Children's Court New South Wales Medium Neutral Citation: Kestle, Susan v the Director of the Department of Family and Community Services [2012] NSWChC 2 Hearing dates: 25 January 2012 Decision date: 06 February 2012 Before: Judge Mark Marien SC, President Decision: Application for leave to rescind current orders and restore children to mother refused; Application for leave to vary current orders to include orders for parental contact under s 86 of the Care Act granted. Catchwords: CHILDREN - care proceedings - application for s 90 leave - relevance of arguable case for leave - consideration of Statement of Wishes by children - consideration of paramountcy principle in leave applications - discretion to restrict grant of leave to particular issue or issues - s 94(4) and granting of adjournments Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Uniform Civil Procedure Rules 2005 Interpretation Act 1987 Cases Cited: Campbell [2011] NSWSC 761 S v Department of Community Services [2002] NSWCA 151 Re Saunders and Morgan & Anor v Department of Community Services, 12/12/2008, NSWDC, unreported; [2008] CLN 10 Re Tina [2002] CLN 6 In the matter of Troy [2010] CLN 2 Jasper [2006] CLN 2 Re Tracey [2011] NSWCA 43 Category: Interlocutory applications Parties: Ms Susan Kestle Director of the Department of Family and Community Services Representation: Ms Goodchild on behalf of the mother, Ms Susan Kestle Ms Peters appeared on behalf of the Director General Mr Whelan appeared on behalf of the father, Mr Peter Emerton Ms Rowley appeared as direct legal representative of the child Darren Ms Wells appeared as direct legal representative of the child Nicholas Ms Renshaw appeared as the independent legal representative of the child Bethany File Number(s): 218-220/06 Judgment 1This is an application under s 90 (1) of the Children and Young Persons (Care and Protection) Act 1998 (the Care Act) by the mother, Ms Susan Kestle, for leave to bring an application to rescind, or alternatively, to vary care orders made by the Children's Court on 13 November 2006 with respect to the children Darren (born in August 1998), Nicholas (born in March 2000) and Bethany (born in November 2001). 2At the hearing of the application for leave, Ms Goodchild of counsel appeared for the mother, Ms Peters appeared for the Director General, Mr Whelan appeared for the father, Mr Peter Emerton, Ms Rowley appeared as the direct legal representative of the child Darren, Ms Wells appeared as the direct legal representative of the child Nicholas and Ms Renshall appeared as the independent legal representative of the child Bethany. 3The mother's primary application (as disclosed in the mother's proposed Minute of Care Order) is that the current orders be rescinded and that an order be made allocating parental responsibility for each of the children to the mother to the exclusion of the father until the child attains the age of 18 years. In the alternative, the mother seeks that the current orders be varied and that a number of contact orders under s 86 of the Care Act be made in favour of the mother. 4All the parties oppose the mother's application for leave with respect to her primary application to rescind the current orders, however, with the exception of the father, the parties do not oppose leave being granted to the mother on the discrete issue that the current orders be varied to make contact orders in relation to both parents under s 86 of the Care Act. 5Upon the application for leave the mother relied upon her affidavits made on 12 October 2011, 13 December 2011 and two affidavits made on 20 January 2012. The Department relied upon affidavits of Anthony Kearns, Caseworker, made on 17 November 2011 and 19 January 2012 and the affidavit of Narelle Fox made on 17 January 2012. The father relied upon his affidavit made on 17 January 2012. The application was dealt with on the material filed (subject to certain objections made by Ms Goodchild) and no witness was required for cross-examination. Background 6On 13 November 2006 the court made final orders under s 79 (1)(b) of the Care Act placing each of the children under the parental responsibility of the Minister until the child attains the age of 18 years. Pursuant to the Minister's exercise of parental responsibility, the three children have been in the continuous care of their paternal grandparents Mr Cameron Fox and Mrs Narelle Fox (the grandparents) since 3 July 2007. Prior to that the children had been placed with foster carers following them being taken into care. 7The mother appealed to the District Court against the orders made by the Children's Court, however, on 27 October 2007 the mother withdrew her appeal. The Director-General consented to the discontinuation of the mother's appeal on terms as recorded in a document dated 27 October 2007 and titled, "Terms Pursuant to Part 12.1 (3) Uniform Civil Procedure Rules" which was signed by all parties. The document states that consent to discontinuation of the mother's appeal is on terms "as an expression of intent" that the mother, father and maternal grandmother would have contact with the children for a period of 12 months, once per month for a minimum period of 2 hours, supervised by a delegate of the Minister, subject to each child's wishes. It was further noted in the document that all contact would be conditional upon the mother, father and maternal grandmother giving undertakings that they not denigrate each other or the carers in front of the children and that they not undermine the placement or the carers. 8The mother states in her first affidavit, made on 12 October 2011, that it is her understanding that the children were removed from her care for the following reasons: (a)I was unable to keep my children from witnessing domestic violence between their father and myself; (b)I revoked Apprehended Violence Orders that were placed on the father; (c)I was unable to cope with caring for all 3 children [at the time final orders were made], without the help of their father; (d)I had not attended at PANOC as I had promised to do; (e)I had mental health issues. 9It was common ground at the hearing of the application that the above issues were the relevant issues underlying the court's orders of 13 November 2006. It was also common ground that the mother has now ceased her relationship with the father. 10In her first affidavit the mother describes her circumstances at the time of the original Children's Court proceedings. Very tragically her daughter Catherine Emerton, who was born in October 1996, passed away from a brain tumour in April 2001. At the time of Catherine's death, Darren was 2 years old, Nicholas was a baby and the mother was pregnant with Bethany. The mother lodged a complaint and commenced legal proceedings against the doctor who treated Catherine. The mother also commenced proceedings in the Supreme Court against the hospital where Catherine was treated. 11The mother further deposes in her affidavit that the complaint proceedings were on foot when the children were removed by the Department. She states that she became "very focussed" on obtaining justice for her daughter. She states that attending to the legal proceedings and medical complaints meant she was unable to attend some of the appointments the Department wanted her to attend, particularly with PANOC (Physical Abuse and Neglect of Children Therapy team). She states that she became "greatly distressed" attending the Supreme Court hearing and that she became "quite depressed" at this time. She states that she will always feel immense grief about the loss of her daughter and that she continues to attend upon her psychologist and psychiatrist to help her to manage her grief. She states that she finds she is now coping much better than she was in 2006. 12In her first affidavit the mother refers to the serious domestic violence that occurred during her relationship with the father. She states that her relationship with the father was characterised by controlling and threatening behaviours by him towards her. She admits in her affidavit that in the past she abused alcohol "at times of extreme stress." She concedes that this has impacted upon her making poor choices in expressing frustration to the grandparents who are the carers of the children. She also admits to using marijuana when the father was around "because he would bring it over." She states that she now drinks only socially and that the last time she used marijuana was in September 2010. 13The mother states that although she and the father were divorced in March 2005, she continued to have him in her home because he "would ask and often insist to stay in my home to assist with the children." She states that the father assisted with the children until they were removed in 2006. She states that she now realises that the home environment when she lived with the father was not suitable for the children but she felt at the time that she was powerless to do anything about it. She states that she has now ceased all contact with the father and that the last contact she had with him was in September 2010. The mother currently has an AVO against the father which expires in June 2012. 14Of particular importance on this application is the history of the relationship between the mother and the grandparents. In her first affidavit the mother states that prior to August 2007 she had a "workable relationship" with the grandparents. She states that at about that time Darren stopped having contact with her and that that the grandmother told her that Darren did not want to have any contact with the mother or her family. The mother states that she also became concerned that the grandmother was not encouraging the mother's relationship with Bethany. She states that in November 2008 she became upset after a contact visit was cancelled and began to consume alcohol to calm her nerves. She states that she then made a poor decision to send SMS messages to the grandparents to express her upset and anger. 15The grandmother, Ms Fox, attended Maroubra police station on 1 November 2008 to make a complaint about a number of threatening and highly offensive text messages sent by the mother to the grandparents. A final AVO protecting the grandparents was made against the mother on 5 March 2009 for a period of 12 months. In her affidavit made on 17 January 2012 the grandmother states that following the making of the final AVO the mother continued to send offensive text messages to the grandparents. The AVO against the mother has been extended and is currently in force until 19 August 2012. 16In September 2010 the mother sent a number of further offensive text messages to the grandfather. A transcript of these text messages is annexure "D" to the affidavit of Ms Fox made on 17 January 2012. Of particular significance is a series of text messages the mother sent to Mr Fox on 10 September 2010. These messages are grossly disparaging of the children and include expressions by the mother of intense hatred of her children and threats by herself to commit suicide. She makes lurid and shocking statements about her children engaging in sexual acts including sexual acts with each other. I should make it clear that I do not for a moment believe that the mother actually held the views she expressed towards her children in these text messages. However, the fact that she sent them raises serious questions about her mental and emotional stability. 17Ms Goodchild submitted that these text messages should be viewed in the context of the mother being upset about not having contact with the children and being highly stressed and under the influence of alcohol at the time she sent them. I am afraid that neither stress, even the greatest stress, nor the effects of alcohol can in any way adequately explain that a mother would send such horrific messages concerning her own children. The only reasonable explanation is that at the time she sent them the mother was suffering serious mental and emotional instability. It is to be remembered that these messages were sent by the mother in the context of her having a lengthy history of mental health problems. The Clinic Assessment report of psychologist Ms Miriam Breit dated 15 June 2006 (which was before the court when the current orders were made on 13 November 2006) refers to the mother's "long history of mental health problems, specifically depression, which she has suffered from since adolescence". The report also refers to the diagnosis of the mother's treating psychiatrist, Dr B Cameron, that the mother was suffering at that time from post-traumatic stress disorder, personality disorder, adjustment disorder and moderately severe depression. The report also refers to the mother's acknowledgement of heavy use of marijuana in the past. 18As I have previously stated, the mother acknowledges in her first affidavit that one of the reasons her children were taken into care was because she had "mental health issues". She states that since September 2007 she has attended upon Ms Laura Luchi, psychologist, until Ms Luchi went on maternity leave in October 2010. In a letter dated 5 October 2010, Ms Luchi states that she commenced providing therapy to the mother in December 2008 (not September 2007). It appears from that letter that the therapy she provided to the mother only related to the domestic violence in the relationship between the mother and the father. Ms Luchi makes no reference in her letter to the mother's lengthy history of mental health problems. 19A report of the mother's treating psychiatrist, Dr Basil Cameron, dated 16 December 2010, states that he has been treating the mother since 2002 after she was referred by a clinical psychologist who had been treating her for a couple of years. Dr Cameron states that he has diagnosed the mother as having severe Post Traumatic Stress Disorder with Anxiety and Depression, the result of nervous shock resulting from the circumstances of the death of her first child, Catherine. The report refers to the mother's longstanding conflict with the father and the grandparents. Dr Cameron states in his report: "[The mother's] personality is characterised by high levels of emotional expression especially in conflict situations or under provocation. Her inability to regulate her emotional responses is a result of a neuro-physiological deficit resulting from [her] own childhood trauma. She reacts emotionally often aggravating the conflict by verbal retaliations, sending texts or emails while in her agitated hot headed state only to have these responses to the provocation used against her with further AVO's taken out by [the grandparents]. In the meantime [the father] has virtually unrestricted access to the children or at least that is the [mother's] perception. This makes the injustice of the situation worse. In summary, [the mother] has Post Traumatic Stress Disorder, depression and anxiety resulting from the trauma of her earlier loss of her daughter. This is now aggravated by the separation from her three children and the continuing interpersonal conflict with [the father's] parents". 20It is to be noted that the report of Dr Cameron was written approximately three months after the mother sent the highly offensive text messages to Mr Fox. The report does not in any way suggest that the mother had at that time addressed her mental health problems to which Dr Cameron refers in his report. Nor does Dr Cameron provide any information in his report about the mother's treatment or prognosis. The mother has not placed before the court on her application any further report from Dr Cameron. 21The children have now been in the care of the grandparents since 3 July 2007 (four and a half years). All the evidence before me establishes that this is a very stable and supportive placement for the children and that they are progressing well. The mother does not assert otherwise. A Wishes Report relating to the child Darren which is before me states that he wishes to live with his father long-term. As I stated earlier, in 2007 Darren was expressing a wish not to have contact with his mother or her family. A Wishes Report relating to Nicholas states that he wishes to continue to live long-term with his grandparents but that he would like there to be changed contact arrangements so that he can spend more time with his mother. Both Darren and Nicholas, aged 13 years and 11 years respectively, are providing direct instructions to their legal representatives. (On 14 December 2011 I made a declaration under s 99B (2) of the Care Act that Nicholas is capable of giving proper instructions). The child Bethany, for whom Ms Renshall acts as her independent legal representative, has expressed her wish that she not live with her mother. The applicable legal principles 22The relevant legal principles to be applied upon an application for leave under s 90 (1) of the Care Act were recently stated in Campbell [2011] NSWSC 761 by Slattery J. They may be summarised as follows: (i)In determining whether to grant leave the court must first be satisfied under s 90 (2) that there has been a significant change in a relevant circumstance since the care order was made or last varied. (ii)The range of relevant circumstances will depend upon the issues presented for the court's decision. They may not necessarily be limited to just a 'snapshot' of events occurring between the time of the original order and the date the leave application is heard. (iii)The change that must appear should be of sufficient significance to justify the court's consideration of an application for rescission or variation of the existing care order: S v Department of Community Services [2002] NSWCA 151 (iv)The establishment of a significant change in a relevant circumstance is a necessary but not a sufficient condition for leave to be granted. The court retains a general discretion whether or not to grant leave. (v)Having been satisfied that a significant change in a relevant circumstance has been established by the applicant, the court must take into account the mandatory considerations set out in s 90 (2A) in determining whether to grant leave. (vi)The s 90 (2A) mandatory considerations include that the applicant has an "arguable case" for the making of an order to rescind or vary the current orders. (vii)An arguable case means a case "which has some prospect of success" or "has some chance of success". (viii)In determining whether an applicant has an arguable case and whether to grant leave, the court may need to have regard to the mandatory considerations in s 90 (6). 23I am satisfied that the permanent separation of the parents (which is not disputed by the Department) does constitute a significant change in a relevant circumstance. The relationship of the parents, which was characterised by serious domestic violence, was clearly an important consideration underlying the making of the current orders and that relationship has now ended. 24However, as was stated in Campbell, even where a significant change in a relevant circumstance is established, the court still retains a general discretion whether or not to grant leave. An important mandatory consideration under s 90 (2A) (e) is whether the applicant has an "arguable case" for rescission or variation of the current orders. In the present case, with respect to the mother's primary application, the question is whether the mother has an arguable case for restoration of all three children solely to her care to the exclusion of the father. In terms of the Care Act, the mother must have an arguable case that there is a realistic possibility of restoration of the children to her care. In Campbell, Slattery J approved the interpretation of the expression "realistic possibility of restoration" as stated in Re Saunders and Morgan & Anor v Department of Community Services, 12/12/2008, NSWDC, unreported; [2008] CLN 10 by Johnstone DCJ. Judge Johnstone held that the possibility of restoration must be realistic in the sense that it is 'real or practical' and not 'fanciful, sentimental or idealistic', or based upon 'unlikely hopes for the future'. 25Although the need to establish an arguable case is not explicitly stated in s 90 to be a necessary condition for leave to be granted, it clearly is. Given the objects and principles of the Care Act and the reasons it is necessary to obtain the court's leave to bring an application to disturb existing care orders, it could never be a proper exercise of discretion under s 90 (1) for the court to grant leave to an applicant to bring an application for rescission or variation of existing care orders in circumstances where the court finds that the applicant does not have an arguable case for such rescission or variation. 26Mandatory considerations for leave to be granted include 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 (s 90 (2A) (b) and (c)). Further, before making an order to rescind the current orders the court must again take those considerations into account (s 90 (6) (a) and (c)) and the wishes of the child or young person and the weight to be given to those wishes (s 90 (6) (b)). The court must also take into account "the strength of the child's or young person's attachments to the birth parents and the present caregivers" (s 90 (6) (d)) and "the risk to the child or young person of psychological harm if present care arrangements are varied or rescinded" (s 90 (6) (f)). Given the stated wishes of the children, their ages and the length of time they have been in the care of their grandparents, the risk of psychological harm to the children should the current orders be rescinded must be high. The mother's objection to the Statements of Wishes by the children 27As was stated by Slattery J in Campbell at [39], an arguable case must relate to the application to rescind or vary existing orders and so when considering a s 90 (1) grant of leave, the court may need to look ahead at relevant s 90 (6) considerations when analysing the arguable case issue. The wishes of the child or young person (s 90 (6) (b)) are an important consideration for the court in determining whether to rescind or vary the court's orders. This is consistent with the principle of participation under the Care Act as contained in s 10 which requires that as far as possible a child or young person should be allowed to participate in decisions made under or pursuant to the Care Act that have significant impact on his or her life. 28Whilst the wishes of children are not necessarily determinative of an application to rescind or vary orders, their wishes should be given weight commensurate with the age of the child and the ability of the child to freely express their wishes. In this case, given the ages of Darren and Nicholas and the fact that their legal representatives are acting on direct instructions, significant weight should be given to their stated wishes not to live long-term with their mother. Further, the wishes of Bethany are not to be disregarded and I am required by the Care Act to take them into account. In assessing the weight to be given to the stated wishes of the children I have taken into account that they were not cross-examined on the application. 29Ms Goodchild objected to the Statements of Wishes of the three children being before me on the application. Her objection was based on an assertion that the circumstances in which the statements were taken are unknown and that the children will not be available for cross-examination. This objection is misconceived as it fails to take into account s 93 of the Care Act which provides, inter alia, that proceedings before the Children's Court are not to be conducted in an adversarial manner; that they are to be conducted with as little formality and legal technicality and form as the circumstances of the case permit and that the court is not bound by the rules of evidence unless the court determines that the rules of evidence are to apply to particular proceedings or particular parts of proceedings. Further, Ms Goodchild's objection fails to have regard to the following: (i)the restrictions placed upon the attendance of a child or young person in care proceedings in s 96 and the fact that except as provided by s 96 (4), a child or young person is not required to give evidence in the court (s 96 (3)); (ii)that the court is required to ensure a child or young person is allowed to participate in the proceedings (s 10); (iii)that the role of a legal representative for a child or young person in proceedings in the Children's Court includes that the legal representative ensures that the views of the child or young person are placed before the court (s 99D(a)(i)); and (iv)that the role of an independent legal representative of a child or young person includes presenting evidence of the child's or young person's wishes (although the independent legal representative is not bound by the child's or young person's instructions) (s99D (b)(v)). 30Accordingly, I overruled Ms Goodchild's objection to the Statements of Wishes by the children and I had regard to them on the application. 31A further matter of concern with respect to the mother's case for restoration is that it would be absolutely imperative that if the children were restored to her care that the mother would ensure that there is regular, frequent and positive contact between the children and their grandparents and that she not derogate the grandparents to the children. Given the lengthy history of the mother's deeply entrenched antipathy towards the grandparents I can have no confidence that the mother would ensure that proper contact between the children and their grandparents would occur if the children were returned to her care. 32In my view, on all the evidence before me, it cannot be said that the mother has an arguable case for restoration of the children to her care. The mother has acknowledged that one of the reasons the children were removed from her care was because of her mental health issues. Those issues are serious and longstanding. Although the mother states in her Amended Application that the reasons the children were taken into care "have been resolved" she has placed no evidence before the court from which the court could conclude that her mental health problems have been addressed to an extent that it is in the best interests of the children to be returned to her care. As I have previously said the content of her text messages to the grandparents (particularly the messages to the grandfather in September 2010) raise very serious concerns about the mother's mental and emotional stability. 33The mother has also acknowledged that another reason which led to the removal of her children was that she was unable to cope with caring for all three children without the help of their father. On the evidence before me, particularly in relation to the mother's mental health and her emotional instability, I am unable to find that the mother has an arguable case that she would now be able to cope with caring for all three children on her own. Her continuing emotional instability was demonstrated in June 2010 when she contacted the Department and said that she was ceasing to have contact with the children because the Department would not allow her to have contact at her home. As a result the mother stopped having contact with the children for almost four months. Her actions in this regard clearly demonstrated her lack of insight into the needs of the children to maintain regular contact with her. Her actions were consistent with her putting her needs and grievances with the Department ahead of the needs of the children. 34The mother also acknowledges that in the past stress has caused her to resort to alcohol abuse. Clearly, the restoration of the three children to her sole care would cause enormous stress to the mother. This would be particularly so given the childrens' expressed wishes not to live with her on a long-term basis. Yet there is no evidence before the court that the mother has learnt to deal with stress without resorting to alcohol abuse and the possible relapse into marijuana use. 35However, given the stated wishes of Darren and Nicholas to have more contact with their mother, I am of the view that leave should be granted on the discrete issue of contact by both the mother and the father with the children. The father presently has very liberal contact with the children. I therefore propose to grant leave to her to bring an application to vary the current orders but only with respect to the issue of parental contact with the children. In my view it is in the best interests of the children that the issue of contact be re-visited to provide for some certainty for the children as to when they will have contact with their parents. In this regard it is to be noted that most of the material filed by the mother in support of her application went to the issues of her grievances with the Department, her relationship with the grandparents and her concerns over contact. Very little of the material filed by the mother went to the issue of restoration and the vital issue of how she has addressed the concerns which led to the removal of the children from her care. The application by the mother for an adjournment 36In the course of submissions by Ms Goodchild I raised with her the lack of evidence in the mother's case as to her current mental health and emotional stability. Following upon me raising the issue, Ms Goodchild made an application to adjourn the hearing in order for the mother to obtain further evidence. I refused the application for a number of reasons including that no explanation was provided by Ms Goodchild as to why any such evidence had not been placed before the court on the application (such evidence was clearly vital to the success of her application) and further, that Ms Goodchild did not identify with any precision the evidence that would be placed before the court if the adjournment was granted. 37In refusing the adjournment application I also took into account the requirements under the Care Act for expedition and the restrictions placed upon adjournment applications by the Act. Section 94 (1) of the Care Act provides: "All matters before the Children's Court are to proceed as expeditiously as possible in order to minimise the effect of the proceedings on the child or young person and his or her family and to finalise decisions concerning the long-term placement of the child or young person". 38 With respect to adjournments, s 94 (4) provides: "The Children's Court should avoid the granting of adjournments to the maximum extent possible and must not grant an adjournment unless it is of the opinion that: (a)it is in the best interest of the child or young person to do so; or (b)there is some other cogent or substantial reason to do so". 39There is another reason I refused the application for the adjournment. I have come to the clear view that even if there was evidence before the court that the mother has addressed or substantially addressed her mental health issues and her emotional instability, there are compelling reasons why the court would not now order that the children be restored to her care. These reasons include that the children have been in the care of the grandparents for four and a half years, that that placement appears to be a happy and stable one for the children, the ages of the children and that no child has expressed a wish to live long-term with the mother. As I have said, the child Darren (who is 13 years of age) has expressed a wish to live with his father, Nicholas (who is almost 12 years of age) has stated that he wishes to live long-term with his grandparents and Bethany (who is 10 years of age) has stated that she does not wish to live with her mother. 40With respect to Ms Goodchild's belated application for an adjournment, in terms of s 94 (4) of the Care Act, I was not satisfied that adjournment of the proceedings was in the best interests of the children nor was I satisfied that there was a cogent or substantial reason to grant the adjournment. Accordingly, the mother's application for an adjournment was refused. Can leave be granted under s 90 (1) on a restricted basis? 41Before disposing of the matter, I must refer to an argument put by Ms Goodchild that it is not open to the court to grant leave under s 90 (1) on a discrete issue such as contact. As I understand her argument, she contends that on a proper construction of s 90 (1), if the court grants leave then that must be a general grant of leave with respect to all issues and that the court cannot grant leave with respect to a discrete issue such as contact. In her written submissions Ms Goodchild refers to Re Tina [2002] CLN 6 where Mitchell CM stated: "The question then is whether there is power in the proper case, of which this appears to be one, to grant leave to a party to seek rescission/variation, not so as to put the parties at large but to allow specific issues to be revisited. I have come to the conclusion that there is". 42In In the matter of Troy [2010] CLN 2 I expressed agreement with this statement by Mitchell CM for the reasons he gave. 43Ms Goodchild submits that the comments of the court in Re Tina and Troy "should not be adopted as a statement of general principle with respect to the application of s 90 leave applications". She submits, "as a matter of statutory interpretation and by operation of law, such approach is not mandated". 44In Re Tina Mitchell CM set out the following reasons for his view that leave under s 90 (1) may be restricted to a specific issue: (i)That the use of "variation" as well as "rescission" indicates that more than one process is contemplated by s 90 and that something short of and more focused than rescission may sometimes be appropriate. (ii)That the provisions of s 90 (2A) where the court is required, on the hearing of an application for leave, to consider matters including "the plans for the child" support the view that leave to vary can be focused on particular aspects of existing orders and need not be a license to re-open and re-litigate the whole of the arrangements for a child. (iii)The reasons stated by Crawford CM in the unreported decision of Re Emily. In that case the mother, who was the applicant for leave, did not seek to disturb the placement of the child with the father and sought leave only on the issue of contact. Crawford CM considered the apparent procedural unfairness of granting leave on one basis and then finding that the successful applicant for leave might conduct his or her case on an entirely different basis and seek entirely different orders than had been flagged. Crawford CM held that, absent intervening events which might justify it, such a circumstance should not be permitted and, accordingly, he gave leave to the applicant/mother to vary the contact-related aspects of the orders and not otherwise. 45Ms Goodchild argues that s 90 (1) states simply that an application for the rescission or variations of a care order may be made with the leave of the Children's Court. She argues that s 90 does not, explicitly or otherwise, purport to empower a court upon a consideration of an application for leave, to place any restrictions or limitations with regard to that grant of leave. She contends that the section should be given a meaning that would best achieve the objects and purposes of the legislation. 46Ms Goodchild is quite correct when she says that s 90 (1) should be given a meaning that would best achieve (or promote) the objects and purposes of the Care Act: s 33 of the Interpretation Act 1987. However, I have formed the clear view that to interpret s 90 (1) as contended for by Ms Goodchild would be to give the section an operation that would in fact defeat the objects and purposes of the Care Act rather than promote them. Further, in my view a proper reading of the whole of s 90 clearly leads to the conclusion that the court does retain a wide discretion to grant leave on a specified and discrete issue. 47The overriding principle to be applied in the administration of the Care Act is 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": s 9 (1) of the Care Act. The paramountcy principle must therefore be applied when the court is considering an application for leave under s 90 (1). 48The purpose of s 90 is to reduce repeated applications involving children the subject of care orders and to thereby reduce the burden of stress on the child. In the second reading speech introducing the mandatory considerations for leave set out in s 90 (2A) of the Care Act, the Minister said: "... the bill introduces an additional requirement that the court should consider whether it is in the best interests of the safety, welfare and well-being of the child or young person before granting leave to allow an application to vary or rescind a care order. After all, it is important to note that the court has already presided over the case, considered the child's situation in detail and made what it intended to be a final order. It is not in the child's interest for the court order formalising his or her living arrangements to be continually revised. This is not conducive to ensuring a settled and permanent placement for the child. However, it is clear that for care arrangements other than adoption there still needs to be some avenue for review of court orders. The proposals seek to balance the need of the child for certainty and stability with the parents legal right to challenge court decisions." [Parliamentary Hansard, Legislative Assembly, 27 June 2001 at p15585] 49The purpose of the requirement for leave was stated by Mitchell CM in Jasper [2006] CLN 2 as being: "to protect a child from contested care proceedings by ensuring that proceedings come to an end unless there is a good cause to re-open them." 50In Campbell Slattery J said at [40] that s 90 (1) "...reflects a long standing policy of the law to prefer the interests of children to the rights of those seeking to litigate custody disputes." 51The discretion available to the court in determining whether to grant leave under s 90 (1) is a very wide one. As I have said, even if a parent has established a significant change in a relevant circumstance since the care order was made or last varied, the court is not compelled to grant leave. Further, even if the parent has addressed all the issues of concern which led to removal of the child, the length of time the child has been in a stable placement, the age of the child and the expressed wishes of the child that their placement not be disturbed may together strongly support a finding that it is not in the best interests of the child to disturb their current placement. 52In Re Tracey [2011] NSWCA 43 Giles JA (with whom Spigelman CJ and Beazley JA agreed) considered the application of the "least intrusive intervention" principle contained in s 9 (2) (c) of the Care Act. His Honour held that in terms of the sub-section, the principle has no application unless there is a need to make an order "in order to protect a child or young person from harm". In the present case, as in Re Tracey, the evidence does not establish that any order is necessary "in order to protect the child or young person from harm." However, Giles JA explained that apart from s 9 (2) (c), preference for the continuance of existing care arrangements may still be a material matter in applying s 9 principles when deciding whether or not to rescind existing orders. His Honour said at [81]: "This is not to deny that preference for continuance of existing care arrangements, rather than return of the child or young person to his or her parents, may be a material matter in determining where the paramount safety, welfare and well-being of the child or young person lies on an application to vary or rescind a care order. Apart from its obvious relevance to the paramountcy principle, the considerations of s 90 (6) (c), (d) and particularly (f) of the Care Act may give weight to preservation of an existing care arrangement. But it does not have the statutory prescription of least intrusive intervention found in s 9 (2) (c)." 53In my view, the wide discretion available to the court in granting leave under s 90 (1) allows the court to also exercise a wide discretion as to the terms or conditions upon which leave is granted. Accordingly, the court may restrict the grant of leave to a particular issue or issues. This would be appropriate, for example, where the court determines that an applicant parent does not have an arguable case for restoration of the child to their care, but does have an arguable case on the issue of increased parental contact. That is the situation that pertains in the present case. Ms Goodchild's contended construction of s 90(1) would mean that in circumstances where the court has determined that an applicant for leave does not have an arguable case for restoration but does have an arguable case for increased contact, the court must still conduct a full substantive hearing on all issues including restoration. This would result in care proceedings being unnecessarily protracted and children being left in a continuing state of stress and uncertainty as to whether the existing care arrangements are to be disturbed. Such a result is contrary to the objects and principles of the Care Act, including the important need for expedition and finality of care proceedings. Ms Goodchild's contended construction improperly fetters the court's wide discretion under s 90 (1) and is clearly not in the best interests of the child and should therefore be rejected. 54Accordingly, I make the following orders: (1)The application for leave to bring an application to rescind the current orders and to restore the children to the sole care of the mother is refused. (2)The application for leave to bring an application to vary the current orders to include orders for parental contact under s 86 of the Care Act is granted. ********** 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: 12 June 2012