District Court New South Wales Medium Neutral Citation: "B" v The Secretary, Department of Family and Community Services [2015] NSWDC 267 Hearing dates: 4 November 2015 Date of orders: 13 November 2015 Decision date: 13 November 2015 Jurisdiction: Civil Before: Levy SC DCJ Decision: Pursuant to s 90(2) of the Children and Young Persons (Care and Protection) Act 1998, leave is granted to the applicant to apply to vary or to rescind the orders made by the Children's Court on 4 June 2014. Catchwords: CHILD CARE APPEAL – application for leave to vary or rescind previous orders made by Children's Court Legislation Cited: Children and Young Persons (Care and Protection) Act 1998, s 9, s 90, s 91, s 105 Cases Cited: In the matter of Campbell [2011] NSWSC 761 Re Saunders v Morgan & Anor v Dept of Community Services, 12 December 2008, NSWDC, unreported Category: Principal judgment Parties: Secretary, Department of Family & Community Services (FaCS) "B" -The child "C" - Mother of the child (Applicant) "D" - The father of the child Representation: Counsel: Ms M Neville (FaCS) Mr M Boys (Solicitor for the applicant mother) The father - In Person Ms H Manson (Solicitor, independent legal representative of the child) File Number(s): 2015/108981 Publication restriction: Restriction on publication of names: s 105 of the Children and Young Persons (Care and Protection) Act 1998 Judgment Table of Contents Suppression order [1] Litigation pseudonyms [2] Application for leave to appeal [3] – [6] Representation on the appeal [7] Applicable principles [8] – [13] Evidence on the appeal [14] – [16] Factual background [17] – [27] Consideration [28] – [43] Orders [44] Suppression order 1. On 4 November 2015, at the commencement of the hearing of these proceedings, an order was made pursuant to s 105 of the Children and Young Persons (Care and Protection) Act 1998, ("the Act") prohibiting the publication of the name of the child the subject of these proceedings, or the publication of any information or details of any other parties, witnesses or persons named in evidence, that would tend to identify that child, who has been in the care of the nominee of the Department of Family and Community Services ("FaCS") since 16 October 2013. Litigation pseudonyms 1. To preserve anonymity of the child the subject of these proceedings, the following litigation pseudonyms have been assigned instead of using actual names: "B" The child the subject of the appeal "C" The mother of the child "D" The father of the child Application for leave to appeal 1. On 4 June 2014, the Children's Court at Lismore made final orders for the placement of the child "B" into the parental responsibility of the Minister for Family and Community Services (FaCS) until he reaches the age of 18 years. 2. On 23 January 2015, pursuant to s 90(2) of the Act, the mother of the child applied to the Children's Court for leave to apply to vary or rescind those orders. On 4 March 2015, the Children's Court at Lismore heard, determined and refused that application. 3. The basis of that refusal was that in the opinion of the Children's Court, the mother had not demonstrated a sufficiently significant change in her circumstances to justify a grant of the leave that was then being sought. 4. The mother of the child was dissatisfied with that outcome. As of right, she has therefore brought the present application appealing from those orders refusing leave to the District Court: s 91(1) of the Act. This appeal proceeds as a rehearing of the application before the Children's Court: s 91(2) of the Act. Representation on the appeal 1. Ms M Neville of counsel appeared for the Minister. Mr B Boys, solicitor, appeared for the applicant mother. Ms Manson, solicitor, appeared as the independent legal representative of the child "B". The father of that child appeared in person to make representations and submissions which indicated that he was in the same interest as the mother. Applicable principles 1. The paramount consideration in all child care cases is the safety, welfare and wellbeing of the child: s 9(1) of the Act. Those considerations require, amongst other matters, the protection of children from harm: s 9(2)(c) of the Act. 2. In order to seek to vary or rescind the existing orders of the Children's Court, the applicant must first obtain leave of the Children's Court: s 90(1) of the Act. Such leave may be granted if there has been a significant change in any relevant circumstances since the orders were made or last varied: s 90(2) of the Act. 3. Before granting such leave, the court must consider, numerous cumulative factors, including the age of the child, the length of time the child has been in a current placement, and notably, whether the applicant has an arguable case: s 90(2A) of the Act. 4. Central to those considerations is the question of whether the applicant has prospectively demonstrated an "arguable case" to "vary or rescind" or vary a care order: s 90(2A)(e); In the matter of Campbell [2011] NSWSC 761, at [39]. An "arguable case" is one that is not only capable of being argued, but one that has some prospect of success: In the matter of Campbell at [50]. 5. In the context of the present application, this means that the applicant must show there is a realistic or sensible possibility of the child being restored to the care of the applicant mother: Re Saunders v Morgan & Anor v Dept of Community Services, 12 December 2008, NSWDC, Judge Johnstone, unreported. 6. In the assessment of whether a realistic possibility of restoration has been demonstrated, a mere future possibility of restoration is insufficient. However, in making that assessment, it is permissible to take into account the fact that the applicant's case is on a course which, if continued, is likely to be supplemented with further evidence by the time of the ultimate hearing, once leave has been granted: In the matter of Campbell at [57]. Evidence on the appeal 1. A folder of materials was tendered in the proceedings and marked as Exhibit "1". It contained the following materials: 1. Amended summons commencing the appeal; 2. Affidavit of the mother affirmed on 4 September 2015; 3. Affidavit of the father affirmed on 4 September 2015; 4. Affidavit of the FaCS case worker, Rebecca Chaffer, affirmed on 1 October 2015; 5. Application made to the Children's Court dated 23 January 2015; 6. Affidavit of the mother affirmed on 23 January 2015; 7. Affidavit of the father affirmed on 12 February 2015; 8. Affidavit of the FaCS case worker, Rebecca Chaffer, affirmed on 25 February 2015; 9. Transcript of the proceedings before the Children's Court on 4 March 2015. 1. The orders of the Children's Court made on 4 June 2014 were tendered as Exhibit "2". A psychiatric report dated 29 October 2013 prepared by Dr Jonathan Lichter concerning the applicant was tendered as Exhibit "3". The historical criminal record of the father was tendered as Exhibit "4". The subpoenaed notes of the mother's treating psychologist were tendered as Exhibit "5". No additional oral evidence was adduced in this appeal. The appeal was conducted by the tender of those documents and subsequent oral submissions, following which judgment was reserved. 2. Significantly, the applicant mother, and the father, were not required for cross-examination on their affidavits. Factual background 1. The mother is aged 47 years. She is Aboriginal. She has 4 children from prior relationships, aged 28 years, 27 years, 24 years and 14 years. The father is aged 51 years. He has two adult children aged 22 and 27 years from another relationship. 2. The child "B" is now aged 3 years, 6 months. FaCS first became involved with the mother as a result of child protection orders in respect of some of her other children. The mother has had a history of drug abuse, chronic neglect of children, mental health issues, and having been subjected to domestic violence. FaCS became involved with the child "B" since his birth as a result of the described antecedent events involving the family, and because of existing protection orders in respect of the mother's other children. 3. On 14 October 2013, FaCS made a decision to remove the child "B" from the mother's care. This was implemented on 16 October 2013. The child was then placed into the care of his older half-siblings, a half-brother and a half-sister respectively aged 28 years and 24 years. On 29 October 2013, the Children's Court at Tweed Heads made an interim order placing the child in the parental care of the Minister. On 4 June 2014, that placement of care order was made final, and was expressed to be effective until the child "B" reaches the age of 18 years. 4. On 23 January 2015, the mother filed an application to the Children's Court at Tweed Heads seeking to have the order made by that Court on 4 June 2014 rescinded. On 4 March 2015 that application was refused. 5. The child "B" has remained in the present kinship placement since 16 October 2013. He has a strong attachment to his older half-brother. He has periodic supervised contact with his parents. He attends pre-school 3 days per week and there have been no concerns raised by caseworkers over his progress and development. 6. There have been discussions and negotiations between FaCS and the mother's solicitor over a reconsideration of minimum outcomes outlined by FaCS in the care plan that currently remains in place. Those discussions have reached a sticking point concerning the unmet expectations of FaCS in respect of evidence of satisfactory results of testing to demonstrate that the mother is drug free. 7. Both the mother and the father have submitted to serial testing of samples of hair and hair follicles in an endeavour to seek to satisfy FaCS that they do not use prohibited drugs: Exhibit "1", Tab 4, paras 38 – 45; para 49. 8. In the case of the mother, a complication has arisen concerning the results of such drug testing. This is because since 1 June 2015, the mother has been taking medically prescribed doses of Dexamphetamine for a recently diagnosed condition of attention deficit disorder ("ADD") that is thought to have been extant since childhood: Report of Dr Jonathan Lichter, Exhibit "3". 9. In the meantime, the child's parents presently continue to have supervised contact sessions with the child jointly twice per month. It appears the child enjoys those sessions but becomes upset at separation from those sessions, particularly when he separates from his father. The child also has fortnightly overnight contact with his paternal grandparents and he has regular contact with his half-sister aged 24, and her children. 10. A complicating feature of the case is the father's criminal history. Without going into the entirety of that history, which spans the period 1980 to 2013, for which it must be acknowledged that he has duly paid his penalties to society, it is relevant to note that relatively recently, in March 2013, the father was arrested for drug related offences concerning possessing a prohibited drug, cultivation and manufacture of a prohibited drug, resisting an officer in the course of executing duties, and possession of a weapon without a permit. He was convicted and imprisoned for those offences. He was released from prison after serving a series of concurrent sentences for an overall total period of 12 months: Exhibit "4". 11. In the Children's Court, the transcript of submissions made on behalf of the applicant mother shows those submissions to have been somewhat combative, and those submissions were not accepted: Exhibit "1", Tab 9, T3.35; T5.11; T5.35; T5.46; T6.33; T7.19; T8.40; T9.39; T10.1; T10.12 – T10.40. That combative tone was again reflected in submissions at this hearing. Consideration 1. The mother has obviously taken considerable steps to seek to show she has remained drug free. This has been achieved at an expense she finds difficult to afford. She has had intermittent testing that goes a good way towards showing this to be the case. 2. The evidence she has obtained would in a further appeal, need to be significantly updated, and upgraded for currency. That evidence would also need to be in the form of a cogent report intended for consideration at a further hearing aimed at ascertaining whether she has relevantly maintained her drug free status. 3. It appears from the evidence that the plaintiff will encounter difficulty obtaining such laboratory testing in Australia because of technical issues concerning the nature of hair and hair follicle testing in the context of her ingestion of legally prescribed amphetamines for treatment of her ADD condition. 4. The fact that such difficulties exist does not necessarily mean that those difficulties are insurmountable. In that regard, this specific difficulty may be more relevant to the timing of an actual application to rescind the previous orders made on 4 March 2015. 5. Stating the obvious in the interests of clarity, until those difficulties have been satisfactorily addressed by the appropriate forensic decisions, actions and reports, a further application to the Children's Court clearly risks failure. The onus would be on the applicant to show that the leave sought should be granted. 6. The applicant is anxious for her son to be restored to her care by Christmas 2015. That result is unlikely on the present state of the evidence. She has recommenced her relationship with the child's father since his release from prison and they live together. She has difficulty dealing with the reality that she no longer has the care of her son, although she has reasonable contact with him. 7. There are aspects of the applicant's position which tends to suggest she and the father are pursuing this application to satisfy their own needs to be with their child rather than acknowledging that it may be in the child's best interests to remain in the care of his elder half-brother, where he has a stable well-cared for existence. 8. There are also aspects of the application that indicate that it may be premature, as was submitted by the independent legal representative of the child. That submission was made because of the state of the evidence and the relatively short period of time the parents have been reunited since the father's release from prison. This is in circumstances where the father's individual circumstances have not yet been fully assessed in the form of an appropriate report. 9. As yet, there is no report from the treating psychologist in respect of her sessions with the mother between 10 November 2014 and 17 October 2015. This is because of her recent unavailability. That omission should be readily remediable. There are other steps that also need to be finalised before the evidence could be said to be satisfactory. 10. Against those considerations, the father has been submitting to periodic drug screening tests, he has been in gainful employment, and he has expressed the ardent desire to remain on a stable course and to properly take on his role as the father of the child, aided by the support of his family and the half-siblings of the child. 11. In taking an overview of the circumstances, I consider that there has been some discernible change in the circumstances of each of the parents. They appear to be on a rehabilitative trajectory. This is evidenced by submitting to psychiatric assistance in the case of the mother, regular employment in the case of the father, and appropriately satisfactory periodic drug testing, noting the limitations of that testing in the mother's case, having regard to her ingestion of prescribed medication for her ADD condition. 12. Within the above circumstances, there is a clear impression that the leave sought by the mother is sought prematurely, as has been submitted. This is in view of the relatively early stages of the positive directions taken by the couple, and the presently limited evidence concerning the longevity of their argued stability. 13. On the other hand, a discernible change of course is apparent, particularly as the mother is under specialist medical supervision and treatment. In my view, this broadly fits within the concept of an arguable case for the possibility of eventual restoration, particularly if the anticipated supplementary evidence is obtained for the hearing of the ultimate application for leave to proceed: In the matter of Campbell, at [57]. 14. That said, the presently discernible trajectory would require support from cogently constructed evidence of the circumstances of the mother, and since the father is in the same household, cogent evidence of his reformation as well, especially given his relatively recent criminal drug-related offences. That is necessary in the interests of the safety and wellbeing of the child. 15. In that latter regard, although the father must be considered to have paid his penalty for his involvement in drugs, in the paramount interests of the child, the Children's Court would need to be comfortably satisfied that the father's rehabilitation has been successful. 16. Whilst for the above reasons, the threshold for the grant of leave has been established, it must also be recognised that adequate time should be allowed to pass for the required cogent evidence to be assembled. Otherwise, the foreshadowed application may well be doomed to fail due to prematurity. It is unlikely that generalised combative submissions will overcome the deficits of a premature application made without adequate evidentiary support. Orders 1. Pursuant to s 90(2) of the Act, leave is granted to the applicant to seek to vary or to rescind the orders made by the Children's Court on 4 June 2014. ********** 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: 16 November 2015