Children's Court New South Wales Medium Neutral Citation: Department of Family and Community Services v Melissa and Cameron [2012] NSWChC 6 Hearing dates: 3 February 2012 Decision date: 10 February 2012 Jurisdiction: Care and protection Before: Magistrate Graham Blewitt AM Decision: No significant change in any relevant circumstance, application dismissed Catchwords: CHILDREN - section 90 application - restoration - revocation of orders - variation of orders - parental responsibility - parenting capacity - significant change in relevant circumstances - arguable case - contact orders Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Cases Cited: In the matter of Jasper [2006] CLN 2 DoCS v N [2001] CLN 3 In the matter of Campbell [2011] NSWSC 761 In the matter of OM, ZM, BM and PM [2002] CLN 4 S v Department of Community Services [2002] NSWCA 151 Re J, K and C [2002] 2 CLN 1 Category: Principal judgment Parties: The Department of Family and Community Services Adele (mother) Ms Hodge and Mr Kane (carers) Melissa and Cameron (the children) Representation: Ms Rutkowska for the mother (applicant) Ms Luke for the Director-General Mr Schier for the children Mr Horsley for the carers File Number(s): 156-157/2011 Publication restriction: Any information that names or is likely to lead to the identification of a child or young person who is reasonably likely to involved or mentioned in Children's Court or non-Court proceedings in any capacity must not be published or broadcast in any form that may be accessible by a person in New South Wales whether the publication or broadcast occurs before any proceedings have commenced, during the proceedings or after they are disposed of. This prohibition applies until the child or young person turns 25 years of age or dies. Judgment 1On 11 May 2009 this Court delivered a Judgment in relation to the subject children, Melissa and Cameron, dismissing an application by the mother, Adele under section 90 of the Children and Young Persons (Care and Protection) Act 1998 (the Care Act). On that occasion the Court made orders allocating all aspects of parental responsibility for the two children to the Minister until the children attain the age of eighteen years, with the exceptions of parental responsibility for residence, education, training, contact and medical treatment, which was to be shared between the Minister and the carers, Ms Hodge and Mr Kane. 2On 7 November 2011 the mother lodged a second application under section 90 seeking to vary the orders of 11 May 2009. An amended application was filed on 2 February 2012, which sought monthly contact for no less than 5 hours. The mother seeks restoration of the two children to her care, and if she is not successful in that application, in the alternative, she seeks an increase in the level of contact with the children. 3In her application the mother detailed ten significant changes in relevant circumstances since the care orders were last varied, namely: (1)The Applicant mother has addressed all issues that led to the children being taken into care, namely drug misuse and addiction, treatment for depression and relationship issues with the children's father; (2)The Applicant mother gave birth to the children's sibling Hannah in January 2011. The mother has been Hannah's full time carer since birth. Hannah is thriving in the mother's care which demonstrates her parenting capacity. Hannah is not the subject of any Children's Court proceedings or FaCS intervention; (3)The Applicant mother has completed a number of parenting courses since 2009; (4)Family and Community Services did not implement the recommendations set out by the Children's Court Clinician in her Report to the Court dated 27 June 2008 that recommended more frequent contact (once per month) between the children and their mother and that these contact visits take place as a family unit with siblings also attending. The report also recommended that the mother's contact visits with the children should be without supervision. In the mother's letter to the Department (sent by her solicitor) dated 20 June 2011, the mother requested an increase in the frequency and length of contact periods and for supervision to be reviewed. This request by the mother was consistent with the recommendations set out in the Clinician's Report dated 27 June 2008. The Department's letter in response dated 24 August 2011 indicated that contact visits would continue to occur four times per year and that the foster carers were willing to increase contact up to an hour and a half. Contact was to remain supervised by the foster carers; (5)The Applicant mother has been notified by Family and Community Services that Cameron and Melissa's foster parents plan to make an application to adopt the children; (6)The Applicant mother has not used illicit substances since approximately November 2006 and has undergone urinalysis tests since that time; (7)The Applicant mother has exercised contact with the children as permitted by the Care plan of 30/07/08; (8)The Applicant mother is not currently in a relationship and has not seen or had contact with the children's father since May 2010; (9)The Applicant mother's eldest son Jamie born April 1998 was placed in the full time care of the maternal grandfather, Bruce, in 1999. The maternal grandfather was also given parental responsibility for Jamie pursuant to a Care Order made in the Children's Court at Nowra on 17 November 2005. Since approximately September 2011 the child Jamie has been living with the mother on a full time basis in circumstances known to FaCS and with the full agreement of the maternal grandfather. FaCS have indicated that they would support the mother making an application for her to have parental responsibility for Jamie, and (10)The Applicant mother has actively engaged with all support services recommended by Family and Community Services, Ulladulla, and has applied what she has learnt in her parenting of Hannah and Jamie. 4The parties agreed that the Court's determination of the threshold question of whether leave should be granted, pursuant to section 90 (2) of the Care Act, be dealt with on the papers and submissions. The matter was listed for that purpose on Friday 3 February 2012 and the Court received written submissions from Mr Schier, the representative of the children, and oral submissions from the other parties. Prior to receiving those submissions the Court had read and considered the mother's application and amended application, as well as affidavits from the mother (2), the carer Ms Hodge (2), departmental case worker Rachel Kim and the adopted carer of the sibling Claudia, Ms Martin. 5The mother's application was opposed by the other parties. 6The relevant provisions of section 90 of the Care Act state: (1)An application for the rescission or variation of a care order may be made with the leave of the Children's Court. (1A) (not relevant) (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 vary or rescind the care order, the Children's Court must take the following matters into consideration: (a) the nature of the application, and (b) the age of the child or young person, and (c) the length of time for which the child or young person has been in the care of the present carer, and (d) the plans for the child, and (e) whether the applicant has an arguable case, and (f) (not relevant) (3)(not relevant) (3A) (not relevant) (4)(not relevant) (5)(not relevant) (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 wishes of the child or young person and the weight to be given to those wishes, (c) the length of time the child or young person has been in the care of the present caregivers, (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)(not relevant) (8)(not relevant) 7Mr Schier has accurately stated the case law relating to the granting of leave under section 90 in his written submissions and I do not propose to repeat that in this judgment. 8The granting of leave is a discretionary matter for the Court and requires the applicant to first establish that there has been a significant change in any relevant circumstance since the care order was made or last varied. 9Ms Rutkowska, for the applicant mother, submitted in this regard that if a significant change existed before the care order was last varied, then those changed circumstances should continue in respect of the current application. I understand the gravamen of Ms Rutkowska's submission to be that if the Court, in granting leave previously, was satisfied in respect of the mother's first section 90 application that there had been a significant change in a relevant circumstance since the final orders had been made in 26 May 2006, then those same changed circumstances should continue and be accepted by the Court as being a significant change in relevant circumstances in respect of the current application. 10To accept Ms Rutkowska's submission would allow section 90 applications to become somewhat unlimited in their scope, and to do so would be contrary to previous judicial decisions, for example, the decision of Mitchell SCM in In the matter of Jasper, handed down on 30 January 2006 [2006] CLN 2, when His Honour said "The point of the section, I think, is to protect a child from contested care proceedings by ensuring that proceedings come to an end unless there really is a good cause to reopen them." See also the comments of Crawford CM on 22 February 2001 in the case of DoCS v N [2001] CLN 3, which are quoted in Mr Schier's written submissions. Further the decision of Slattery J, in In the matter of Campbell [2011] NSWSC 761 where His Honour said at paragraph 38 "The legislative policy behind the requirement for leave in s 90 (1) is to reduce uncertainty and anxiety for children in care when applicants (often birth parents) apply for variation of Court orders, when they have little prospect of succeeding. The legislation does not remove the right for the parent or other applicant to rescind or vary a court order. Rather it modifies the exercise of that right in the interests of the child. 11In my view, this submission by Ms Rutkowska must be rejected. To accept the submission would require the Court to ignore the words "or last varied" in sub-section 90 (2). In this case the care order was last varied on 11 May 2009. In giving the sub-section a literal interpretation, the mother in this case must satisfy the court that there has been a significant change in any relevant circumstance since the care order was last varied on 11 May 2009. 12I propose to address each of the matters raised by the mother in turn as set out in her application to determine whether there has been a significant change in any relevant circumstances. 13I accept Ms Rutkowska's submission, however, that having regard to the Supreme Court decision in Campbell's case, the Court must, when considering whether there has been a significant change in any relevant circumstances, not look at a single event or incident but must consider the case as a whole. In Campbell's case, Slattery J said at paragraph 42, in relation to the issue of relevant circumstances, that 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. This broader approach reflects the existing practice of the Children's Court on section 90 applications: see for example In the matter of OM, ZM, BM and PM [2002] CLN 4, Senior Children's Magistrate Mitchell. 14In relation to the meaning of significant change, the following considerations was given by His Honour Slattery J in the case of Campbell: 43 Significant Change. 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. The Court of Appeal considered in S v Department of Community Services, a s 90 leave application. Davies AJA, with whom Heydon and Hodgson JJA agreed, described the change required for leave to be granted: "23 I should observe that a person seeking leave to apply for the rescission or variation of a care order is not required to prove on such an application that, if leave be granted, the person would be entitled to the order sought. The first step is simply to establish that there has been a change of sufficient significance to justify the consideration of an application for rescission or variation of the care order." There are dangers in my view, in paraphrasing the s 90 (2) statutory formula for the exercise of the discretion beyond this statement of the Court of Appeal. 44 The judgment of Davies AJA in S v Department of Community Services also shows (at [27]) how to measure "significant change" in relevant circumstances as required by s 90 (2). Such measurement "requires a comparison between the situation at the time the application was heard and the facts underlying the decision made or last varied". 45 The Children's Court frequently considers and applies s 90 (2). "Significant change" was considered in Re J, K and C [2002] 2 CLN 1 by Children's Magistrate Crawford. His Honour there was of the view that the change was of significance if, were it established, it would cause the Court to wish to alter the existing order. Although expressed in slightly different language this approach seems to me to be indistinguishable from the Court of Appeal's formula in S v Department of Community Services. The mother's grounds 15The mother has addressed all issues that led to the children being taken into care. Whilst the mother must be commended for addressing her drug addiction and mental health issues, and the Court does acknowledge this, the fact is that this Court made findings in this regard in its judgment on 11 May 2009 (refer to paragraphs 48 and 49 of the judgment). In my view this ground relied upon by the mother in respect of the current application does not amount to a significant change in any relevant circumstance. 16The mother gave birth to Hannah in January 2011, who has not been the subject of any FaCS intervention, and who is thriving in the mother's full time care, which demonstrates her parenting capacity. Ms Rutkowska conceded in her submissions to the Court that the birth of the sibling Hannah would not amount to a significant change in any relevant circumstance, however, it does provide a positive insight into her improved parenting capacity. 17In relation to the mother's improved parenting capacity, Mr Rutkowska also relies on the affidavit of the adopted carer of the sibling Claudia, Ms Martin, who says that she has seen a marked improvement in the mother and her parenting capacity since the failed section 90 application in 2009. Ms Martin supports the mother's current application. 18Mr Horsley, for the carers, submits that the fact that the child Hannah has not been removed from the mother, does not amount to a significant change in any relevant circumstance, nor does it entitle her to a positive finding by the Court that there has been an improvement in her parenting capacity, rather, it merely establishes that the child has not been removed. 19In my view the birth of the child Hannah does not amount to a significant change in a relevant circumstance since the care order was last varied. 20The mother has completed a number of parenting courses since 2009 (which includes a Practical Parenting Workshop in September 2010 - refer to mother's affidavit filed 7 November 2011). Ms Rutkowska made no submissions in relation to this specific issue, other than her submissions relating to the mother's improved parenting capacity, mentioned above. In its judgment of 11 May 2009, this Court acknowledged, in paragraph 48, that the mother had undertaken courses to improve her parenting skills, and also found, in paragraph 49, that with supports, provided the mother remained drug free and did not enter a violent relationship, that she could provide an adequate standard of care for the children. 21Both Mr Schier and Mr Horsley submit that in relation to the mother's parenting courses, she has not demonstrated how she applies what she has learned at such courses, other than stating that she uses the skills learned. She has not provided any particulars in this regard. 22In my view the mother's attendance at a two day parenting workshop does not amount to a significant change in a relevant circumstance since the care order was last varied. 23Family and Community Services did not implement the contact recommendations set out in the Children's Court Clinician's Report in 2008. Ms Rutkowska made no submissions in relation to this alleged changed circumstance. I agree with the submissions made my Mr Horsley that this is not a relevant consideration and is not a significant change in any relevant circumstance in respect of the current application. In any event, this Court found the Clinician, Ms McIver, to be a discredited witness in the last proceedings. 24The foster parents plan to make an application to adopt the children. I am satisfied that this ground does amount to a significant change in a relevant circumstance since the care order was last varied. A similar situation arose in the Supreme Court case of In the matter of Campbell [2011] NSWSC 761, in which Slattery J provided a detailed outline of the procedures and process that would apply if the adoption application proceeded. In particular I refer to paragraphs 67 to 85 of His Honour's Judgment. 25If the adoption does proceed in relation to the children Melissa and Cameron, the issue of contact will be addressed by the Court responsible for determining the adoption application. For similar reasons expressed by His Honour Slattery J in the case of Campbell, in exercising the Court's discretion I would not grant leave based on this ground. 26The mother has not used illicit substances since approximately November 2006 and has undergone urinalysis tests since that time. Ms Rutkowska submits that there is no evidence from any organisation, including FaCS, raising any concerns in relation to any illicit drug use by the mother. The Department has not requested the mother to undertake any urine drug analysis tests. It is submitted that there are too many people in the mother's life for any illicit drug use to go unnoticed. 27I am not satisfied that this ground amounts to a significant change in a relevant circumstance since the care order was last varied. In this regard this Court stated in its judgment dated 11 May 2009, at paragraph 14, that is was likely that the mother has been free of illicit drugs since the end of 2006, although there were areas of suspicion. The situation has not changed in view of the Court's findings in those previous proceedings. 28The mother has exercised contact with the children as permitted by the Care plan of 30 July 2008. I cannot see how this ground, namely the mother exercising approved contact, would amount to a significant change in a relevant circumstance since the care order was last varied. 29Having regard to the evidence tendered and relied upon in these proceedings, and also considering the submissions of all the parties, there are live issues relating to contact, both between the two children and the mother, and also sibling contact. These issues are being addressed as part of the ongoing casework. Contact is also being reviewed on an ongoing basis. There is also information before the Court that contact with the mother has been increased to two hours, and is to be increased to four hours, four times a year. 30The mother is not currently in a relationship and has not seen or had contact with the children's father since May 2010. In the Court's opinion, the question of the relationship between the mother and the father has significant importance. 31It was stated in paragraph 15 of the judgment of 11 May 2009 that the Court accepted the mother's evidence that she had not resumed a relationship with the father and had no intention of doing so. On that basis, the Court found that this did constitute a significant change in a relevant circumstance in those proceedings. It was established in those proceedings that the father was a dangerous man and that the relationship had been extremely violent. The father had served a custodial sentence for assaulting the child Melissa. The Court also referred to the dangers of exposing the children to the father if they were restored to the mother - see paragraph 52 of the judgment. 32The evidence before the Court in the current proceedings is that the mother did resume a relationship with the father in 2010 and this resulted in the birth of the child Hannah in January 2011. The mother claims the relationship was brief. It occurred about 12 months after the Court dealt with the mother's last section 90 application, at a time when the mother should have been aware of the Court's concerns. The Court finds it incredible that the mother, despite the evidence she gave to this Court in the last section 90 proceedings, was prepared to entertain any relationship with the father. The mother again claims that she has no intention of ever resuming a relationship with the father. The mother has no credibility in this regard, having regard to her previous evidence and stated intentions. It shows that she lacks insight into the impact this may have had on the children, in particular the child Melissa. 33I am not prepared to find that this ground constitutes a significant change in any relevant circumstances since the care order was last varied. In fact the Court is very concerned that this did occur and it impacts on the mother's ability to establish that she has an arguable case (see later in this judgment). 34The mother has full time care of her eldest son Jamie since about September 2011. The evidence before the Court in 2009 was that the mother had the day to day care of Jamie when he was in the care of the maternal grandfather, Bruce (refer to paragraph 18 of the earlier judgment). The fact that the mother continues to have the day to day care of Jamie, albeit without the assistance of her father, does not amount to a significant change in any relevant circumstances since the care order was last varied. 35Finally, the mother says she has actively engaged with all support services and has applied what she has learnt in her parenting of Hannah and Jamie. The mother has not provided any specific particulars or evidence regarding how she has applied what she has learnt from her engagement with support services. I am not satisfied that this ground amounts to a significant change in any relevant circumstances since the care order was last varied. 36For the reasons expressed in the previous paragraphs, with the exception of the issue of adoption, I am not satisfied that there has been a significant change in any relevant circumstances since the care order was last varied, both in relation to the mother's application to vary the previous orders allocating parental responsibility to the Minister and the carers, nor in relation to varying the previous orders to provide for the making of section 86 contact orders. 37Even if the mother was able to satisfy the Court that there had been a significant change in any relevant circumstances, the Court would exercise its discretion and refuse granting leave taking into account the considerations set out in sub-section 90 (2A). In my view the mother does not have an arguable case. 38In this regard, Mr Schier in his written submissions, which are on file, has accurately and succinctly summarised his position. I agree with those submissions but I do not propose to repeat then here, but I will incorporate them into this judgment. 39In conclusion, in relation to the mother's application under section 90, both in relation to the issue of parental responsibility and contact, I am not satisfied that there has been a significant change in any relevant circumstances since the care order was last varied that would warrant the Court to exercise its discretion to grant leave, and accordingly the application is dismissed. ********** Amendments 15 June 2012 - Case published incorrectly, now amended 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: 15 June 2012