Children's Court New South Wales Medium Neutral Citation: Department of Family and Community Services v KR [2012] NSWChC 8 Hearing dates: 20 March 2012 Decision date: 30 March 2012 Jurisdiction: Care and protection Before: Magistrate T. Tsavdaridis Decision: The mother's application for leave under s 90 of Children and Young Persons (Care and Protection) Act 1998 (NSW) is refused. Catchwords: Children and young persons - Children and Young Persons (Care and Protection) Act 1998 (NSW) - Mother's application for leave under s 90 to pursue unsupervised contact orders of greater frequency under s 86 - whether significant change in any relevant circumstances between date of hearing and date orders last varied - application refused Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW); sections 86, 90, 91 Cases Cited: S v Department of Community Services [2002] NSWCA 151 Re Tracey [2011] NSWCA 43 Re Elizabeth (21.9.2011, NSWDC, unreported, per Letherbarrow SC DCJ) Jasper [2006] CLN 2 (per Mitchell CM) In the matter of Campbell [2011] NSWSC 761 In the matter of OM, ZM, BM and PM [2002] CLN 4 Category: Principal judgment Parties: KL (Mother) Director-General, Department of Family and Community Services CH (Foster Carer) KR (Child) Representation: Ms L Goodchild (Counsel for the mother) Mr M Anderson (Counsel for the Department) Ms K Renshall (Solicitor for the foster carer) Mr R Clarke (Independent Legal Representative the child) File Number(s): 626/08-003 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who is reasonably likely to involved or mentioned in Children's Court or non-Court proceedings in any capacity must not be published or broadcast in any form that may be accessible by a person in New South Wales whether the publication or broadcast occurs before any proceedings have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 1This is a decision in relation to care proceedings in the matter of Department of Family and Community Services and KR, born 22 August 2005, now 6 years of age. 2By an application filed 19 October 2011, pursuant to s 90 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Act), the mother, Ms KL, seeks to vary the care orders made in respect of her daughter, who currently is (and has been since the assumption of care on or about 10 October 2006) in the care of a foster carer, Ms CH, after being removed from the mother by the Department of Family and Community Services (the Department). 3By virtue of s 90 (1) of the Act, such an application can only be made with the leave of this Court. Pursuant to s 90 (2), leave may be granted if it appears that there has been a significant change in any relevant circumstances since the care order was made or last varied. 4The matter has been the subject of extensive litigation at almost every level in the hierarchy of Courts in this State including the Children's Court, the District Court and the Court of Appeal. I do not propose to recount that history in these reasons as it is not necessary for the purposes of this application. The history is accurately set out in the affidavits of the mother sworn 17 October 2011 and the caseworker, Ms Toni McMahon, sworn 14 February 2012 and, indeed, in the decisions of Re Tracey [2011] NSWCA 43 and Re Elizabeth (21.9.2011, NSWDC, unreported, per Letherbarrow SC DCJ). 5In order to understand the basis of the application, however, it is beneficial to briefly set out the factual background against which the application is brought. 6On or about 10 October 2006, the mother travelled with her only child from Cambodia to Australia and, upon arrival at Sydney Kingsford Smith Airport, was arrested and detained, having been suspected of being involved in the importation of narcotics. Following investigations, it was revealed that she had ingested a number of packages containing heroin and that her baggage contained similar narcotics. 7Upon the mother's arrest, the child was taken into the care of the Minister for Family and Community Services and was placed in the care of a foster carer, with whom she still resides today. 8On 2 November 2007, in the District Court of NSW, the mother was sentenced for the drug offences to a head term of imprisonment of 4 years and 5 months, with a non-parole period of 2 years and 9 months from 10 October 2006 to 9 July 2009. 9Since being released from custody on 9 July 2009, the mother has, as one might expect, agitated the decision to have the child placed in foster care with parental responsibility of the Minister, with some elements of parenting shared jointly with the carer and other aspects held solely, until she attains the age of 18 years. 10The last occasion on which the mother's rights were pursued was before Letherbarrow SC DCJ in the District Court of NSW, when the matter was remitted to his Honour by the Court of Appeal to be dealt with according to law following the earlier decision of Balla DCJ in the District Court on 28 July 2010, which was quashed. 11The practical effect of the decision of Letherbarrow SC DCJ on 21 September 2011, in his reasons cited as Re Elizabeth, heard over eight days, was that the mother's application, being in the nature of an appeal from the decision of the Children's Court on 15 May 2009, was dismissed and, subject to the variation of the order for the removal of one of the two carer's names from the order, Ms LH, on account of her passing, the orders of the Children's Court made on 15 May 2009 were confirmed. The relevant legislation 12Section 90 of the Act provides as follows: 90 Rescission and variation of care orders (1) An application for the rescission or variation of a care order may be made with the leave of the Children's Court. (1A) The Children's Court may order a person who makes an application under this section to notify those persons whom the Children's Court specifies of the making of the application. Note. Section 256A sets out the circumstances in which the Children's Court may dispense with service. (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) matters concerning the care and protection of the child or young person that are identified in: (i) a report under section 82, or (ii) a report that has been prepared in relation to a review directed by the Children's Guardian under section 85A or in accordance with section 150. (3) An application may be made by: (a) the Director-General, or (b) (Repealed) (b1) the child or young person, or (c) a person having parental responsibility for the child or young person, or (d) a person from whom parental responsibility for the child or young person has been removed, or (e) any person who considers himself or herself to have a sufficient interest in the welfare of the child or young person. (3A) If: (a) an application is made to the Children's Court by a person or persons (other than the Director-General) for the rescission or variation of a care order (other than a contact order) in relation to a child or young person, and (b) the application seeks to change the parental responsibility for the child or young person, or those aspects of parental responsibility involved in having care responsibility for the child or young person, and (c) the Director-General is not a party to the proceedings, the applicant must notify the Director-General of the application, and the Director-General is entitled to be a party to the application. (4) The Children's Court is not required to hear or determine an application made to it with respect to a child or young person by a person referred to in subsection (3) (e) unless it considers the person to have a sufficient interest in the welfare of the child or young person. (5) If: (a) an application for variation of a care order is made or opposed by the Director-General, and (b) a ground on which the application is made or opposed is a ground that has not previously been considered by the Children's Court, the ground must be proved as if it were a ground of a fresh application, or of opposition to a fresh application, for a care order. (6) Before making an order to rescind or vary a care order that places a child or young person under the parental responsibility of the Minister, or that allocates specific aspects of parental responsibility from the Minister to another person, the Children's Court must take the following matters into consideration: (a) the age of the child or young person, (b) the 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) If the Children's Court is satisfied, on an application made to it with respect to a child or young person, that it is appropriate to do so: (a) it may, by order, vary or rescind an order for the care and protection of the child or young person, and (b) if it rescinds such an order-it may, in accordance with this Chapter, make any one of the orders that it could have made in relation to the child or young person had an application been made to it with respect to the child or young person. (8) On the making of an order under subsection (7), the Children's Court must cause notice of the order to be served on the Director-General. The present application 13There are currently no formal contact orders in place. The care plan, on which the orders dated 15 May 2009 was based, provides for a minimum of monthly, supervised contact between the mother and the child. The mother has, however, for some time, enjoyed informal supervised contact at a frequency of once per fortnight. The Director-General has proposed that the mother maintain fortnightly supervised contact until 31 March 2012 and does not oppose the ongoing frequency of that level of contact on the basis that the mother contribute to half the costs of supervision and transport. 14The mother's application to vary the care orders currently in place is grounded in her desire for a formal contact order to be made, pursuant to s 86 of the Act, to provide for unsupervised contact, initially at a frequency of once per week for three hours, progressing to overnight contact. 15The mother's application is opposed by all parties, namely, the Director-General, the independent legal representative for the child, and the foster carer. 16The hurdle which the mother must overcome in order to succeed in leave being granted is not insurmountable. However, there are good reasons why it is in place, including to act as a filter in ensuring that only those applications with sufficient merit proceed to a hearing and, as stated in Jasper [2006] CLN 2 (per Mitchell CM), "to protect a child from contested care proceedings by ensuring that proceedings come to an end unless there is good cause to re-open them." 17The mother bears the onus of proving, on the balance of probabilities, that there has been a significant change in any relevant circumstances since the care order was made or last varied: s 90 (2) of the Act. 18As to the relevant test to be applied, in In the matter of Campbell [2011] NSWSC 761, Slattery J (at [41] - [43]), held as follows: "41 The words of Care Act, s 90 (2) raises three legal issues in these proceedings: what are "relevant circumstances"; what is "significant change" and, when was the care order "made or last varied". 42 Relevant Circumstances. 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 s 90 applications: see for example In the matter of OM, ZM, BM and PM [2002] CLN 4, Senior Children's Magistrate Mitchell. 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." 19These three distinct beacons in s 90 (2) are not to be conflated. In the present application, the date upon which the orders relating to the child were last varied was 21 September 2011, by Letherbarrow SC DCJ in the District Court of NSW. The date upon which this application was heard before me was 20 March 2012. Therefore, it is this six-month period to which I must turn my mind in assessing whether the mother has demonstrated a significant change in any relevant circumstances. 20I understood the peripheral submissions made on behalf of the mother in support of her application for leave to be as follows: (a)the effluxion of time, during which the child has been in foster care, has worked to the detriment of the mother; (b)the proceedings before the District Court of NSW, and indeed the decision itself on 21 September 2011, was based on the assumption that the mother was to be deported; (c)the conclusion arrived at by Letherbarrow SC DCJ in the District Court of NSW on 21 September 2011 was as a result of the child's attachment to the foster carer, that is, that for the purposes of psychological risk to the child, it was, in the short term, too important a consideration to ignore; (d)no current contact orders are in place; (e)the child has a close connection and relationship with her mother and the child finds contact an enjoyable experience, matters which are conceded by the caseworker and the Director-General; and (f)there is a real issue as to whether supervision of contact is even necessary. 21By far, however, most emphasis was placed upon the following three circumstances, submitted by the mother's counsel as being indicative of significant change: (a)the finding made in the written reasons of Letherbarrow SC DCJ in the District Court of NSW on 21 September 2011 (at [140]) that "... the mother has made significant improvements in her life and I am now satisfied that she would be a good mother to Elizabeth if she is returned to her." (b)the mother has lodged an application, for the intervention of the Minister for Immigration and Citizenship, for the granting of a visa to remain in Australia, noting that the assumption on which the proceedings in the District Court of NSW were predicated was that the mother would be deported: Re Elizabeth (supra at [15]); and (c)the possibility that contact may cease, given the Department's future plans, outlined in paragraph 48 of the caseworker's affidavit sworn 14 February 2012, to the effect that "Community Services has committed to providing supervised contact for two hours once per fortnight until 31 March 2012. Community Services does not oppose the ongoing frequency of the current level of contact, on the basis that the mother contributes half the cost of supervision and transport." The uncertainty, it was submitted, constitutes a significant change. 22I now turn to each of the primary bases referred to above. The finding made in the District Court of NSW on 21 September 2011 23Having had the opportunity of reading the decision of Letherbarrow SC DCJ in the District Court of NSW on 21 September 2011, I respectfully agree with his Honour that during her incarceration and post-release, the mother has made significant improvements in her life. She has obtained self-employment, with approval, is obtaining work experience as a hairdresser once a week, and has completed a number of courses through various organisations. She is currently undertaking a course of study at TAFE for an ESOL (English for Speakers of Other Languages) certificate. She presents, through her affidavits sworn 17 October 2011, 31 January 2012 and 20 March 2012, as a highly-motivated and committed individual who is thoroughly remorseful for the actions which placed her in the predicament in which she finds herself. It is admirable that she has not called for any departmental or other governmental financial assistance in these pursuits. She has received some departmental assistance in the little care she has provided to the child. A great part of her ongoing educational pursuits and accomplishments have been buoyed by her eagerness to remedy the situation and by her concern for her daughter's welfare. According to her affidavit sworn 17 October 2011, she has received enormous support from the Baptist Church, of which she is a member, which established a missionary fund on behalf of her and the child, for which, I accept, she is profoundly grateful. I note, however, that all these factors were present, and relied upon, at the proceedings in the District Court of NSW, culminating in its decision on 21 September 2011. 24As recently as last weekend, she moved from Eastwood to Gladesville where she resides in a two-storey, four-bedroom house with one of the elders of the Drummoyne Baptist Church and his wife. One of the bedrooms has been prepared for the child with all necessary furniture and toys and the child's school is a five to ten minute walk from the home. This is the only material change I was able to identify that was not before, and did not form part of the reasons of, the District Court of NSW in its decision of 21 September 2011. Bearing this in mind, and with unfeigned respect to his Honour Judge Letherbarrow SC, I too am of the opinion that the mother has made significant improvements in her life and would be a good mother to the child if she were returned to her care. 25I accept the submission that this ground is not relied upon by the mother for the restoration of the child to her care but, rather, for the exercise of contact of the kind and increased frequency pleaded in her application filed 19 October 2011. 26The "finding" that "... the mother has made significant improvements in her life and I am now satisfied that she would be a good mother to Elizabeth if she is returned to her" must, however, be read in context. His Honour Judge Letherbarrow SC DCJ was, at that juncture of his judgment, dealing with the mother's capacity to provide an adequate standard of care for the child in his assessment of the matters referred to in s 90 (6) of the Act. Being an appeal to the District Court, albeit in the nature of a hearing de novo pursuant to s 91 of the Act, leave, on the part of the mother, was not in issue and did not feature in his Honour's judgment, save to the extent that the Director-General sought, and obtained, leave to vary the care order made in the Children's Court on 15 May 2009 by the removal of one of the carer's names, due to her passing. 27What is made clear by Davies AJA in S v Department of Community Services [2002] NSWCA 151 is that the question of leave pursuant to s 90 (2) of the Act turns on "a comparison between the situation at the time when the application was heard [20 March 2012] and the facts underlying the decision when the order was made or last varied [21 September 2011]." 28That being the case, this ground, as relied upon by the mother in support of her application for leave, is, in my view, misconceived. All of the "relevant circumstances" described above were before Letherbarrow SC DCJ at the time of hearing and nothing since that date, in my view, constitutes change of a significant kind. 29It follows that this ground must fail. The mother's application for the granting of a visa to remain in Australia 30As at the date of this judgment, the mother's immigration status remains unresolved. She continues to hold a bridging visa permitting her to remain, and work, in Australia in the interim. Her application to the Migration Review Tribunal for a review of her original application to remain in the country permanently was declined and she has since made an application seeking the intervention of the Minister for Immigration and Citizenship. It is not entirely clear to me from the material filed by the parties precisely when that application was lodged with the Minister for Immigration. I accept that it was most likely lodged in the days or weeks after the District Court of NSW gave its decision on the appeal proceedings on 21 September 2011. I note that the testimonials addressed to the Minister for Immigration, presumably in support of the application seeking his intervention, and annexed to the affidavit of the mother sworn 17 October 2011, bear dates in early September 2011. 31The outcome of that application is still pending and, having regard to the District Court hearing proceeding on the assumption that the mother would be deported, it was submitted on behalf of the mother that the application for the Minister's intervention represents a significant change in relevant circumstances. The mother, through her counsel, did concede however, that this ground is not as forceful as what it might otherwise have been had a visa permitting permanent residency been granted by the authorities. 32The re-classification of the basis on which the mother seeks to pursue her immigration review rights, that is, formerly agitating the proceedings in the District Court of NSW on the ground that she would be deported and now presently agitating the proceedings, in part, on the ground that she has lodged an application to remain in Australia permanently via Ministerial intervention, does not, in my view, surmount the hurdle posed by s 90, requiring a significant change in relevant circumstances. The corollary of this finding is, of course, that were she to succeed in obtaining the Minister's approval to remain in Australia indefinitely, the position would be quite different and would, in my opinion, represent a change in relevant circumstances of sufficient significance so as to warrant leave being granted by this Court. 33It follows, therefore, that this ground must also fail. The possibility that contact may cease 34It was submitted on behalf of the mother that because the Department has only committed itself to providing supervised contact between her and the child at the frequency currently enjoyed, that is, fortnightly, until 31 March 2012, the uncertainty as to the future of contact and its frequency is tantamount to a significant change in relevant circumstances. 35The mother relies upon paragraph 48 of the caseworker's affidavit sworn 14 February 2012, to the effect that "Community Services has committed to providing supervised contact for two hours once per fortnight until 31 March 2012. Community Services does not oppose the ongoing frequency of the current level of contact, on the basis that the mother contributes half the cost of supervision and transport." 36The mother contends that it is a real issue as to whether supervision is even necessary given that she has a close connection and loving relationship with the child. The fact that the mother has such a close connection with her child is not disputed by the Department. The Director-General, through his representative, submitted that the care plan proposes a minimum of one contact visit per month and that the child's relationship with the mother is maintainable by monthly contact visits. It does not, however, oppose the current frequency of once per fortnight on the proviso that the mother contributes half the cost of supervision and transport. The mother further contends that both she and the child need certainty on this front. 37Notwithstanding that the care plan makes provision for monthly supervised contact, the mother's fortnightly supervised contact has been continuing regularly since May 2011, following a decision of Walmsley DCJ in the District Court of NSW which reinstated that level of frequency by way of interim orders made on 19 April 2011, and which were to maintain the status quo through to the hearing before Letherbarrow SC DCJ. 38I have difficulty accepting the proposition submitted on behalf of the mother, that the uncertainty of contact frequency or contact arrangements past the arbitrarily chosen review date of 31 March 2012 and therefrom constitutes a significant change of relevant circumstances. There does not, in my view, appear to be any identifiable factor which would clear the hurdle posed by s 90 of the Act. In some respects, the application for leave might be seen as having been brought prematurely given the fact that much greater weight would have been placed on submissions directed towards, for example, the Department's decision to suspend contact altogether, or to propose something less than that which was contained in the care plan approved by this Court and affirmed by the District Court, or to materially alter the frequency or nature of the fortnightly supervised contact enjoyed by the mother, albeit on an informal basis, to date. Neither of those courses has been adopted by the Department. 39For these reasons, this ground must also fail. Conclusion 40The disposition of this application turns on the purely legal threshold test posed by s 90 of the Act. The Court is, to a great extent, constrained by the wording of the section and any sympathy for the mother's predicament should not be permitted to eclipse the proper application of the test when reconciling the material submitted in support of the orders sought by the mother. 41Given that the mother fails at the first hurdle of the threshold test, it is not, in my view, necessary to proceed further by considering the matters set out in s 90 (2A) of the Act, which apply only before granting, rather than refusing, leave to vary or rescind care orders, or the matters referred to in s 90 (6) of the Act, which apply before the making of an order to rescind or vary care orders. Orders 42The mother's application for leave under s 90 of the Act is refused. 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: 18 June 2012