further assessment order, requiring a report. That report concluded that the children had reacted negatively to the contact and that further contact would not be beneficial for the children. 33 In relation to this contact in late 2002, perhaps early 2003, Dr Hollingworth reports upon the presence of the foster parents at the contact meeting on at least one occasion. Of course this is not something in respect of which she was directly involved, but there is other evidence that suggests this was so and that there was some 'obstruction' on the part of the foster parents to the contact. 34 She expressed the view that this presence was inappropriate and points out that this confirmed in the mind of the grandparents and particularly the father, the influence of the foster parents upon the children's attitudes. Dr Hollingworth in her report notes the Department has been critical of the behaviour of the paternal grandparents and the foster parents during contact visits and these circumstances have certainly not helped the current situation. 35 The current application was first lodged in March 2007 by the grandparents and father, followed by an application by the mother in August 2007. The various applications ultimately sought contact with the children on at least one day per month for four hours, with supervision and without the foster parents being present, as well as other extra contact during school holidays and mail and telephone contact. 36 It seems to me with the greatest of respect to the applicants that, on the material, the claims of the respective applicants vary in quality. Ultimately that is not decisive in the determination of this appeal. The mother lives in the Illawarra area where the children reside with the foster parents. There is evidence that the mother in recent years, having ascertained the whereabouts of the children's church and their general locale, has taken steps to announce her connection with the children publicly. With a newspaper advertisement on C's birthday, by attempting contact at public places and in fact leaving a sign reflecting upon her relationship with the children or other matters outside the church where the foster father is a pastor. 37 The contact with the mother in recent times has created great resentment on the part of the children. The grandfather, now aged seventy-three and the grandmother now aged sixty-eight years are deeply concerned that their grandchildren should have some knowledge of their biological family and they are deeply concerned that their opportunity to establish a relationship should occur before they die. The grandmother is in ill health. 38 The father is less emotional about the matter and is certainly more restrained about the matter than the mother with his feelings. 39 The children, as I said earlier, have had no real contact with the biological family of any quality, apart from that limited contact as a result of the interim order in 2002. The contact that did occur has ultimately ended in "tears", both literally and metaphorically. The Assessment 40 With the background of material of previous reports and prior applications, evidence adduced in relation to earlier applications and related matters, in reality, this application proceeded by concentration, particularly on the part of the applicants' counsel, upon the reports of Dr Hollingworth and Ms Gagliardi. The Hollingworth report is a very extensive report, reviewing all of the material and provides very precise details of interviews conducted with interested parties. 41 Putting aside some minor errors on matters of history, it is clear that Dr Hollingworth conducted extensive interviews with the children, the grandparents, the father and the mother at various times and has reasonably extensively psychometrically assessed the children. The children do have some emotional and cognitive limitations, but they are not disabled or abnormal and are not intellectually backward. 42 They may be regarded essentially as children of average intelligence, although their respective qualities vary between themselves. I believe they had ample opportunity to speak freely and there was no evidence in Dr Hollingworth's view of brainwashing, as such, or that they were controlled in their attitudes. Although, there is some strict control in the parental sense by the foster parents upon their behaviour. 43 A number of matters emerge from her extensive report, which need no regurgitation in detail. The primary matter that emerges is that for reasons which the reporter herself regards as unfortunate and perhaps better handled, with the wisdom of hindsight, in the past by all concerned, including the Department, the children are very much alienated from their biological family and have no desire to retain contact. 44 In fact, Dr Hollingworth is of the opinion that the children at this point would be further damaged by contact that is currently sought, given the security they feel with their foster parents and their negative attitudes towards the biological family. The grandparents and the father to some extent now see the need to give primacy to the interests of the children and respect their wishes. Although still they hold deep-seated grudges and recriminations about the matter, particularly in the way they were treated by the Department. There are also recriminations about the conduct of the foster parents. 45 The mother, who has a stable relationship now and would appear to be a much reformed person, with the considerable help of the Salvation Army, is still emotionally labile and continues with mental health difficulties. She is greatly aggrieved by the enforced separation from her children, which is understandable. She of all the applicants has the least insight into the matters that have primacy in this situation relating to the welfare of her children. 46 I point out that there has also been considerable reformation by the father. There seems to me no evidence that the grandparents present any real risk to the children. However, the steps taken in affecting the appropriate conditions or environment for some reconciliation between the children and their biological family have yet to be taken and completed. Various recommendations are made by Dr Hollingworth in an endeavour to repair the damage to the relationship, particularly on the part of the children, although there is some work still to be done by the biological family, perhaps more so by the mother. 47 There is a need to properly assess the foster parents for a clearer picture to emerge as to the extent to which their attitudes may or may not have influenced the attitudes of the children. The children regard the foster parents as their parents. The foster parents apparently now have an infant of their own that the children regard as their sibling. No assessment of the foster parents was undertaken for the purposes of the court ordered assessment of this year. The extent to which the foster parents present an impediment to an adjusted view by the children of their biological family cannot be ascertained at this time. 48 It is clear when one has regard to the evidence previously filed from the Salvation Army officers to whom I made mention, who particularly assist the mother, that the attitude of the foster parents, their conduct during previous limited contact visits or visit and the like has been less than helpful. Although the children see their relationship with their foster carers as permanent, legally of course it is anything but permanent. 49 Whether in the long term the children will have an adequate support network once they reach adulthood, without contact with their biological family, is an issue that remains unaddressed on the material available. It is however in my experience not uncommon to see foster children on adulthood abandoned by foster parents with no longer any legal obligation to care for them, particularly when any problems arise in the relationship between the children and the foster parents, behavioural issues come into focus or other difficulties occur. 50 Those matters that are set out in Dr Hollingworth's report as to recommendations for the future may be characterised, as with the views of Ms Gagliardi, as steps that need to be taken to assess the children and the biological family before there will be the relevant significant change contemplated by the current act to grant leave. This appears to me to be consistent with the purposes of the legislation. 51 The current application is seen by the children as a threat to their current stability. As I said earlier, the children have very negative views of the natural family, particularly the mother because of recent events. The limited contact with the grandparents in 2002 and or 2003 as a consequence of the interim order in 2002 also have left negative memories. They appear to be "fully attached" to their carers, to quote Ms Gagliardi. 52 Of course Dr Hollingworth acknowledges that it is natural and "expectable(sic)" that developmentally that separation anxiety in very young children can result in distress at transitions and that the access visits or contacts were regarded by the children, particularly C, as "aversive". She writes: "Children who are anxious, fearful or very dependant on an aligned parent are less able to withstand the distress of loyalty conflicts...this may be the current situation of both children, particularly L." 53 Reference is made in her report to the negative evaluations of natural family behaviour as a result of conflict between custodial and non custodial parents, which appears to be the case here, particularly in respect of the recent contact with the mother. 54 The mother sees her contact with the children or her actions as "acts of love". The mother has been reported, not unexpectedly, as having "Suffered greatly by the separation from her children". Notwithstanding past mistakes or neglect in parenting or errors in her conduct over the years, this is to be expected. Likewise, the feelings of loss and the recriminations of the paternal grandparents are to be expected. The grandparents on their part feel a sense of denial of natural justice from the time shortly after L was taken into care and thereafter. 55 The applicants would appear, on Dr Hollingsworth's report, to have differing strengths in their claims for a variation in the current arrangements. The attitude of the children also varies somewhat. The attitude of the children to the mother appears to be more hostile than to other members of the family. The grandparents appear to have better insights into the needs of the children. The father's hostility to, or disappointment at, the current situation appears to be abating. Unfortunately, the children appear to "tar the family" with the same brush, blaming all for the conduct of one or the other. It would seem, as I have said earlier, the interests of the grandparents are not the same as the son or the mother. Consideration 56 There is no point taken in relation to any of the matters set out in these reports. Much reliance is made upon the assessments. Ultimately, it is said on behalf of the applicants that parts of Dr Hollingsworth's reports and parts of Ms Gagliardi's report represent evidence of a significant change, such as to warrant the grant of leave. 57 The evidence at the present time, as I have earlier foreshadowed, does not support a finding of significant change in circumstances or a relevant circumstance such as to warrant a grant of leave at this time. 58 Dr Hollingworth posed the question in the report: "What do these children need from their biological family to help them develop through the lifespan?" I must confess I would have thought the question was too broad, as the "lifespan" obviously contemplates a period well beyond any control the Department has over these children. 59 She concludes that the children need firstly: "1. Attachment security and a lasting sense of family belonging. 2. Respect for their age appropriate attempts to self determine and individuate. 3. Access to information or resources for identity purposes." 60 I use the words I hasten to say of the report. It is concluded by Dr Hollingworth that: "These needs are not met by the current application and the uncertainty it creates, nor are these needs met with an immediate contact with the biological family, as sad as this must be for them. It is acknowledged that the window of opportunity for reconciliation is small, even when they are adults." 61 A number of recommendations are in the report to commence the process but, as with the Gagliardi recommendations, they are merely steps to be taken before the children, not the adults as such, can make an educated decision about their wants and needs on the topic of reconciliation. 62 I note by reference to s 90(2A) that the daughter is now fourteen years and approximately four months, the son eleven years and some months. They have spent all of their conscious life, as I said earlier, with their carers and they have expressed very strong, and it would appear fixed and educated, views about their relationship with the biological family. 63 My reading of the material suggests that the current situation with its past missteps, errors and neglects on all sides to varying degrees, including the Department, has led to what is quite clearly the current intractable situation, particularly from the point of view of the children. 64 But this matter at this stage is not about righting past wrongs by the stroke of the pen. In any event, the expert evidence is uniformly against unilateral conduct on the part of the courts or on the part of the biological family. 65 The room for manoeuvre by the biological family within the legislative framework gets smaller and smaller now the children are getting older and become more independent and as they become, unfortunately for the biological family, more removed from them. There are within the reports of Hollingworth and Gagliardi two sets of recommendations which are not inconsistent with one another and to some extent overlap, which I implore the Department to take positive steps to pursue. 66 It should be pointed out, notwithstanding reliance in Ms Gagliardi's report by the applicants, she agrees that; "Any attempt to foster contact with the family and the children will cause the children to alienate themselves from the family and possibly destroy any chance of contact in the future". Gagliardi believes that the children require an outlet outside their foster family to talk about their lives, their identity and other matters. As I said earlier, she suggests an agency that can help. This appears to be a concrete suggestion that should be taken up in addition, as I have said earlier, to Dr Hollingworth's recommendations. 67 JO's psychologist concludes that: "The biological family need professional assistance to varying degrees, particularly to help them with that or maintain a level of distance whilst the children explore their own feelings around contact." 68 She intends to help the mother to develop this perspective. Conclusion 69 Ultimately, by reference to all this material in the context of the wider material, I have come to the conclusion by reference to what I am required to consider, that there is not at this point an arguable case for the grant of leave. Ultimately, notwithstanding the able arguments put by Mr Kozera for the applicants, I am required to conclude on the evidence, in the context of the legislative framework that governs this appeal, that I should decline to set aside the magistrate's order or grant leave to reopen the proceedings and therefore I shall dismiss the appeal. 70 No order as to costs. oOo 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.