Children's Court New South Wales Medium Neutral Citation: Department of Family and Community Services (DFaCS) and Bridget [2019] NSWChC 4 Hearing dates: 30 January 2019 and 20 March 2019 Date of orders: 23 April 2019 Decision date: 23 April 2019 Jurisdiction: Care and protection Before: Children's Magistrate Sheedy Decision: Leave granted to bring an application for leave to vary/rescind the order Catchwords: CHILDREN – Care and Protection – Leave to vary or rescind a care order Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Children and Young Persons (Care and Protection) Amendment Act 2018 Cases Cited: Dempster v National Companies and Securities Commission (1993) 9 WAR 215 In the matter of Campbell [2011] NSWSC 761 Re M (No 6) NSWSC 170 S v Department of Community Services [2002] NSWCA 151 Category: Procedural and other rulings Parties: The Secretary The Mother The Child Representation: Mr McLachlan, solicitor, for the Secretary Ms Lenz, solicitor, for the mother Ms Wells, solicitor, for the child as Independent Legal Representative (ILR) File Number(s): 2018/352468 Publication restriction: Pseudonyms have been used in order to anonymise the child and parties Judgment Background 1. Bridget Morrison was born in 2010 and she is an Aboriginal child. 2. On 1 September 2014 Bridget was removed from the care of her mother, Amy Potter and her mother's partner, Kenneth Lloyd. 3. The mother and Mr Lloyd began a relationship in February 2014 and they began living together in July 2014. They had a child Maisie Loyd, who was born in 2016 and they remained living together until Mr Lloyd was incarcerated in 2017. 4. Bridget was placed with Aboriginal foster carers Karen and Geoff by the non-government organisation ('NGO'), Kari, on 2 September 2014, when she was 4 years old. Bridget remains in that placement. Kari, is the NGO the Secretary of the Department of Family and Community Services ('Community Services') has contracted with to case manage Bridget's case. 5. On 4 September 2014 the Secretary brought a Care Application. Bridget's natural father, Sam Morrison, chose to play no part in the proceedings just as he had chosen to play no part in Bridget's life since she was one year old. 6. During the care proceedings Bridget was represented by her Independent Legal Representative, Ms Wells ('the ILR'). 7. It is not in dispute that the reasons for the Secretary's intervention in 2014 and the care proceedings that arose from the intervention were: 1. The mother's long-standing drug use; 2. Mr Lloyd's long-standing drug use; 3. Criminal activity of both the mother and Mr Lloyd related to drug use; 4. Mental health issues that were not being addressed; 5. The unhygienic state of the home; 6. Lack of appropriate supervision and neglect of Bridget; and 7. Bridget's developmental delay not being addressed in the home environment. 1. Ms Wells also highlighted that, in the initial Care Proceedings, it was established that the mother failed to prioritise Bridget's special needs. I accept that given the other issues in the home, a conclusion must follow that Bridget's needs were not prioritised by the adults charged with her care. 2. The Children's Court made a finding that there was no realistic possibility of restoration to either the mother or Mr Morrison and on 14 July 2015 made a Final order placing Bridget under the parental responsibility of the Minister until she attained the age of 18 years. In making that order the Court approved the Care Plan for Bridget providing for long term out-of-home care, there being no family members able to provide suitable care. 3. The Secretary's evidence is that Bridget's culturally appropriate placement was not originally intended to be a long term placement however, at some stage it was changed to a long term placement. The reports of the placement and Bridget's development in that placement are all positive. 4. An assessment of Bridget undertaken in June 2017 indicates that Bridget is functioning in the very low range of intellectual ability and her adaptive functioning is in the extremely low range. She has a Mild Intellectual Disability. 5. Shortly after Maisie's birth in April 2016 Community Services completed a safety assessment and assessed the risk to Maisie as "moderate." Maisie's file was consequently closed by Community Services. 6. On 23 September 2016 the mother filed an Application pursuant to s 90 of the Children and Young Persons (Care and Protection) Act 1998 ('the Act') seeking leave to bring an application for restoration of Bridget to her care. The Application was dismissed by the Children's Court on 24 June 2017. 7. Sometime later either Kari, or Community Services, or both, decided a restoration viability assessment should be undertaken given: 1. The mother and Mr Lloyd were working with Community Services; 2. The mother was working with all services; 3. The mother was engaged in drug and alcohol counselling; 4. The mother reported being drug free since July 2015; 5. The mother completed MERIT (Magistrates' Early Referral into Treatment) in 2014; and 6. The safety assessment after the birth of Maisie assessed the risk as moderate. The family engaged in Brighter Futures and there were no concerns and no Risk of Serious Harm ('ROSH') reports made. The parents were providing what Community Services considered to be "safe parenting" to Maisie. 1. Ms Miller, an independent assessor, was engaged to undertake an assessment of the viability of restoration and she began that assessment in early 2017. 2. On 22 April 2017 Mr Lloyd perpetrated a serious assault on his neighbour whom he had invited to a party at his and the mother's home. It was actually the mother who found the neighbour and called the ambulance. The attack was described by the sentencing judge as ferocious and persistent. Since this offence Mr Lloyd has remained in custody. 3. On 10 May 2017 Ms Miller provided her report and concluded that she would have supported immediate restoration had it not been for the assault Mr Lloyd perpetrated on his neighbour on 22 April 2017. Instead she recommended that restoration be delayed for six months to allow the mother to demonstrate she can adjust to the altered circumstances, with Mr Lloyd incarcerated. In her report she stated: "Due to the seriousness of this incident, Amy has asked Kenneth to leave the family home and reside elsewhere, if he is bailed. Amy acknowledges that Kenneth is still an important part of both Maisie and Bridget's life but after being charged with the assault she does not want him to be a part of their day to day lives… Amy has clearly articulated that her children are her primary focus." 1. The focus of the assessment was on the changes the mother and Mr Lloyd had made and much of it was based on self-reporting. There was no assessment of Bridget's attachment to her long term carers and no consideration of the effect on Bridget of being removed from her long term carers. Ms Miller stated in her report that she was impressed by the couple being "open and honest" with her. Mr Lloyd told her he had not used drugs for twelve months. This statement has proven to be false. 2. On 29 November 2017 Kari and Community Services began a course of unsupervised and increasing contact between Bridget and the mother. 3. On 15 January 2018 Ms Miller provided her 'Addendum Restoration Viability Assessment for Bridget Morrison.' In this report Ms Miller recommends restoration to the mother with careful transition planning "to avoid any further instability for Bridget." She stated: "Amy and Kenneth have been very clear about their intentions to maintain a relationship and for him to return to the family home, if approved. Amy has stated on multiple occasions 'the children come first' and she will not do anything to jeopardise the restoration of Bridget or the safety of the girls. Kenneth has supported this by saying he will only return to the home if it is approved by the appropriate authorities. Kenneth has committed a serious assault while under the influence of alcohol. He has taken responsibility for his actions and has confirmed his intentions to address the violent behaviour and his long term marijuana use. He has no history of violence or of alcohol misuse and has stated he has no intention of drinking alcohol again in the future. Prior to Kenneth returning home a risk assessment is recommended to be completed. This assessment should include specific information from the rehab provider regarding his engagement and commitment to recovery, along with urinalysis results from the same period. Similarly, in relation to the violent offenders' program." 1. The addendum to the assessment does not consider the attachment of Bridget to her current carers nor is there any assessment of the mother's insight into the risks posed by Mr Lloyd. 2. Mr Lloyd was sentenced by the District Court on 19 June 2018 to a term of imprisonment for 5 years and 3 months for recklessly causing grievous bodily harm. His sentence expires in August 2022 although he is eligible to apply for release on parole on 4 May 2020. The mother was in court when Mr Lloyd was sentenced and she heard the sentencing judge's remarks which included the following: "The victim remained at the offender's premises for about an hour before deciding to return home. As he walked along the footpath on the street, the offender came up behind him, put his left arm around the victim's neck and placed him in a headlock whilst at the same time holding a knife in his right hand pointing towards the victim's right eyebrow. The offender said words to the effect, "don't say a fucking word, just keep walking". The offender began walking the victim towards the victim's house was still holding the victim in a headlock. The victim walked along with the offender fearing that he would be stabbed if he did not comply with his instructions. When Ms Potter "attended the victim's home and found him in a semiconscious state covered in blood on the floor of his bathroom there was a significant quantity of blood throughout the house. She called 000 and the police and paramedics attended. The victim was taken to Westmead Hospital where he remained sedated for three days." 1. The Judge recorded that the victim was treated for the following injuries: "(a) various facial lacerations requiring staples including a wound running from just beneath the left side of his nose through the entire height of his top lip; (b) full thickness lacerations to upper and lower lips; (c) missing two teeth; (d) scalp lacerations requiring sutures; (e) left eye, swollen, shut; (f) bruising to arms and knees; (g) fractured eye socket, nasal bone and maxillary arch; and (h) two fractured ribs with moderate hemothorax." 1. The Judge continued: "Included in the Crown bundle are photographs of the victim. The first of these depicts him on his back; he is, it appears, intubated; there is dried blood around his mouth; there is dried blood around his face, both eyes are swollen, his left eye is bruised; there are lacerations covered by some sort of dressing above the left eye in the right eye and toward the top of the right side of his forehead." 1. The Judge considered Mr Lloyd's extensive criminal record noting that his offences are predominantly but not solely property and dishonesty offences. His Honour also made some remarks about Mr Lloyd's drug and alcohol use: "When he gave evidence he told me that he accepted the history attributed to him in the psychologist report to which I am to come. He reiterated that he had little memory of the incident, he expressed remorse. He noted that the victim was his friend; he said it would not have happened had he not been intoxicated. He spoke of his experiences with drugs and his abuse of alcohol… … It would seem, when I look at his criminal history and compare that to the history attributed to him by the psychologist, that he has suffered the burden of drug use to which he has resorted by choice." 1. On 25 May 2018 non-prescribed drugs were detected in Mr Lloyd's urine and as a consequence he was restricted to 'box visits'. Subsequently non-prescribed drugs were also detected in custody on 9 December 2018 and 12 December 2018. 2. On 3 October 2018 in a document entitled 'Restoration Report' Kari recommended restoration of Bridget to the mother. It was noted in the Restoration Report that Bridget started to have unsupervised contact with her mother on 29 November 2017 and that this decision to change the contact regime was made jointly by Community Services and Kari. Attached to the report are what is described in the report as a "list of the dates of contact visits since 2014 and a brief overview of restoration contact visits (my emphasis) that have occurred since 29 November 2017." The Restoration Report also notes that Bridget had been having ongoing telephone contact with Mr Lloyd which was facilitated by the mother. 3. On 14 November 2018 the Secretary lodged an Application pursuant to s 90 for rescission or variation of a Care order, asking the Children's Court to grant leave for an application to rescind the order of 14 July 2015 of parental responsibility to the Minister and replace it with an order of parental responsibility to the mother, solely, until Bridget attains 18 years of age ('the s 90 Application'). 4. By the time the s 90 Application was lodged Bridget was having unsupervised contact with her mother every Wednesday from 3pm to 8pm and every weekend from Friday to Sunday and approximately half the school holidays. 5. In the affidavit in support of the Application the Community Services caseworker stated the following position: 1. Due to the incident leading to Mr Lloyd's current incarceration appearing to be isolated at the time, and due to the recognition that Mr Lloyd is significant to Bridget and Maisie, FaCS and Kari have not previously requested the mother to cease her relationship with Mr Lloyd; 2. Contact between Bridget and Mr Lloyd "does not appear to be unreasonable"; and 3. Given Mr Lloyd's recent drug use in custody "Community Services and/or Kari will need to hold further conversations with the mother." 1. On 9 December 2018 Mr Lloyd moved correctional facilities to the Compulsory Drug Treatment Correctional Centre located within the grounds of Parklea Correctional Centre. At the time of his admission a case note reports that; 'Mr Lloyd made admissions to recent long term bupe use whilst in custody." (Bupe is a reference to the drug buprenorphine.) The mother sought consent from Kari to take Bridget with her and Maisie's regular visits to Mr Lloyd at the Correctional Centre. 2. In her affidavit filed 15 January 2019 the mother attested that: * Bridget considers Mr Lloyd to be her father. * From the date of his arrest in May 2017 until December 2018, whilst Mr Lloyd was in custody Bridget had weekly telephone contact with Mr Lloyd. * She continues to be in a relationship with and have contact with Mr Lloyd whilst he is incarcerated. * She "almost always" takes Maisie to visit Mr Lloyd in gaol "so that she can continue to know and have a relationship with her father". * She acknowledges the assault on the neighbour was severe and she does not condone it but she stated it was out of character and that with the assistance of drug and alcohol counselling and violent offender programs in prison, Mr Lloyd will be able to be rehabilitated. * Because of the severity of the assault and because she wants to ensure her daughters are safe, she and Mr Lloyd have planned for him to reside with his mother when he is released in May 2020. She understands, she said, FaCS will need to complete a risk assessment before Mr Lloyd is able to live with her and the children. She stated that she will abide by the outcome and recommendations of that risk assessment. * She was surprised and disappointed to hear the Mr Lloyd tested positive for drugs in gaol. 1. On 30 January 2019 the s 90 Application was listed for hearing on the issue of whether leave should be granted to the Secretary to bring the Application. The Application for leave was opposed by the ILR. 2. At the hearing on 30 January 2019 it was clear that the mother and Mr Lloyd remained in a committed relationship and planned for that relationship to continue. I took the view that given the Court was considering giving leave to restore the child to her mother who was in that committed relationship that there was insufficient evidence in relation to him to properly consider the issues before the Court. (The sentencing judge's remarks had not been filed for the 30 January 2019 hearing.) An adjournment was sought and granted in order to remedy the lack of evidence in relation to Mr Lloyd and the matter was adjourned to 20 March 2019. 3. On 12 March 2019 the mother swore a further affidavit in which she stated: * She ended her relationship with Mr Lloyd on 30 January 2019 telling him she did so because of the offence in 2017 and his drug use in gaol was standing in the way of having Bridget returned to her care. She said that Mr Lloyd understood that the children come first and he accepted this. * She is committed to herself and Mr Lloyd both living their lives separately from now on. * She wishes to retain a supportive and amicable friendship with Mr Lloyd so that they can co-parent Maisie effectively. She will no longer take Maisie to gaol to visit Mr Lloyd but will facilitate SHINE and Mr Lloyd's family to do so. * She facilitates phone contact between Mr Lloyd and Maisie daily. Maisie is 2. 1. The Community Services' Caseworker, Ms Lam, swore an affidavit on 27 February 2019. In that affidavit Ms Lam made reference to the relationship between the mother and Mr Lloyd and that evidence is not entirely consistent with the evidence of the mother. 2. Ms Lam makes reference to a meeting with the Caseworker and Casework Manager from Kari, herself and the mother on 20 February 2019. In that meeting Ms Lam noted the mother appeared to be minimising Mr Lloyd's drug use. The notes of the meeting contain the following: "Ms Potter commented that all of this is basically about keeping herself and Bridget away from Mr Lloyd and that it was silly…. Ms Potter said that her concern is that not enough was put in documents about what he is doing now. He is not in jail; he is in a drug unit. 1. Ms Lam then refers to a call to Community Services' Manager Casework and herself made to the mother on 26 February 2019. The affidavit states that: "In relation to her views on Mr Lloyd, Ms Potter reiterated that the plan would be for Mr Lloyd to be released to the home of his mother "because the children come first" and "he does have stuff he has to do and accomplish before we can go back to life like it was before" (my emphasis) Ms Potter stated that "he needs to participate and finish the drug program" both while incarcerated and upon his integration back into the community, which includes meetings, urine drug tests and drug and alcohol counselling. Ms Potter advised that "I want him to participate fully not just do the program… I'm not basing it [i.e. the restoration] off him and I anymore… We have agreed to separate and address it [the relationship] in the future if Mr Lloyd has demonstrated rehabilitation/abstinence." (my emphasis) The Relevant Legal Framework 1. The present proceedings are brought under s 90 of the Act. This section empowers the Children's Court to rescind or vary previous care orders. An application under s 90, however, may only be made pursuant to a grant of leave: s 90(1). 2. The Application pursuant to s 90 of the Act was filed prior to the amendments introduced by the Children and Young Persons (Care and Protection) Amendment Act 2018. The transitional provisions provide that the amendment to s 90 does not apply to applications for leave that were pending before commencement. 3. The objects of the Act are set out in s 8. The Act also sets out a number of principles according to which it is required to be administered, both administratively and judicially. 4. The overriding principle is that the safety, welfare, and well-being of children are paramount, even to the exclusion of the interests of any parent: s 9(1). 5. Leave may only 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. 6. The relevant subsections of s 90 are 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) ... (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) ... (3A) ... (4) ... (5) ... (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. Has there been a significant change in a relevant circumstance? Community Services and the mother's submission 1. Community Services and the mother submitted that since the time of the initial Care Proceedings the following changes have been made by the mother and these changes give rise to a finding that there has been a significant change in a relevant circumstance and they include that Ms Potter: 1. has remained drug free for an extended period of time 2. has not been engaged in any criminal activity 3. has maintained appropriate accommodation 4. is not suffering from a diagnosable mental illness 5. has engaged with Kari and Community Services to monitor and assess her progress 6. has been raising and caring for Maisie Lloyd since her birth without any issues of concern being raised by Kari or Community Services or any Risk of Harm Reports 7. has maintained a significant relationship between herself and Bridget 8. has stated her ongoing commitment to supporting Bridget's education and development. The Independent Legal Representative's submission 1. The ILR does not call into question the evidence that the mother has remained drug free since 2015 and that she has been able to maintain hygienic accommodation. 2. The ILR submits that there is not a significant change of circumstances as the reason the Court made a finding of no realistic possibility of restoration in the care proceedings included reasons that pertain to both Ms Potter and Mr Lloyd. Yet Mr Lloyd still has drug addiction issues, has been engaged in criminal offending and still suffers from unaddressed mental health issues. 3. The ILR rejects the submission of Community Services and the mother that Maisie is being raised without any issues of concern. In 2014 Mr Lloyd was told to address his drug and alcohol issues through rehabilitation as he was known to be a long term drug user. He failed to do so. Prior to Maisie's birth, the Assessments noted that Mr Lloyd was still using drugs and yet he was allowed to live in the home with Ms Potter, a recovering drug addict herself. This ongoing drug use contributed to the vicious and unexplained assault on his friend and clearly therefore Maisie was in a situation of risk. 4. The ILR submits that the Court would make a finding that there was no significant change in a relevant circumstance as the mother's ongoing commitment to the relationship with Mr Lloyd proves she remains unable to prioritise Bridget's needs over the needs of Mr Lloyd. Conclusion as to significant change in any relevant circumstance 1. The concepts of "relevant circumstances" and "significant change" were discussed by Justice Slattery in his decision In the matter of Campbell [2011] NSWSC 761. 2. As to what constitutes a "relevant circumstance" Slattery J said at [42]: "The range of relevant circumstances will depend upon the issues presented for the Court's decision. They may not necessarily be limited to a 'snapshot' of events occurring between the time of the original order and the date the leave application is heard." 1. As to what constitutes a "significant" change in a relevant circumstance, Slattery J referred to S v Department of Community Services (DoCS) [2002] NSWCA 151 where the Court of Appeal held that the change must be "of sufficient significance to justify the consideration [by the court] of an application for rescission or variation of the order" and that a significant change in relevant circumstances: [42] "Requires a comparison between the situation at the time when the applicant was heard and the fact underlying the decision when the order was made or last varied." 1. In making that comparison the Court is not restricted to the time of the order being made but may look at a range of time leading up to that order being made in consideration of whether a significant change in relevant circumstances can be established. 2. In Re M (No 6) [2016] NSWSC 170 Robb J at [43]: "An applicant must identify and establish one or more relevant circumstances that have changed, and then show that the change is, or changes are, significant. 1. I accept the ILR's submission that the reasons Bridget was made subject to a Care order of parental responsibility to the Minister until 18 years pertains to both the mother and Mr Lloyd and further that Mr Lloyd still has drug addiction issues and has continued his criminal offending and that offending has escalated in seriousness. 2. Section 90(2) does not require an applicant to satisfy the Court that there has been a change in all the significant or relevant circumstances leading to Bridget's removal, just any one of them. I accept that the mother is now drug free and has been for a considerable period. She has had no further criminal offending and has maintained stable and appropriate housing. These issues were among the main contributing factors to Bridget's removal and for that reason are both relevant and significant and thus the provisions of s 90(2) are satisfied. The Section 90(2A) Factors 1. Slattery J In the matter of Campbell also made it clear that the Court's discretion to grant leave is not only limited by s 90(2), but also by the requirement to take into account the s 90(2A) list of considerations. Therefore, establishing a significant change in a relevant circumstance under s 90(2) is a necessary, but not a sufficient, condition for the granting of leave. I therefore now turn to the s 90(2A) factors. (a) The Nature of the Application 1. The Application seeks to have the order rescinded and Bridget placed in the sole parental responsibility of her mother until she turns 18. (b) The Age of the child 1. Bridget has just turned 9 years old. (c) The Length of time in care 1. Bridget has been in the physical care of her current carers since September 2014, approximately four years and 7 months. (d) The Plans for the child 1. Community Services and the mother propose that Bridget will return to live with her mother, her grandmother and her sister. 2. The mother's position on the first day of the hearing was that she and Mr Lloyd remained a couple whose plan was to live together and co-parent Bridget on his release from prison if Community Services assessed that it was safe. In the meantime the mother would not allow any contact between Bridget and Mr Lloyd unless authorised by Community Services. 3. By the second day of the hearing the mother's stated position had changed. Her evidence was that she was no longer in a relationship with Mr Lloyd as the relationship was impeding the restoration process and that both she and Mr Lloyd agreed to separate in order to put Bridget's interests first. 4. Of course, if the Court makes the order being sought by Community Services, that is sole parental responsibility of Bridget to Ms Potter, then the decision whether Mr Lloyd lives in her home with Bridget on his release (or indeed whether any other person or partner lives with her and Bridget) will be her decision alone. 5. If the Court does not grant leave then the plan is for Bridget to remain in her current placement and contact between Bridget and her mother will be reduced. (e) Whether Community Services has an arguable case Community Services submissions regarding arguable case 1. Community Services accepts, after considering the sentencing judgment, that Mr Lloyd perpetrated a horrific assault. Community Services acknowledge that an assessment of the risk Mr Lloyd posed should have formed part of an assessment of the viability of restoration before the restoration was proceeded with. It is conceded by Community Services that Mr Lloyd represents a risk and needs to be properly and fully assessed if he is to be considered as a person forming part of any household with Bridget. 2. Community Services also concedes that there are issues of the level and degree of the mother's insight but that insight is something that is usually found over a period of time and is not discovered overnight. The mother has clearly been on a journey as a result of these proceedings and the provision of information which has required her to consider and reconsider the nature of the relationship and how she perceives Mr Lloyd. Community Services submit that the fact that the mother may not be at the end of this journey does not mean that she doesn't have insight but rather it is growing and developing. Community Services submits that the critical issue is what she says now and whether it would allow the Court to proceed to a reconsideration of the case and that is all that is sought. 3. Community Services argue that if the mother maintained the position she did on the first day of this leave application, 30 January 2019, the proposition that she lacked insight and there was therefore no arguable case would have had force. The evidence is however, she has moved forward. Community Services accepted the mother may not have developed the degree of insight and/or she has not acknowledged the degree of risk to a level that might satisfy the Court that there should be restoration, but the move is there, it is a significant shift and that shift is the arguable case. 4. It is conceded by the Secretary that the actions of Kari, and to the extent that the Secretary allowed it to occur, Bridget has been placed in a position where she is spending a great deal of time with her mother and has been told she will be returning to live with her mother. This, in combination with the other evidence would allow the Court to give leave to allow the Court to further consider the matter. Ms Potter's submission 1. The mother submits that she has addressed all the issues that led to Bridget's removal, she is successfully caring for Maisie and she has shown by separating from Mr Lloyd that she has insight and is putting Bridget's needs first and for these reasons she has an arguable case. The Independent Legal Representative's submissions 1. The ILR submits that the Court can have no confidence that the mother has separated from Mr Lloyd and her failure to separate indicates she lacks insight into the risk that Mr Lloyd poses as evidenced by: * Her unwillingness to separate from Mr Lloyd. Although she states she separated on 30 January 2019 she still has daily telephone contact with Mr Lloyd. Her explanation that it is to facilitate Mr Lloyd's contact with their daughter is implausible given their daughter is only 2 years old and it is more likely that the contact is to serve the adults' interests. * In February 2019 Ms Potter referred to the idea of separating the girls from Mr Lloyd as "silly"; she continued to minimise his drug use; considers the attack he committed as "out of character"; and stated she was waiting "before we can go back to life like it was before". * Ms Potter has on an ongoing basis failed to consider Mr Lloyd a risk despite: * Mr Lloyd's continued drug use both before and after his imprisonment; and * Being the one who found the victim of Mr Lloyd's assault in a semi-conscious state on the floor with significant amount of blood throughout the house and despite the fact that she was so worried when she found the victim that she locked them both in the house to ensure he did not come back and despite the fact that the victim was their friend they invited to their party and he is now left with long term injuries and despite being present at the sentencing hearing in the District Court when the Judge set out the horrific injuries the victim suffered. * On the second day of the hearing the mother maintained the same submissions she made on the first day that because of the limited access Mr Lloyd has to Bridget, pursuant to the agreement with Community Services signed by the mother preventing contact, the mother's proposal for Mr Lloyd to reside with his mother upon his release and not return to her home without a positive risk assessment, means orders restoring Bridget to the mother's care would not pose an unacceptable risk. * Although the mother states she has started to see a psychologist to look at these issues she has only had one appointment. 1. The ILR submits further that the Court can have no confidence in the actions taken by Community Services. In their own affidavit it is admitted that when the risk assessments were undertaken in relation to Maisie, Community Services were aware Mr Lloyd was using cannabis. Community Services knew the context namely that Mr Lloyd has a long history of drug use and a significant number of convictions relating to drug use and that Ms Potter also had long term drug use. The plans were for Mr Lloyd to remain drug free, but he did not and Community Services knew he did not. Despite his history of drug use and his ongoing drug use he and the mother were allowed to maintain responsibility for Maisie and no Application for Maisie was brought. 2. The ILR referred to the sentencing judgment and the reference to the fact that Mr Lloyd has attended multiple detox programmes and other drug recovery programmes and that the Judge considered he must be circumspect in relation to his chance of future success of remaining drug free. The ILR argues that there is minimal chance Mr Lloyd will be able to maintain abstinence on the outside as he has not even been able to maintain abstinence whilst in custody. The ILR argues that Ms Potter does not understand this nor does she consider him to be a risk and she is maintaining daily contact to build the relationship between Maisie and Mr Lloyd which may lead to difficulties when he is released. There is no application brought for Maisie and therefore Ms Wells nor the Court can do anything to protect Maisie in the mother's care. Of course when Mr Lloyd leaves custody there is nothing legally to stop him from going to live with Maisie or taking Maisie from the mother's care if he chooses to do so. The Section 90(6) factors 1. Slattery J In the matter of Campbell found that an "arguable case" does not relate to the Application for leave, but that an arguable case must be shown for the rescission or variation sought taking into account the matters in s 90(6). Therefore, the matters in s 90(6) must be taken into account in determining whether the applicant for leave has an arguable case. 2. Slattery J agreed with the then President of the Children's Court, Judge Marien, that the interpretation of "arguable case", as expressed in Dempster v National Companies and Securities Commission (1993) 9 WAR 215, should be adopted; namely, that an arguable case is a case that is "reasonably capable of being argued" and has "some prospect of success" or "some chance of success". (a) The age of the child 1. Bridget is 9 years old. (b) Wishes of the child and the weight to be given to those wishes 1. Bridget enjoys visits with her mother and is reported to want to spend more time with her. She is also reported to be happy with her carers. 2. The ILR argues that little weight can be attributed to her wishes given her delay and her lack of understanding of the risk issues. The ILR notes that Bridget believes that Mr Lloyd is her father. 3. The report from the Kari psychologist included in the affidavit of the Caseworker sworn 1 March 2019 includes: "Bridget's expectations are that she will be returning to the permanent care of her mother and she expressed excitement and enthusiasm about this plan. Bridget appears to be experiencing significant emotional distress in relation to her repeated reunions and subsequent separations from her biological mother…" 1. The ILR argues, with some force, that Bridget's distress is caused solely by the actions of Kari and Community Services by putting in place a contact arrangement that should never have been put in place between this child and her mother. The Court cannot restore Bridget to her mother simply because this is what she expects will happen. She is a little girl who wasn't there to witness the violent assault, she hasn't read nor is she capable of understanding the Court documents, or understand the risk Mr Lloyd poses to her and the weight that can be afforded her wish to live with her mother is minimal. Bridget has not been protected by the actions taken by Community Services to date. Even during the course of these proceedings the contact was not reduced and there was no psychological support put in place to assist Bridget to understand what was happening and why. (c) The length of time the child has been in the care of her current carers 1. Bridget has remained in the same placement since she was assumed into care in September 2014, so 4 years and 7 months. (d) Strength of the child's attachments to her birth parents and present caregivers 1. There is evidence to suggest that Bridget is attached to her mother and to her current carers. The nature and relative strength of those attachments has not been assessed. (e) Capacity of birth parents to provide an adequate standard of care 1. The evidence filed and accepted is that the mother no longer uses drugs or is involved in criminal activity and this change has been sustained over a considerable period. The mother has maintained suitable housing and she appears to take good physical care of Maisie. She has been committed to contact with Bridget and has worked positively with services. 2. The mother however, despite knowing of Mr Lloyd's continued drug use and violence had decided to remain in a committed relationship with him until, on her evidence on 30 January 2019. This decision to maintain that relationship raises a significant issue about her understanding of risk issues and her ability to protect Bridget. This concern does not just apply to her relationship with Mr Lloyd, but her ability to understand and assess the risk that other partners or friends she may have might pose to Bridget and thus her ability to protect her from risk. (f) Risk of psychological harm if the present arrangements are varied 1. It is not in dispute in these proceedings that Bridget is in a very good placement where all her needs are met and she has a positive and loving relationship with her carers and is integrated into their family. 2. It is likely that, whatever decision the Court makes, given the restoration process is well underway and has been for a significant period of time that Bridget will suffer some psychological harm. Conclusion as to whether the Secretary has an arguable case 1. On the evidence filed the Court would conclude that Mr Lloyd presents an unacceptable risk to Bridget. The Court could also be comfortably satisfied that the mother is drug free; maintains a safe home; has worked well with services and has been committed to her contact with Bridget. The issues that remain are whether the mother has sufficient insight into risk to be able to keep Bridget safe from Mr Lloyd and from others and whether a restoration of Bridget to her mother, removing her from her long term placement, are in her best interests. 2. The mother's evidence as contained in her most recent affidavit is that she has permanently separated from Mr Lloyd as of 30 January 2019. The reliability of that evidence is in question because: * The decision is recent and there has been little time to test her resolve to maintain the decision. * Despite the length of time the mother has known of Mr Lloyd's violent attack and his ongoing drug use she chose to maintain the relationship. * After her assertion in her affidavit that she and Mr Lloyd were permanently separated she has made contradictory statements to Community Services caseworkers. * She continues to have daily telephone contact with Mr Lloyd. 1. There is no evidence filed as to why the mother decided on 30 January 2019 to permanently separate after years of maintaining the relationship save that it was holding up restoration and she was putting her children's needs first. Community Services submitted that the reason was developing insight. This of course is one possibility. Another possibility is that the mother formed the view that the Court would not grant leave unless she said she would permanently separate. The evidence as currently filed does not assist in the determination of the mother's level of insight. 2. In the matter of Campbell at [57] Slattery J states: "… s 83(1) makes clear at what time of the "realistic possibility" of restoration should be assessed. When the application for rescission or variation of a care order is before the Court, it is at the time the court must assess "whether there is a realistic possibility" [emphasis added]. It must not at the time of the rescission or variation application be merely a future possibility. It must at the time be a realistic possibility. But when leave to bring such an application is sought under s90(1)… The whole case for rescission or variation is not being presented now. On the leave application, the court can take into account the fact that the applicant's case is on a course which is likely to be supplemented with further evidence by the time the case gets to a hearing, once leave has been granted. I am mindful in this application that KC and SC have not been cross-examined." 1. A significant issue in this case is whether the mother has, as she says she has, permanently and reliably separated from Mr Lloyd and whether she has the insight and ability to protect Bridget in the long term, not just from Mr Lloyd but from other potential sources of harm. 2. The mother's evidence is that she has separated and she can put Bridget's interest first. Her level of insight will be a highly relevant consideration. This evidence is at this time incomplete and untested by cross-examination. 3. The evidence on which the Court may need to decide whether Bridget's best interest lie with her remaining in her current placement or returning to her mother is also incomplete. 4. I accept however, that the case for rescission and variation of the order is on a course which will be supplemented by further evidence. I accept too that a highly relevant issue of the case will be the mother's insight, commitment, reliability and future capacity to protect. These issues will need to be tested by cross-examination. If the mother's evidence is accepted there is a case that is "reasonably capable of being argued" and has "some prospect of success" or "some chance of success". (f) Matters identified by a s 82 report or a report from the Children's Guardian 1. There are no reports. Should leave be granted to bring a Section 90 application? 1. There has been a significant change in a relevant circumstance. The mother has filed evidence that she has addressed all the issues that led to Bridget's removal. She has filed evidence that she has permanently separated from Mr Lloyd and has and will continue to put Bridget's needs first. Bridget has a good relationship with her mother and a significant amount of unsupervised contact. Although the mother's evidence will need to be tested and evidence focussing on the effect of Bridget of changes will need to be obtained, I am satisfied that there is sufficient evidence for the Court to consider Bridget's case again and therefore leave should be given for the s 90 Application to be brought. Order 1. Leave is granted to Community Services to bring the Application for rescission or variation of the order of 14 July 2015. Concluding Remarks 1. In the Restoration Report of Kelly Connors, Kari Manager Casework, dated 3 October 2018 she states that "the duration of this potential restoration has been lengthy which has been unsettling for Bridget." She also referred to "restoration contact visits" which had been in place since November 2017. Despite this on 30 January 2019 at the hearing Community Services denied that any steps had been taken by Kari or Community Services towards a restoration including denying that the daily unsupervised contact was not a move towards restoration. 2. However, on 20 March 2019 Community Services conceded that there was in fact a restoration underway before the application was made to the Children's Court and that this should not have occurred. Community Services further conceded that the restoration plan that had been put into effect was undertaken without a proper analysis and consideration. 3. The Secretary conceded that: * A restoration plan by the increment of contact to the substantial level it had reached was undertaken by Kari/the Minister prior to any application to the Court, without the leave of the Court or the approval of the Court. Kari, with either the knowledge and/or acquiescence of Community Services increased contact from supervised monthly contact to set periods of overnight contact and for significant blocks of time during the school holidays. Community Services accepts that this substantial shift in contact represented a movement towards restoration and the increased contact was based on a decision to restore. * In effect a restoration plan was underway without an application to the Children's Court. The movement in relation to contact was premature and pre-judged a determination by the Court and should not have occurred. Community Services noted that an increment to contact on a modest basis and a movement from supervised to unsupervised over the period are within the realms and discretion of the Minister where permanency planning has been found to be with a child not permanently residing with his or her parent. The contact provided in this case fell outside the normal ambits of the ebb and flow of contact reflecting a variety of issues including the stability of the placement, the nature of the relationship of the child with the mother and the level of risk that the mother may present. * There was no proper analysis and consideration of the risk issues that Mr Lloyd posed and that it was only as a result of the issues raised in Court on 30 January 2019 that further investigations were undertaken that a proper appreciation of the nature and extent of that risk was gained both by the Secretary and the mother. 1. The guiding principle of the Act is contained in s 9(1): "… 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." 1. Before a decision is made to recommend restoration when a child is in a safe, secure and stable long term placement, there must be a comprehensive assessment undertaken. The Assessment must take account of relevant history, must include gathering of objective evidence and may even require input from experts. It must focus on the best interests of the child and not solely on whether the parent has made progress in addressing the issues that led to the child's removal. 2. If, after the comprehensive assessment a decision is made to recommend restoration then a prompt application should be made to the Children's Court. No steps should be taken towards restoration that could directly impact the child or the carers. Neither should any assurances or promises be made to the parents or to the child. 3. Although today leave has been granted to Community Services to bring an Application for rescission or variation of the care order for Bridget, the ultimate decision as to whether Bridget will be restored to her mother's care remains unknown. What is known however is that this little girl has been told she will be going to live with her mother and she does not know why that is yet to happen and it causes her ongoing distress. The mother too had been told Bridget was being restored to her care. If the Court ultimately decides restoration is not in Bridget's best interests then I expect that both Bridget and her mother will both be significantly distressed and confused. There is very little evidence filed as to what the carers have been told. There can be no doubt however, that they too are adversely affected by the ongoing uncertainty of a restoration process that was begun in November 2017, one year before an application was made to the Children's Court. 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 2019