Supreme Court New South Wales

• Medium Neutral Citation: In the matter of Campbell [2011] NSWSC 761
• Hearing dates: 18 March 2011
• Decision date: 10 June 2011
• Jurisdiction: Equity Division
• Before: Slattery J

Decision

Application for leave to vary or rescind the existing care order of 12 December 2008 refused.

• Catchwords: Application under Children and Young Persons (Care and Protection) Act 1998 ("the Care Act") for leave to vary or rescind existing care order made on 12 December 2008 - whether since the care order was made "there has been a significant change in any relevant circumstances": Care Act, s 90(2) - whether the plaintiff's claim that four matters are "relevant circumstances" that constitute "significant change" is established in this case - HELD - none of the matters the plaintiff identifies is a significant change in relevant circumstances - discretion to grant leave should not be exercised.
• Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW); Adoption Act 2000 (NSW)
• Cases Cited: Bieganski, In the Marriage of; sub nom B, In Marriage of (1993) FLC 92-357; D v Director-General Department of Community Services (2005) 34 Fam LR 445; Department of Community Services, 12/12/2008, NSWDC, Unreported, Johnstone DCJ; Director-General, Dept of Community; Services v D & Ors (2007) 37 Fam LR 595; In the matter of Jasper [2006] CLN 2; Re Kurt, 20/9/10, Children's Court of NSW, unreported, Marien DCJ; In the matter of Nerida [2002] CLN 7; In the matter of OM, ZM, BM and PM [2002] CLN 4; Infant, K & the Adoption of Children Act, Re [1973] 1 NSWLR 311; M v M (1988) 166 CLR 69; Mace v Murray (1955) 92 CLR 370; Re Anna [2010] NSWSC 1489; Re J, K and C [2002] 2 CLN 1; Re Saunders and Morgan & Anor v; Re Tracey [2011] NSWCA 43; Shercliff & Anor v Engadine Acceptance Corp Pty Ltd [1978] 1 NSWLR 729; S v Department of Community Services [2002] NSWCA 151; Wilson v Department of Human Services
• Category: Principal judgment
• Parties: Plaintiff- the mother, "KC"; First defendant- Minister of Community Services; Second defendant- Director-General, Department of Human Services; Third defendant- the father, "SC"; Fourth defendant- Ms Hall, Independent Legal Representative for the child
• Representation: Plaintiff and Third defendant- P Braine; First defendant- W Hunt; Fourth defendant- M Neville; Second defendant- Julia Detheridge, NSW Crown Solicitor's Office; Vicki Hall, V.L. Hall Lawyer
• File Number(s): 2010/334510
• Publication restriction: Yes.

Judgment

1 Ms KC and Mr SC are husband and wife. They are the parents of Campbell, who was born in May 2005. Campbell was removed from their care in November 2006. Now aged 6, Campbell is under the parental responsibility of the Minister for Community Services ("the Minister") and has been placed with foster parents [names not published]. KC applies to this Court for leave to commence a legal process to restore Campbell back to her and SC's care. The Minister, the Director-General of the Department of Human Services ("the Director-General"), and Campbell's Independent Legal Representative (the ILR) all oppose KC's application for leave.

2 Children and Young Persons (Care and Protection) Act 1998 (" Care Act ") s 90 allows an application to rescind or vary an existing care order to be made "with the leave of the Children's Court". KC's Amended Summons dated 21 October 2010 seeks that leave. On 12 December 2008 the District Court (Johnstone DCJ) made the current care order for Campbell, ordering parental responsibility for him to be allocated to the Minister under Care Act s 79 (1)(b). Johnstone DCJ based this order on: his finding that Campbell's parents were not likely to be able to satisfactorily address the issues that led to Campbell's removal from their care ( Care Act s83 (1)(b) and (2)); and his conclusion (agreeing with the Director-General's assessment) that there was no realistic possibility of Campbell being restored to his parents, Care Act s 83 (1) & (5).

3 SC is not a co-plaintiff to the Amended Summons with KC. But he is joined as the third defendant in the proceedings. He supports KC's application for leave. The Minister, the Director-General and Campbell's ILR are respectively the first, second and fourth defendants.

4 The Supreme Court's jurisdiction in this matter arises from another leave application KC made to the Children's Court last year. In June 2010 KC sought the leave of the Children's Court under Care Act s90 to apply to rescind or vary the orders made by Johnstone DCJ. The President of the Children's Court, Marien DCJ, heard her application on 13 September 2010, which was opposed by the Director-General and Campbell's ILR. Marien DCJ refused leave on 20 September 2010. Appeals from the Children's Court are usually brought in the District Court: Care Act , s 91. But when Marien DCJ, constitutes the Children's Court, any appeal from the "Presidential Children's Court" must be brought to this Court, as KC has done: Children's Court Act 1987 (NSW) s 22A and Children's Court Regulation r5.

5 The point at issue in this application arises from Care Act s 90 (2), which confines the Court's discretion to grant leave under Care Act s 90 (1), and which provides that the 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". The point at issue is whether any of four matters KC identified at the hearing represent a "significant change" in "relevant circumstances" since Johnstone DCJ last made orders in respect of Campbell on 12 December 2010.

6 The four matters KC claims constitute "a significant change in any relevant circumstances" since the care order was made are: (1) the parents' apparently satisfactory care for one of Campbell's high needs siblings, Barry; (2) Campbell's prospective adoption by his current foster carers; (3) a change in Campbell's foster placement in May 2009; and (4) the addressing of the parenting deficits that Johnstone DCJ found existed in 2008. But first it is necessary to understand more background to the application.

7 Counsel and solicitors for the parties have assisted the Court. Mr P Braine of counsel appeared in the proceedings for KC, Mr W Hunt of counsel for the Minister and the Director-General, and Ms N Neville of counsel for Campbell's ILR.

The Children's Removal in November 2006

8 Campbell and six other children were removed from KC and SC's care in November 2006. Two of these were KC's children, by a former relationship, namely Barry and Abby. The other four children were SC's children by his former wife.

9 At 6 years of age Campbell is the youngest of all these children. KC's eldest child Barry was born in March 1995 and is now aged 16. Barry is profoundly disabled and has special care needs. His disabilities and needs are described later in these reasons. KC's second child Abby was born in May 1999 and is now aged 12. SC's children are from oldest to youngest Benjamin, Nicholas, Kathleen and Julian. Thus all the children are related by blood to either SC or KC. But Campbell is the only child of them both.

10 KC and SC lived together with these seven children following SC's separation from his former wife. In 2006 Benjamin made complaints of serious physical abuse against KC and SC. Following a Joint Investigative Response Team (JIRT) inquiry into these complaints the children were all removed from the parents' care in November 2006.

11 After the children's removal, Local Court criminal proceedings were brought against KC and SC. These criminal charges were later discontinued when Benjamin withdrew his allegations against them.

12 Care proceedings were also commenced in November 2006 in the Children's Court under the Care Act in relation to the seven children. The Children's Court dealt with all seven children. In November 2007 it made long term orders giving parental responsibility for SC's four children to the Minister until the age of 18. SC's four children have been placed with foster carers and are not the subject of any of the proceedings that KC and SC brought between 2007 and 2011.

13 Barry, Abby and Campbell's care arrangements were more complicated. First, Barry was restored to KC after only two months in temporary care following his removal. In November 2007 the Children's Court made a care order under Care Act s 60 allocating parental responsibility for Barry to the Minister in respect of education and medical treatment, and parental responsibility in respect of his residence and day-to-day care to KC, until he reaches 18 years of age. The Children's Court also allocated parental responsibility for Abby and Campbell to the Minister until they reached 18 years of age. Immediately after their removal Abby and Campbell were placed together with the same foster carers.

Events from 2007 to 2011

14 In December 2007, KC and SC both filed appeals under Care Act s 91 in the District Court against the Children's Court's orders seeking the restoration of both Abby and Campbell. This was the appeal that Johnstone DCJ heard in November 2008 and on which he gave judgment and made orders on 12 December 2008. Such appeals are "by way of a new hearing" on which "fresh evidence, or evidence in addition to or in substitution for the evidence on which the order was made may be given": Care Act s 91(2). On such appeals the District Court has "all the functions and discretions" that the Children's Court has under Care Act , Chapter 6 (s 91(4)), and its decision is taken to be a decision of the Children's Court (s 91(6)).

15 The hearing before Johnstone DCJ took 12 days. KC and SC were extensively cross-examined and medical and other expert evidence was called. The Minister and the Director-General both opposed the parents' application on this appeal. So did the children's representatives. In the course of those proceedings, KC withdrew her application to restore Abby, persisting only in the application with respect to Campbell.

16 The central issue before Johnstone DCJ, sitting as the Children's Court, was whether he should accept the assessment of the Director-General that there was "no realistic possibility of [Campbell] being restored to his parents": Care Act s 83 (1) & (5). If the Children's Court does not accept the Director General's assessment in this matter it may direct the preparation of a different permanency plan for the child under Care Act s 83(6). This plan could then have included steps towards Campbell's restoration to his parents. KC and SC argued that there was a realistic possibility of restoration, based on evidence of Campbell's then circumstances, and evidence that they were likely to be able to satisfactorily address the issues that led to his removal from their care.

17 On 12 December 2008 Johnstone DCJ decided the appeal, which is reported under the name Re Saunders and Morgan & Anor v Department of Community Services, 12/12/2008, NSWDC, Unreported, Johnstone DCJ. His Honour found that the parents were not likely to be able to satisfactorily address the issues that led to Abby and Campbell's removal from their care and concluded that there was no realistic possibility of either child being restored to her or his parents.

18 The parents' case before Johnstone DCJ generated many issues. The parents submitted that they had made progress and improved their parenting skills, had gained insight into their past behaviour and could now take responsibility for it. They claimed that they had adequately cared for Barry since he was returned to their care, had a positive working relationship with the Department, had undertaken parenting courses, had stabilised their relationship and recently married, and had accepted their role in the abuse of their children (at [56]). The Director General contested the parents' assertion that they had learned from their parenting courses and had accepted their role in the abuse of their children.

19 The detail of Johnstone DCJ's findings is important to this Court's reasoning on KC's present application. In order to determine whether there has been a "significant change in any relevant circumstances" within Care Act s 90(2) since the care order sought to be rescinded was made or last varied, the Court must ascertain the circumstances at the time the order was made. In this case this involves examining Johnstone DCJ's findings as to the level of abuse that the parents caused to the children and the level of insight that they then had that what they were doing to the children was harmful to them.

20 His Honour's findings on this subject were clear and serious. He found that there was a pervasive environment of abuse in the household to which all the children were subjected and that Abby, in particular had suffered serious emotional disturbance as a result. He made the following findings about this environment:-

"18. Notwithstanding that Benjamin recanted, in the course of cross-examination in the Local Court in 2007, as to certain of his allegations of overt physical assaults on the part of the parents, there can be no doubt as to the pervasive environment of abuse in the KC/SC household to which all 7 children were subjected by the parents in the period leading up to their removal, as a result of which they were all traumatised (apart, perhaps, from Campbell, due to his age at that time). There is direct objective evidence of both physical and psychological abuse during that period. There is an abundance of circumstantial evidence. There are substantial concessions by both parents of conduct amounting to abuse. And there are inferences reasonably to be drawn as to the prevalence of abuse from subsequent revelations and emerging indicators, most especially the post removal behaviour of Abby and the evidence concerning her serious emotional state and its likely cause.

19. The environment of abuse was characterised by an excessively rigid disciplinary regime, involving shouting, yelling and unsparing physical punishment including face-slapping, kicking, biting and spanking on the bare bottom; callous and cruel force-feeding; long and uncompromising periods of 'time-out'; and episodes of public humiliation, including sending children to school in pyjamas. There is evidence of food-hoarding, forcing children to eat vomit, and hair-pulling."

21 The evidence of a psychologist, Dr Gary Banks supported the parents' case. But Johnstone DCJ did not accept his evidence. Dr Banks recommended that Campbell and Abby be restored to the parents. However Dr Banks had been given incomplete information to form this opinion and changed his view as to restoration in the course of the hearing. Johnstone DCJ found, at [39] that ultimately Dr Banks, "was at a loss to provide anything more constructive than a series of questions for the Court to consider". Thus the professional evidence that might have supported the return of Campbell and Abby to the parents fell away before Johnstone DCJ.

22 Instead Johnstone DCJ accepted that the most telling evidence of the level of abuse was that of the psychologist, Dr Susan Pulman who had assessed the children on behalf of the Children's Court. Dr Pulman made detailed assessments of what had occurred in the home. Johnstone DCJ accepted those assessments as his findings. Johnstone DCJ set out her evidence, which told the story of the household through statements from the children. He based his reasoning upon her evidence in the following way:

21. Perhaps the most telling evidence of the level of abuse was that of Dr Susan Pulman in her report prepared in July 2007. Dr Pulman is a psychologist who was requested by the Children's Court Clinic to provide assessments in respect of the children and the potential impact of restoration to the care of the parents. She also gave evidence in these proceedings, and I found her a compelling witness. Her experience and qualifications are most impressive. She assessed both parents and each of the children. She interviewed Abby on 9 July 2007, and interviewed each of the [SC's] children, individually, on 16 July 2007. The following extracts are from her report. The detail and consistency between the accounts of the various children are quite telling:

'Benjamin was asked about his experience living with his father SC and his stepmother KC and whether he understood the reasons for his removal. He described KC as "mean, she's abusing, she blames someone, she yell's a lot, she would close the blinds when she was going to bash me so know one would see". He continued "she would yell at you for everything, not getting dressed, not listening, not eating breakfast. I didn't want to go home after school, I knew she would bash me. I asked the teacher if I could go home with her.

Benjamin described some particularly disturbing episodes of abuse... "She would hit us with the remote control, she'd hit us with the telephone, one time she made me wear a nappy and stand in the corner for most of the day ... I sometimes had to stand in the corner from after dinner at 6.00 pm until midnight, my legs were so sore, I'd ask for a drink and she wouldn't give me one and she wouldn't let me go to the toilet ... sometimes when people come to the house we were still standing in the corner but she doesn't hit us when the carers are there."

He described how he was forced to eat weetbix for breakfast, lunch and dinner for three weeks. "She would make me eat the first bowl of weetbix, then she would give me a second bowl with water or milk and make me eat it, sometimes I would hide the weetbix anywhere so I didn't have to eat it, I would end up vomiting and she would made me eat it, I would have to go to school wearing my pyjamas with vomit on them". He stated "my throat was so dry I couldn't swallow the weetbix and she put me in the shower and sprayed water down my mouth - with the tap on full ... another day they covered my nose and mouth to make me eat it, they'd force me to have these smart tablets, you know the ones you can get now that are supposed to make you smart, the pink tablets. They made me have them and I'd vomit them up".

One day I was walking to school with vomit on my pyjamas and another mother saw and took me to school. She asked me what's been happening and she told Liz the Deputy Principal and they called DoCS... Benjamin stated "KC would sometimes say to SC "leave and take your kids". "She lies to people. Even Abby hates her mother. She would come up to me after and say "I feel sorry for you Benjamin". One day SC was sitting on my legs and he was going to make me eat the dry toast, he pushed my head back so hard that it broke the glass."

"During interview, Nicholas described his experience living with KC and SC. He stated "I didn't like KC, she used to hurt us, she told SC to hit us, we'd get hit with a cricket bat. Once she made me take my clothes off, we were going swimming and I had to go and get some clothes, because I didn't get my clothes quick enough I had to stand there at the front door with no clothes on ... she yell's at everyone". "She'd pull my ears and her fingernails would dig in, she'd hit me on the head with her hands, she walk past and hit my head and my head would hit the wall ... she tricked me, she said we were only going to stay there for one day and we ended up living there". "She'd make us stand in the corner, we'd be hours in the corner. She never helped me with my homework, she only thinks about Barry, Abby and Campbell. Even Abby hates her mum, she likes us more, KC swears at Abby. KC wouldn't give us any cuddles, Dad would if she wasn't there".

Nicholas stated that "SC is frightened of KC. One day SC was on the lounge, he had a headache and she threw a book at him, she throws things at him. Dad doesn't like her any more. She used to tell Abby to get the cricket bat, Abby doesn't want to hurt Benjamin, we loved Abby and Campbell, but if Abby didn't listen she would get into trouble. KC told SC to hit Benjamin on the face. She told him to eat his own vomit".

"KC tries to send us away. She says to people she knows "do you want four kids?" We always get hungry living there. She would say "no, you don't get anymore".

"Kathleen stated that "it was not so good living with KC and SC, it was bad living with SC, I don't want to talk about her ... I used to get hit by KC and SC, I would get hit with the cricket bat, on my legs and arms and on my nose once, on the back of the legs, I would also get smacked on the bottom, we would get put in the corner, we'd get out heads bashed into the wall, if we moved we'd get hit ... KC was telling SC to hit us, she would say go and feed your f.... children, Nicholas would go to bed hungry, sometimes he wasn't allowed breakfast, lunch or dinner, once she wouldn't allow Julian to drink anything and she thought he was drinking water out of the toilet so she dragged him by the ears, she swears at us, she used the f word. She wouldn't help us with our homework." She continued "I couldn't sleep at night because I was having bad dreams about Benjamin getting hit. KC would tell us to go to school in our pyjamas. The school rang up and said get our clothes and she came up to the school and threw them at me". She further stated "KC would sometimes hit Barry on the hand and pick his nose. When the carers were there SC and KC wouldn't hit us. They kept the cricket bat in the laundry. She'd made us eat our own vomit. She would be shouting every day."

"Julian was very pleasant, friendly and chatty during the interview. He started talking about what it was like living with KC and SC and stated "it was bad, I got sent to the corner, I don't like KC. I used to get smacked by KC, I used to get hit with the bat. SC covered Benjamin's mouth and he nearly died. They were mean and they said to Benjamin eat your vomit, they let me have porridge but they made Benjamin eat Weetbix. I saw Benjamin get hit with the cricket bat. Abby has changed. She doesn't like her mother. We'd sometimes miss out on dinner. I had to stand in the corner, my legs were hurting. She pulled my ear if I moved in the corner and smacked me across the face. SC didn't stop her. KC put a spoon down my sister's throat. KC wouldn't let me play. I had to sit in my room, we weren't allowed to watch TV, she'd just put me in my room. She let Nicholas be naked ... she made Nicholas stand at the front door and Abby opened the door. Nicholas got into trouble because he couldn't find any clothes to wear. Then KC said to Nicholas go and get dressed. I've seen SC sit on Benjamin, they were killing him, they closed his mouth. SC didn't hit me but KC did".

"Interviews with Benjamin, Nicholas, Julian and Kathleen indicate that all children continue to feel the deleterious effect of the abuse and neglect at the hands of KC and SC. They remain fearful of their father and KC and present as insecure and emotionally neglected young children. Each of the children is likely to benefit from additional support and counselling at school to assist them to achieve their academic potential and to strengthen their self esteem."

"Abby presented at interview as a particularly reserved young child, hiding behind one of the caseworkers at Barnardos when being introduced to the clinician. However rapport was quickly established and Abby commenced talking about how happy she was with her carers... and chatted about school...

She spoke about her mother and stated "I like SC but not my mum, SC tickles me, I like seeing Julian, Kathleen ... Kathleen is good, Julian is cheeky, he says you are so cute little Abby, I like seeing them every two weeks". She continued to talk about her mother and stated "Mum was very angry all the time... She fed Barry the wrong food, she would feed him lollies but SC took it out of his mouth, then Mum and Dad had a fight, but once SC said to Mum to get out of the house. I got no cuddles from Mum, only Dad, he is better than Mum, but I don't want to see KC or SC. I just want to get my toy pig out of there. Mum doesn't listen to anybody or Dad and my brother had to eat his own vomit. Benjamin didn't want his weetbix and he smacked my mum, and she said to eat the vomit. She smacked him with a spoon. She made them take their clothes off and poured water over them. I helped them. I want to teach her a lesson not to smack anyone with a bat. I kicked her on the bottom. I am cranky with my mum when I see her. I saw her hit my brothers. They would get sent to the naughty corner, I'd try to get them out of the naughty corner. I try to bite her to stop her from doing things. I hate her. I don't want to see her. Both of the boys would get hosed. Once I sneaked outside and turned it off. Mum thinks they are naughty but I don't think they are naughty, they are good, not bad. Only my mum was naughty not my Dad. SC doesn't want to hurt anybody but I don't want to see SC. I couldn't go and get food from the cupboard when mum was there. I used to sneak into the cupboard. I wasn't allowed to go and get food".

23 Another of Johnstone DCJ's tasks was to assess the available evidence that the parents are likely to be able to satisfactorily address the issues that had led to Campbell's removal from their care: Care Act , s 83(1)(b). From this and from the child's circumstances the legislation required Johnstone DCJ to "assess whether there was a realistic possibility [of Campbell] being restored to his...parents": Care Act s 83(1). KC and SC gave evidence about this subject. Johnstone DCJ found their presentation as witnesses "most unsatisfactory". His Honour found (at [57]) that they trivialised the abuse of their children and attempted to minimise their roles in it. In short they had little insight into the serious harm that they had being doing to the children under their care. His Honour found:-

"57. The presentation of each parent in the witness box was most unsatisfactory. In giving their evidence, each of them continued to trivialise the abuse of their children and minimise their role in it. A particularly disappointing feature was their lack of candour. I was hoping for more, particularly in the light of what I had read in Dr Bank's reports. In retrospect, however, perhaps this was not surprising, in that the absence of candour has been a hallmark of their behaviour from the outset. This was conspicuous in their dealings with doctors, and evident also in their dealings with others, including caseworkers. That this feature of their conduct and character still persists was strongly indicative of their continuing lack of insight and acceptance of the nature and level of abuse inflicted by them on their children. They were unresponsive and evasive, aggrieved and resentful, and their evidence was facile and guarded, and was pervaded by insincerity and equivocation."

24 Johnstone DCJ ultimately concluded ([59], [60] and [61]) on this evidence that the parents were unlikely to be able to address the issues that led to the removal of Campbell from their care:

"59. Having regard to that totality of evidence, the Department has comfortably satisfied me on the balance of probabilities that these parents are not likely to be able to satisfactorily address the issues that led to the removal of Campbell from their care. Sadly, they have never adequately acknowledged their abuse of their children, in particular the nature and depth of that abuse and its impact on the well-being of the children. I have also concluded that they may be incapable of that understanding. Their attempt to embark upon a process of improving their parenting skills and insight into their conduct has not resulted in significant success, and what has occurred is in my view insufficient to confidently predict any continuing success. Whilst I do not entirely subscribe to the 'talk is cheap' concept, I am of the view that there has been an aura of unreality and superficiality surrounding the totality of the parents' response to the removal of the children.

60. The weaker, compliant nature of SC was evident. He just 'went along' with whatever KC wanted or did. He never stood up to her or defended the children against her excesses. Indeed he adopted her style of abusive parenting (Dr Banks). It is evident that he will continue to just 'go along', and one could not confidently predict that he could be a safe haven in the future when the going gets tough. KC is clearly the stronger partner in the relationship. Her capacity to dominate, coax, manipulate and cajole clearly emerged from the evidence including her own presentation in the witness box.

61. Some thought had been given by the parents as to how they might cope in the event of a restoration of Campbell. But when tested in cross-examination, they both fell short on numerous occasions. Even the written plan, when it eventually emerged (Exhibit 6), late, almost an afterthought, was unconvincing."

25 Johnstone DCJ also examined wider issues and considered whether there may be other impediments to Campbell and Abby's restoration to KC and SC. Aspects of these issues feature again in the matters that the parents now advance as evidence of "significant change of any relevant circumstances" in the present application.

"64. It is not, therefore, necessary for me to examine in detail whether there are other aspects of Campbell's circumstances that militate against the possibility of a restoration being realistic. I was addressed by counsel on various aspects relating to Campbell's circumstances, including his age, the fragility of the parents' relationship, staying with Abby, the presence of Barry, and the risk of multiple movements between carers. These factors add weight to the finding that there is not a realistic possibility of restoration of Campbell to the parents, but would not, of themselves, establish that proposition (T 774.23 - 29)."

26 His Honour also observed (at [75]) that he was satisfied that any possibility of restoration of Campbell to his parents' care "...is based on hopes for the future that have been demonstrated as unlikely".

27 Abby and Campbell's foster care arrangements have altered since 2007. Prior to the hearing before Johnstone DCJ, Abby and Campbell had been placed together with the same carers. But during the period of the hearing Abby's behaviour led to her being placed elsewhere and separated from Campbell.

28 Thus by the time of Johnstone DCJ's decision, Campbell was living in foster care on his own. In early 2009 the Minister determined that Campbell's foster placement no longer remained appropriate. As a result from 1 May 2009 Campbell was placed with new carers through the Barnado's Find-a-Family Program. Despite these altered fostering arrangements, Campbell still has maintained contact with KC and SC six times each year, for 2-3 hours each time. Campbell also has regular contact with Abby and SC's four children.

29 In June 2010 KC sought leave to proceed to rescind Johnstone DCJ's orders. As indicated earlier in these reasons, the application came before Marien DCJ and on 13 September 2010 his Honour refused to grant leave. His Honour assessed that Johnstone DCJ's decision was "principally based upon his Honour's findings that the parents lack insight into and have never adequately acknowledged the serious nature of their physical and emotional abuse of their children and the serious detrimental psychological effects on children of such abuse": Re Kurt , 20/9/10, Children's Court of NSW, unreported , Marien DCJ at [45].

30 The parents did not demonstrate to Marien DCJ "significant change" in any "relevant circumstances", as required by the Care Ac t, s 90(2). Marien DCJ found that the parents needed to establish that they had achieved some success in addressing the issues that led to the removal of their children, such that there could be restoration of Campbell within a viable timeframe. Indeed, he held, (at [59])

"On the evidence before me, in particular the cogent evidence of lack of insight on the part of the parents into their abuse of their children, I am clearly of the opinion that a rescission of the present care arrangements and the restoration of Campbell to the care of his parents would create an unacceptable risk of harm to Campbell."

31 The present application for leave would lead to a hearing de novo in which this Court would exercise the functions and discretions of the Children's Court and on which its decision would be taken to be a decision of the Children's Court: Care Act , s 91(2),(4) and (6). This application for leave therefore does not involve examining Marien DCJ's reasons, other than to see how KC's case was presented to his Honour, the President of the Children's Court.

The Objects and Principles of the Care Act

32 In Chapter 2, the Care Act provides a comprehensive scheme for the welfare of children, informed by objects, principles and responsibilities for the administration of the Act. The objects and principles identified in Care Act , Chapter 2 are "intended to give guidance and direction in the administration" of the Act: Care Act , s 7. I have taken them into account in my reasoning with respect to Campbell. The objects of the Care Act are set out in Care Act, s 8:

"8 What are the objects of this Act?

(a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and

(b) that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and

(c) that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment."

33 The Care Act is to be administered under principles provided for in s 9. These principles inform the exercise of the discretion of the Children's Court under Care Act , s 90. Chief among these is the principle that in any decision concerning a particular child or young person made under the Care Act , the safety, welfare and well-being of the child or young person are paramount. The principles for administration of the Care Act are provided for in s 9(1) and (2):-

"9 Principles for administration of Act

(1) This Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount.

(2) Subject to subsection (1), the other principles to be applied in the administration of this Act are as follows:

(a) Wherever a child or young person is able to form his or her own views on a matter concerning his or her safety, welfare and well-being, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child or young person and the circumstances.

(b) In all actions and decisions made under this Act (whether by legal or administrative process) that significantly affect a child or young person, account must be taken of the culture, disability, language, religion and sexuality of the child or young person and, if relevant, those with parental responsibility for the child or young person.

(c) In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child's or young person's development.

(d) If a child or young person is temporarily or permanently deprived of his or her family environment, or cannot be allowed to remain in that environment in his or her own best interests, the child or young person is entitled to special protection and assistance from the State, and his or her name, identity, language, cultural and religious ties should, as far as possible, be preserved.

(e) If a child or young person is placed in out-of-home care, arrangements should be made, in a timely manner, to ensure the provision of a safe, nurturing, stable and secure environment, recognising the child's or young person's circumstances and that, the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement.

(f) If a child or young person is placed in out-of-home care, the child or young person is entitled to a safe, nurturing, stable and secure environment. Unless it is contrary to his or her best interests, and taking into account the wishes of the child or young person, this will include the retention by the child or young person of relationships with people significant to the child or young person, including birth or adoptive parents, siblings, extended family, peers, family friends and community."

34 The parties debated the relevance of one of these considerations, namely the principle of "the least intrusive form of intervention" provided for in Care Act s 9(2)(c).

35 This principle has recently received appellate consideration in Re Tracey [2011] NSWCA 43. There Giles JA, with whom Spigelman CJ and Beazley JA agreed, held that the principle had limited application in cases such as the present one, where the Court is considering whether or not to displace existing care arrangements and return a child to the child's family. His Honour explained at [79]:

"[79] With respect, in my opinion s 9(2)(c) did not prescribe a principle of least intrusive form of intervention in the circumstances with which her Honour was concerned. Its prescription is confined to when it is necessary to take action in order to protect a child or young person from harm, and when taking action is necessary the course to be followed must be one of least intrusive intervention as further described. There must be a prospect of harm if action is not taken, and the question is then the nature of the action. Where the question is whether an order should be made whereby existing care arrangements are displaced and the child or young person is returned to his or her family, the harm which would or might come about if an order is made whereby the child or young person is taken from an existing carer is not harm against which action is necessary in order to protect the child or young person; nor is the harm which would or might come about if an order is made whereby the child or young person is left with an existing carer. Section 9(2)(c) has no effect in preservation of existing care arrangements in the present circumstances."

36 But Giles JA also explained that apart from Care Act , s 9(c) preference for the continuance of existing care arrangements may still be a material matter in applying s 9 principles when deciding whether or not to rescind existing care arrangements.

"[81] This is not to deny that preference for continuance of existing care arrangements, rather than return of the child or young person to his or her parents, may be a material matter in determining where the paramount safety, welfare and well-being of the child or young person lies on an application to vary or rescind a care order. Apart from its obvious relevance to the paramountcy principle, the considerations of s 90(6)(c), (d) and particularly (f) of the Care Act may give weight to preservation of an existing care arrangement. But it does not have the statutory prescription of least intrusive intervention found in s 9(2)(c)."

37 The present case was not one in which the evidence established that any order was necessary "in order to protect [Campbell] from harm". No criticism was offered in respect to the circumstances of his current placement. Therefore, Re Tracey , means that Care Act , s 9(2)(c) was not itself a relevant consideration in the exercise of my discretion under s 90(1).

Care Act s 90(1), Application for Leave - Legal Principles

38 KC brings her application under Care Act, s 90. The legislative policy behind the requirement for leave in s 90(1) is to reduce uncertainty and anxiety for children in care when applicants (often birth parents) apply for variation of Court orders, when they have little prospect of succeeding. The legislation does not remove the right for the parent or other applicant to rescind or vary a court order. Rather it modifies the exercise of that right in the interests of the child. C are Act , s 90 provides:-

"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."

39 Care Act , 90(2A) identifies the mandatory considerations for s 90(1) leave applications. Care Act , s 90(6) identifies the mandatory considerations that apply upon a substantive application to vary or rescind a care order once leave has been granted under s 90(1). These two provisions are connected in one important way. A Children's Court considering a grant of leave under s 90(1) must consider whether the "applicant has an arguable case" (s 90(2)(e)). The "arguable case" in question is an arguable case for the making of an order to "rescind or vary a care order", an order in which when it is applied for, must be made or refused, taking into account s 90(6) considerations. Thus when considering a s 90(1) grant of leave, the Children's Court may need to look ahead at relevant s 90(6) considerations when analysing the arguable case issue.

40 Care Act , s 90 reflects a long standing policy of the law to prefer the interests of children to the rights of those seeking to litigate custody disputes. In M v M (1988) 166 CLR 69, at 76 a unanimous High Court said:-

"Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; McKee v McKee [1951] AC 352 at 364-5. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf J v Lieschke (1987) 162 CLR 447."

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.

44 The judgment of Davies AJA in S v Department of Community Services also shows (at [27]) how to measure "significant change" in relevant circumstances as required by s 90(2). Such measurement "requires "a comparison between the situation at the time the application was heard and the facts underlying the decision made or last varied".

45 The Children's Court frequently considers and applies s 90(2). 'Significant change' was considered in Re J, K and C [2002] 2 CLN 1 by Children's Magistrate Crawford. His Honour there was of the view that the change was of significance if, were it established, it would cause the Court to wish to alter the existing order. Although expressed in slightly different language this approach seems to me to be indistinguishable from the Court of Appeal's formula in S v Department of Community Services .

46 The parties also referred the Court to the Full Family Court decision of In the Marriage of Rice and Asplund (1978) 6 Fam LR 570, where Evatt CJ considered changed circumstances to be "some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material" (at 572). But her Honour here was considering a different phrase in a different statutory context. Here, the Court of Appeal gives the Children's Court sufficient guidance in S v Department of Community Services , even though that case was decided before the addition of s 9(2A) to the Act.

47 Care Order Made or Last Varied . There was no disagreement among the parties that Johnstone DCJ made or last varied the care order, on 12 December 2008.

Legal Principles - Care Act, s 90(2A)

48 The Courts' s 90(1) discretion is limited not only by s 90(2), but also by the requirement to take into account the s 90(2A) list of considerations. Care Act , s 90(2A) was inserted into the legislation by the Children and Young Persons (Care and Protection) Amendment (Permanency Planning) Act 2002 (NSW).

49 I agree with the observations of the learned President of the Children's Court, Marien DCJ in his judgment of 20 September 2010 in this matter, that establishing significant change in a relevant circumstance is a necessary, but not a sufficient condition for leave to be granted: Re Kurt , 20/9/10, Children's Court of NSW, unreported , Marien DCJ, at [32]. The Court retains a general discretion whether or not to grant leave after considering whether there has been significant change in any relevant circumstances since the care order was made or last varied. Care Act , s 90(2A) identifies the mandatory considerations that must inform the exercise of that discretion. Perhaps the most frequently analysed of these mandatory considerations is "whether the applicant has an arguable case": Care Act , s 90(2A)(e).

50 In a number of cases sitting as President of the Children's Court, Marien DCJ has applied statements of Malcolm CJ in Dempster v National Companies and Securities Commission (1993) 9 WAR 215, upon the meaning of the phrase "arguable case". With respect, I agree with Marien DCJ that the phrase "arguable case" carries a meaning in this legislation similar to that in the legislation under consideration by Malcolm CJ in Dempster v National Companies and Securities Commission . There the Full Court of the Supreme Court of Western Australia was considering Justices Act 1902 (WA), s 187(1), which provided that an application for leave to appeal from the decision of a justice may be made only on certain specified grounds, and that "the judge should grant leave to appeal unless he considers that the appeal is frivolous or vexatious or that the grounds of appeal advanced do not disclose an arguable case". In Dempster v National Companies and Securities Commission Malcolm CJ said at [262]:-

"It was contended on behalf of the appellant that the expression "arguable case" in s 187(1) meant "capable of being arguable" (see The Shorter Oxford Dictionary ). In my opinion, having regard to the context, an arguable case is one that is not merely capable of being argued, but one that is reasonably capable of being argued in the sense that it has an argument which has some prospect of success. In this context, "arguable case" necessarily has the same meaning as "reasonable case", as that expression is used in O 20 r 19 of the Rules of the Supreme Court 1971. The case must be one which has some chance of success: Republic of Peru v Peruvian Guano Co [1887] 36 Ch D 489 at 495."

51 Marien DCJ applied this statement of Malcolm CJ in Dempster in his decision on KC's application on 20 September 2010.

52 Care Act , s 90(2A)(e) "arguable case" was also considered in In the matter of OM, ZM, BM and PM . There Senior Children's Chief Magistrate Mitchell held the expression to mean the same as 'reasonable prospects' or 'probability' but something less than a prima facie case, relying upon Mahoney JA's judgment in Shercliff & Anor v Engadine Acceptance Corp Pty Ltd [1978] 1 NSWLR 729. But Shercliff was not a case seeking to interpret a similar statutory formula, and I prefer in this case the application of the statement I have identified in Dempster.

53 The "arguable case" in Care Act , s 90(2A)(e) relates to the case for an order of rescision or variation, an order which the Court must decide upon, taking into account the matters in s 90(6). Of particular present relevance in this case among these s 90(6) considerations is s 90(6)(f), namely "the risk to the child or young person of psychological harm if present care arrangements or varied or rescinded".

54 The "arguable case" for rescission of the present care orders is one for the restoration of Campbell to KC and SC. If the Court grants leave to proceed, the Children's Court will be required to consider in the present circumstances, in the same way that Johnstone DCJ was required in the circumstances facing him in December 2008, to evaluate "whether there is a realistic possibility of [Campbell] being restored to his parents", Care Act , s 83(1).

55 The expression "realistic possibility of restoration" has often been interpreted by the Children's Court and on appeal to the District Court. I was not referred in argument to particular judicial pronouncements on the meaning of "realistic possibility of restoration". But when Johnstone DCJ considered this same matter in December 2008 [ Re Saunders and Morgan & Anor v Department of Community Services, 12/12/2008, NSWDC, Unreported, Johnstone DCJ] he drew upon a summary of Children's Courts practice given by Senior Children's Magistrate Mitchell. Johnstone DCJ accepted the practical wisdom of Senior Children's Magistrate Mitchell's summary but found the words "realistic possibility" to set a somewhat less onerous test than Senior Magistrate Mitchell had set. The passage from Johnstone DCJ's judgment is the following:-

"[11] I was unable to discover any judicial pronunciation on the meaning of a 'realistic possibility' of restoration. I was directed to the following passage in the submissions of Senior Children's Magistrate Mitchell to the Special Commission of Enquiry into child protection services in NSW:

'The Children's Court does not confuse realistic possibility of restoration with the mere hope that a parent's situation may improve. The body of decisions established by the court over the years requires that usually a realistic possibility be evidenced at the time of hearing by a coherent program already commenced and with some significant 'runs on the board'. The court needs to be able to see that a parent has already commenced a process of improving his or her parenting, that there has already been significant success and that continuing success can confidently be predicted.

What is required can be likened to a prima facie case where absent some unforeseen and unexpected circumstance a safe and appropriate restoration will be possible in the near future'.

[12] This passage has elements that resonate. With respect, however, to liken the determination to the concept of a prima facie case is alien to the fact that these are civil proceedings. It is also at odds with the natural meaning of the words themselves, and in my view a purposive and beneficial construction of the legislation does not require such an onerous test.

[13] There are aspects of a 'possibility' that might be confidently stated as trite. First, a possibility is something less than a probability; that is, something that it is likely to happen. Secondly, a possibility is something that may or may not happen. That said, it must be something that is not impossible.

[14]. The section requires, however, that the possibility be 'realistic'. That word is less easy to define, but clearly it was inserted to require that the possibility of restoration is real or practical. It must not be fanciful, sentimental or idealistic, or based upon 'unlikely hopes for the future'. Amongst a myriad of synonyms in the various dictionaries I consulted, the most apt in the context of the section were the words 'sensible' and 'commonsensical'.

56 Marien DCJ referred to this passage with apparent approval in this decision on 20 September 2010 in this matter. What Johnstone DCJ says in paragraphs [13] and [14] is, in my view, with respect to his Honour, correct and is about all that can usefully be said about the expression "realistic possibility". It is going too far to read into the expression a requirement that an applicant must always at the time of hearing of the application for rescission or variation have demonstrated participation in a program with some significant "runs on the board". That in my view is to put a gloss on the words which are not in the legislation.

57 Care Act , s 83(1) makes clear at what time 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 that 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 that time be a realistic possibility. But when leave to bring such an application is sought under s 90(1), as counsel for KC pointed out, 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.

The Plaintiff's Case

58 KC must establish that there has been a significant change in any relevant circumstances since Judge Johnstone's decision on 12 December 2008. This application was heard before me on 18 March 2011. Mr Braine, counsel for KC, submitted that there were four significant changes to relevant circumstances:

(1) The parents now say they have now provided two years of daily care to Barry, an extremely high needs child and the Department has not raised any concern about the quality of care being provided to Barry;

(2) Campbell's present carers are now proposing to adopt him. KC submits that if this were to occur, any future entitlement to pursue restoration of Campbell would be extinguished;

(3) Campbell's placement was changed on 1 May 2009;

(4) The parents have actively sought to address the deficits in their parenting identified by Judge Johnstone.

59 In assessing KC's case the Court must take into account all the s 90(2A) factors. Prominent among these factors here is whether KC has an arguable case: s 90(2A)(e). The other s 90(2A) matters are less contentious here. As described in detail earlier in these reasons this is an application for leave to rescind the care order: s 90(2A)(a), Campbell is six years old: s 90(2A)(b), has been in the care of his current carers since 1 May 2009, now just over two years: s 90(2A)(c). It is understood that the plans for Campbell now include his adoption by his current carers: s 90(2A)(d).

The Parents' Satisfactory Care of Barry

60 KC first submitted that the Department has not raised any concerns about the quality of care that she and SC have now provided to Barry, a high needs disabled child, since Johnstone DCJ's decision. Because Barry has been back with KC and SC since January 2007, KC's and SC's care for him was an issue they advanced in their favour before Johnstone DCJ in November 2008. But the issue now is how the Court assesses the two and a half years that have elapsed since November 2008.

61 KC relies on a statutory declaration of Ms Lynn Thomas, the registered nurse involved in Barry's day-to-day care. Ms Thomas states, "Barry's parents have managed these treatments in an excellent fashion including transporting Barry, when well by the use of a portable oxygen tank. Barry's prognosis is guarded, in spite of the excellent care in the home". KC also relies on a statutory declaration of Ms Janice Byrne, a care worker who attends the home to shower Barry. Ms Byrne states, "I have never had any concerns into the care and welfare of Barry, while in the care of KC and SC".

62 The affidavit of Leila Brown, a child protection caseworker employed by the Department, affirmed 22 December 2010, acknowledges the intensity of the care that KC and SC must give Barry, but points out that:

"42. Barry is a profoundly disabled child, with very severe congenital disabilities. He has intractable epilepsy and severe neurological dysfunction. He is required to be tube fed, he is incontinent, cannot walk or talk and is permanently in a wheelchair. Barry requires almost constant attention and supervision, including needing to have his nappy changed regularly, and a need to be turned at night.

...

48. I am concerned that the introduction of Campbell into Barry's current home environment will have a detrimental affect on both the stability of Barry's care and on Campbell's ability to settle and adjust to KC and SC's care. Given the circumstances, further litigation in relation to Campbell would not be in his best interests."

63 It was accepted at the time of the hearing before Johnstone DCJ that the parents' care of Barry was "good enough" and it was quite safe for him to live in their home. The correctness of this acknowledgement has been confirmed by two more years' satisfactory care of Barry in the parents' home. The Minister and the Department submit that as the parents have been caring for Barry successfully since Johnstone DCJ's decision, and that this is not a relevant circumstance that has significantly changed but one that has merely continued. Campbell's ILR supports the Minister and the Department's submission.

64 I agree with the Minister's submission on this first matter. The lack of complaint by the Department about Barry's care and the continuation of that care should not be considered a significant change in relevant circumstances. The parents' household was accepted as safe before Johnstone DCJ and his Honour did not find that Barry was at risk of harm. The parents' care for Barry was satisfactory in December 2008 and it still is. It has not greatly changed in quality. This matter is not a basis to grant leave under Care Act , s 90(2).

65 But this matter is of wider relevance. Although on its own this matter does not warrant a grant of s 90(2) leave, it does assist the parents in other ways. When the Court is considering the fourth matter KC advances, the parents' improved parenting capacity and their present insight into the extent of their past abuse, their continued care of Barry is to be taken into account in their favour. There can be no doubting the daily test of personal character and commitment that comes with the constant care of a child with Barry's special needs. It is of very considerable credit to KC and SC that they have been able to sustain this care most satisfactorily for so long.

66 But I am not concluding that this matter of Barry's continued care is not a "significant change in any relevant circumstances" merely because it has continued from before December 2008. Merely because a matter, or many of its features, pre-exist the making (or variation) of the subject care order does not automatically mean that the matter cannot constitute a "significant change in any relevant circumstances". To identify "significant change" much will depend in each case upon the time that the matter in question has existed after the care order was made (or last varied) and how the features of the matter have altered through that period.

The Adoption of Campbell

67 Campbell's current carers wish to adopt him. KC submits that their proposed adoption is one of the "plans for the child" that the Court must consider on this leave application: s 90(2A)(d). She submits that Campbell's adoption by his present carers, would extinguish any entitlement of Campbell's parents to pursue Campbell's restoration to them.

68 This is a prospect that was not in the care plan dealt with before Johnstone DCJ. Indeed Campbell was not with his present carers at that time. The possibility of an adoption proceeding was raised by the plaintiff in the proceedings before Marien DCJ. But his Honour did not fully consider the issue, as the Director-General's legal representative had no instructions that an adoption was proposed to take place. It is clearer on the evidence now before me that in fact there was a proposal in train to adopt Campbell in September last year but that the Director General's legal representative was unaware of that proposal. This may be explained by difficulties in communication in a large department. In any event the matter is before me now.

69 Marien DCJ did have regard to a recommendation for Campbell's adoption by a clinical psychologist, Theresa Lindfield. Ms Lindfield is appointed to assess Campbell's attachment to his current carers and his ability to make decisions in relation to contact with his natural parents. Her reports are annexed to the affidavit of Ms Lisa Kairouz, the Departmental caseworker with day-to-day responsibility for Campbell. Ms Lindfield recommended, i n her report dated 24 July 2010, "that Campbell's permanency and security are enhanced and promoted through the legal protection of an adoption order".

70 Adoption Act 2000, s 96(1)(a) provides that existing parental responsibility, including that of the Minister under the Care Act , "ceases to have effect" upon the making of an adoption order. KC submitted that the chance of the parents seeking restoration of Campbell or the utilisation of any other rights under that Act will cease upon his adoption and, to use Mr Braine's words, "this may be the last opportunity...for the parents to agitate for the restoration". Mr Braine also submitted that the current draft care plan for Campbell provided for a one-third reduction in the contact time between him and the parents, who currently have contact six times each year. Ms Lindfield recommended a decrease in contact to twice each year upon any adoption.

71 The Minister and the Department submitted that the proposal for adoption of Campbell is not a change in "relevant circumstances" because it does not go to the issues before Johnstone DCJ. Campbell's ILR adopted the submissions of the first defendant in respect of adoption, that it is not a matter relevant to the current proceedings.

72 The principal issues here then are (1) whether the adoption proposal is one of the s 90(2) "relevant circumstances" and whether this leave application is the last opportunity for the applicants to apply to restore Campbell to their care.

73 In my view the foster carers' proposed application for an adoption order in relation to Campbell is "a significant change in relevant circumstances". It was an application that is being proposed at the time of the leave application before me. If successful it will have very significant consequences for the parents' relationship with Campbell. It was not a "fact underlying the decision when the order was last made or varied": S v Department of Community Services [2002] NSWCA 151 at [27]. But although this matter satisfies Care Act , s 90(2) there is another discretionary obstacle to the parents' application.

74 KC's 'last opportunity' argument has several problems. In the first place it does not sit well with the objects of the Care Act . The argument seems focused on the parents' interests rather than Campbell's. The principle that "the safety, welfare and wellbeing of [Campbell] are paramount" ( Care Act , s 9(1)) may mean that the parents may have to forego a last opportunity to restore Campbell to their care. But the last opportunity argument is flawed for other reasons, which require some background about the operation of the Adoption Act .

75 An adoption order cannot be made in relation to a child who is less than 18 years of age unless consent to the making of the order has been given by each parent and any person who has parental responsibility for the child: Adoption Act , s 52. Here the consent of the Minister, who has parental responsibility in relation to Campbell, and of the parents will be required. Once an adoption order is made the Minister will cease to have parental responsibility for Campbell: Adoption Act , s 96. The Court has power to dispense with the requirement for consent in the circumstances provided for in Adoption Act , s 67 which provides:-

" 67 When can Court dispense with consent of person other than the child?

(1) The Court may make a consent dispense order dispensing with the requirement for consent of a person to a child's adoption (other than the child) if the Court is satisfied that:

(a) the person cannot, after reasonable inquiry, be found or identified, or

(b) the person is in such a physical or mental condition as not to be capable of properly considering the question of whether he or she should give consent, or

(c) if the person is a parent of, or person who has parental responsibility for, the child-there is serious cause for concern for the welfare of the child and it is in the best interests of the child to override the wishes of the parent or person who has parental responsibility, or

(d) if an application has been made to the Court for the adoption of the child by one or more persons who are authorised carers for the child:

(i) the child has established a stable relationship with those carers, and

(ii) the adoption of the child by those carers will promote the child's welfare, and

(iii) in the case of an Aboriginal child, alternatives to placement for adoption have been considered in accordance with section 36.

(2) The Court must not make such a consent dispense order unless satisfied that to do so is in the best interests of the child. "

76 If a parent opposes an application to dispense with the requirement for his or her consent to the adoption under Adoption Act has a right to put a case to the Court to resist the making of an Adoption Act , s 67 order.

77 A decision to dispense with the consent to adoption of a parent Adoption Act , s 67 is a serious one. The importance of the parents' consent and the circumstances in which it is given have long been recognised in relation to the operation of the Adoption Act and its predecessor legislation: Mace v Murray (1955) 92 CLR 370. As Moffitt JA described in Infant, K & the Adoption of Children Act, Re [1973] 1 NSWLR 311 at 321, in relation to the Adoption of Children Act 1965:

"It is important that the court have a clear appreciation of the significance of an order made under s 32(1)(e), namely, that by it a parental right not found of any basis by conduct or consent to be lost, is to be ended and the parental tie destroyed forever. It must appear that the taking of that extreme step "will" promote the welfare and interests of the child. The courts have always regarded the severance of the natural tie and the making of the child of one person the child of another as a most serious step particularly when opposed by a parent or parents. It has been said it is a rare case that the judicial mind will be satisfied to take this step against the consent of a parent; Mace v Murray (1955) 92 CLR 370, at pp 380, 385; O'Connor v A & B [1971] 1 WLR 1227; [1971] 2 All ER 1230; Re Betar & the Child Welfare Act 1939 [1965] NSWR 321."

78 Mr Braine is partly right that the present leave application is a last practical opportunity to have a claim for Campbell's restoration heard before an adoption application is heard. But it is certainly not the last opportunity for the parents to oppose Campbell's adoption and to advance the alternative possibility of his restoration to their care.

79 In a contested adoption application made by the child's "authorised carers", as is proposed here, proof of the relationship with the carers does not eliminate important alternatives available to the birth parents. In D v Director-General Department of Community Services (2005) 34 Fam LR 445, Hodgson JA was of the opinion that the fact that the child had already been in the care of the proposed adoptive parents for more than a year should be taken into account in deciding the question of dispensing with consent as it was relevant to the best interests of the child (at [41]).

80 In Director-General, Dept of Community Services v D & Ors (2007) 37 Fam LR 595. Brereton J re-heard the application considered by the Court of Appeal in D v Director General Department of Community Services (2005) 34 Fam LR 445. In reconsidering the application Brereton J said (at [193]), "Although the interests of the child are paramount, the Adoption Act does not entirely disregard the parental rights of the birth parents as is evident from the requirement of their consent". His Honour was of the opinion (at [196]) that in deciding whether to dispense with the consent of a birth parent who was objecting to the adoption of her child, he was obliged to take into account the circumstances that would pertain if the birth parent had parental responsibility for the child. This possibility was then to be compared with the situation of the child with the proposed adoptive parents, in whose care the child had been for some years.

81 If the current carers' proposed adoption of Campbell proceeds, the parents will be able to oppose it. It will be for the court then to undertake an enquiry of the kind outlined by Brereton J in Director-General, Dept of Community Services v D & Ors (2007) 37 Fam LR 595. If asked to dispense with the parents' consent however, the Court will necessarily take into account their history of abuse of the children in their care when considering "whether there is serious cause for concern about the welfare of the child" under Adoption Act , s 67(1)(c). The Court will also consider on the adoption application whether Campbell has been cared for by his current foster carers for some two years: Adoption Act , s 67(1)(d).

82 But importantly for present purposes the adoption application will provide forum for the parents to oppose an adoption order and in doing so to put forward a scenario describing what might happen if they had parental responsibility for Campbell. Indeed, the evidence shows that such an adoption hearing is now reasonably likely.

83 Contact between the parents and Campbell would be included in the formation of any adoption plan made under Adoption Act , s 46(1)(a)(iii). Director-General, Dept of Community Services v D & Ors (2007) 37 Fam LR 595 shows the Court's flexibility in moulding appropriate relief in adoption proceedings. There, Brereton J declined to make an adoption order. Instead he preferred to make an order for parental responsibility in respect of the carers with contact for the birth parent.

84 It is clear that KC and SC will oppose the making of an order for Campbell's adoption by his current authorised carers, who I understand wish to apply for such an order. That opposition is likely to generate a contested hearing. In that hearing the Court: will not be exercising jurisdiction under the Care Act , and will not have power on their application to order Campbell's restoration to his parents. But at that hearing the Court may examine the possible scenario of Campbell being returned to the parents if they appear and advance that scenario.

85 The Court's will be required to consider matters analogous to the question that would arise under Care Act , s 83, namely whether there is a realistic possibility of Campbell being restored to his parents' care. Even if the application for an adoption order were a "relevant circumstance", I would exercise my discretion under s 90 to decline to grant leave on the ground that it is undesirable to have two hearings in fairly close proximity about overlapping issues concerning contested parental responsibility for Campbell. If the parents are able to show in a contested adoption hearing that there is a realistic possibility of Campbell being restored to them were they to be granted leave to apply under Care Act , s 90, then the dispensation with their consent and the making of an adoption order are unlikely. If their consent to adoption it not dispensed with then they will retain their rights to make later application for Campbell's restoration. In my view Campbell's best interests indicate proceeding this way and now refusing leave.

Campbell's Placement Change

86 KC next submitted that a relevant change of circumstance was that Campbell's placement had changed on 1 May 2009 after Johnstone DCJ's decision. The reasons for the change are not of particular relevant to the present application. Campbell was placed with a same sex couple who were experiencing instability in aspects of their relationship. Counsel for KC referred the Court to the report of Ms Lindfield relating to her assessment of Campbell's original placement dated 29 April 2009 (at 15):

"Overall, [names not published] impressed as a young couple who have had quite a turbulent period through the course of Campbell's placement. This period has included a separation and reconciliation, ongoing difficulties with Abby resulting in a subsequent breakdown of her placement, a large wedding and honeymoon, fertility treatment and preparation for gender transformation for [name not published], as well as a current house move. ..."

Ms Lindfield recommended that Campbell not be placed with this couple on a long-term basis.

87 Shortly after that report, Campbell was placed with his present foster carers. In her report dated 24 July 2010, Ms Lindfield says of the new placement arrangements (at 7):

"... In my opinion, [names not published] demonstrate excellent insight into Campbell's needs. They have been able to form a very strong bond to him and this has been reciprocated by Campbell. At age 3.10 years, Campbell was fortunately still in his critical attachment-forming years when first placed with [names not published], and therefore he was still young enough to attach. It should also be noted that throughout the 2 years in [name not published] care Campbell was somewhat emotionally deprived, was not managed consistently, and was confused, however he was not abused. His placement change came at a time when he still retained an attachment capacity, and he was fortunate to have been placed with carers who have superior parenting skills.

In view of his early history of abuse/neglect in his mother's care, which was followed by his less-than-ideal care in his first foster placement, Campbell's needs for stability and good attachment opportunities are now paramount. His placement with [names not published] has been one where there is excellent psychological 'fit'. Campbell has blossomed in their care and this is very evident in his happy, expressive and confident presentation. It is therefore important that his current placement is supported and maintained. Given his early experiences, Campbell is certainly a young child who cannot emotionally afford any further disruption. His early experiences have already made him extremely vulnerable to future adjustment risks as a teenager and young adult, making it crucial that his permanency is now addressed as a matter or (sic) priority."

88 The Minister and the Department submitted that a change in Campbell's foster placement is not a change in relevant circumstances, as it is a change that does not go to the issue of whether there is a realistic possibility that he be restored to his parents. Though the change may have been significant for Campbell; Campbell has remained under the care of the Minister and may be placed in the care of different people depending on what the Minister decides is the appropriate course. Campbell's ILR adopted the Minister's and the Department's submissions in respect of the matter of Campbell's placement change.

89 The Minister's and the Department's submissions are persuasive in relation to this matter. This circumstance, though changed, is not a " significant change in any relevant circumstances" [Emphasis added]. It is a new factor that has arisen. But Campbell has remained under the Minister's responsibility. The Minister has always been able to place Campbell with carers and change those carers in his best interests. The Minster's decision to stabilise Campbell's fostering arrangements since May 2009 does not bear upon the question whether there was a realistic possibility of restoration of Campbell to the parents.

Addressing the Issues that led to Campbell's Removal from the Parents' Care

90 Johnstone DCJ was robust in his finding regarding the numerous courses and programs the parents undertook in an effort to demonstrate that they had overcome the identified deficits in their parenting. His Honour said (at 59):-

"Their attempt to embark upon a process of improving their parenting skills and insight into their conduct has not resulted in significant success, and what has occurred is in my view insufficient to confidently predict any continuing success. Whilst I do not entirely subscribe to the 'talk is cheap' concept, I am of the view that there has been an aura of unreality and superficiality surrounding the totality of the parents' response to the removal of the children."

91 The plaintiff submits that the parents have now actively sought to address the deficits in their parenting identified by Johnstone DCJ. Mr Braine submits that as this is merely an application for leave, the Court does not need to form a view as to whether the parents demonstrate insight, as an expert appointed by the Children's Court would do that in the substantive hearing. I should instead view the material presented and form a view as to whether there are arguable issues on the face of that material, and those issues should then be investigated further following a grant of leave. I generally agree with this suggested approach.

92 As they have not been cross-examined, Mr Braine submitted that the parents' affidavits should be taken at their highest and I do. In KC's affidavit sworn 2 November 2010 she states:-

"9. I was the main person in the household caring for the children prior to them being assumed into care in November 2006. I acknowledge and take responsibility for the environment in which they were residing which was physically and emotionally and psychologically damaging to the children.

...

11. ... after what I now know, I feel certain that it would not happen again."

93 KC states at [23] that she started counselling with Michelle Dunn through Relationships Australia in late 2008 (however there is a letter from Ms Dunn annexed to her affidavit of 14 June 2010 which states she has attended counselling since September 2008), some two years after the children were removed from her care, prior to the commencement of the hearing before Johnstone DCJ. She has outlined what she has learned from nine parenting courses she attended and anger management, positive lifestyle and stress management programs. Under a hearing in her affidavit entitled "Arguable Case" she acknowledges responsibility for the abuse of the children in a way that she did not clearly do either before Johnstone DCJ or in Marien DCJ's hearing last year.

94 Johnstone DCJ raised concerns about the parents' relationship:

"60. The weaker, compliant nature of SC was evident. He just 'went along' with whatever KC wanted or did. He never stood up to her or defended the children against her excesses. Indeed he adopted her style of abusive parenting (Dr Banks). It is evident that he will continue to just 'go along', and one could not confidently predict that he could be a safe haven in the future when the going gets tough. KC is clearly the stronger partner in the relationship. Her capacity to dominate, coax, manipulate and cajole clearly emerged from the evidence including her own presentation in the witness box."

95 SC's recent affidavit sworn 2 November 2010 contains similar new material to KC's, including an outline of what he has learned from the parenting courses he has attended. He states (at [2]) "[I] acknowledge that the environment in which Campbell was living prior to 2006 was an abusive environment". He also says:-

"3. I believe that there have been significant changes in the way that KC and I relate to each other since November 2006. In particular I believe that since I have given up work to help KC in the day to day care of Barry our relationship has strengthened. I believe that I have become stronger in our relationship and that it is a much more balanced and equal relationship today."

96 Mr Hunt for the first defendant submitted that the question of the parents' insight is relevant under s 90(2), but there has not been a significant change. He drew the Court's attention to the interview of the parents by Ms Kairouz on 30 July 2010 in which the following exchange took place:

"Manager Casework said: There has been extensive Community Services involvement and history which resulted in your children coming into care, tell me what was going on for you at the time that the children first came into care?

The Father said: I wasn't coping with the children and I was abusing KC and the children psychologically and emotionally "

Mr Hunt submits that though this would appear to be an admission of SC as to his past behaviour, in fact it demonstrates a lack of insight, as Johnstone DCJ found that KC was the main perpetrator of the abuse and he should have acknowledged this to the case worker to show real insight into the past abuse.

97 Mr Hunt then took the Court to this point in the interview:

"Caseworker said: I know you completed allot of courses and attended counselling, have either of you ever engaged in a Psyc assessment or being assessed in relation to you general mental and emotional well being, since the last Court Proceeding? (sic)

The Mother said: We haven't needed an assessment; there isn't anything wrong with us mentally."

Mr Hunt's submission was that this statement demonstrated limited insight and the parents' completion of numerous parenting courses was merely "a ticking the box exercise".

98 At the end of the interview the following exchange occurred:

"Manager Caseworker said: From Community Services perspective we will be required to contact Barnados and gather some more information in determining our response, and we would need to consider you in light of the serious history of physical abuse

The Father said: But after we were arrested the charges were dropped, so it was not as serious as initially though (sic) to be

Manager Caseworker said: Irrespective of that point, the history was very serious

The Mother said: But Barry is in excellent care and there have not been any complaints about this."

Mr Hunt submitted that this too lacks insight as it diminishes the grievous nature of the findings of Johnstone DCJ.

99 Mr Hunt then submitted that though many courses had been undertaken, the Department did not accept that this really demonstrated an actual change of attitude.

100 Ms Neville for the ILR submits that the evidence put forward by the parents to demonstrate that they have addressed the issues that led to Campbell coming into care was that they had completed courses and counselling in relation to parenting, lifestyle and relationships is inadequate to support an inference of significant change. She says the evidence does not identify any insight gained by the parents into their past behaviour towards their children nor a commitment to implement alternative parenting strategies to the ones they used previously.

101 The ILR submits that although the affidavits filed by the parents in support of this appeal identify their present insight and what they have learned from various courses and describe the impact of counselling and course attendance, the level of insight now claimed is inconsistent with that deposed in affidavits for the purpose of the proceedings before Marien DCJ and the interview with the Department caseworkers in July 2010..

102 In Ms Neville's submission, the affidavits filed at the Children's Court do not go to the issue of physical abuse. The ILR submitted that though they identified physical abuse in their most recent affidavits, the parents did not demonstrate acknowledgment or insight into emotional or psychological harm and neglect.

103 Ms Neville also pointed to the parts of the interview identified by Mr Hunt and submitted that the interaction does not demonstrate an acknowledgment that the abuse that occurred in the household was serious abuse. Additionally, Ms Neville took the Court to this point in the interview with the Department caseworkers that showed that the parent had to be prompted to acknowledge physical abuse:

"Manager Casework said: Do you feel that you were physically abusing the children as well? (sic)

The Mother said: Oh and hit them

The Father said: Yes we hit them"

104 Ms Neville submitted too that on the basis of the interview there was no demonstration of insight into the possibility that the events which were occurring in the household may have had any impact on Campbell. The following passage shows that their unprompted insight of this impact on Campbell was quite limited:-

"Manager Casework said: Do you feel that Campbell experienced or witnessed any of the physical abuse in the home?

The Father said: He was just walking he was quite young

The Mother said: But I know through the various courses that children can pick up on certain feelings, and moods and the likes and dislikes of the parent but I'm not offering the same situation as that time. ..."

105 The parents have identified at various times that there was a level of stress in the household that contributed to their abusive behaviour, however Ms Neville submits that there is no material before the court to demonstrate that the parents can meet and adequately manage a level of stress in a manner that is preferable to what they did previously. She pointed again to the interview with the Department's caseworkers in July 2010 when discussing Barry's health issues:

"Manager Casework said: I understand that is stressful by can you comment about the added stress that Campbell would bring to you

The Mother said: It wouldn't be

The Father said: I don't see it as an added stress

Manager Casework said: But do you recognise that if Campbell was to come home there would be a period of adjustment?

The Father said: I am aware of that, but we are looking forward to it and by that stage Campbell would be at school so that would assist us with his transition"

Ms Neville submitted that this exchange did not demonstrate any insight into what it would be like to have Campbell in the household with Barry again.

106 Ms Neville submitted that before accepting the establishment of significant change the court should have regard to whether there is an indication that if the same circumstances arose again how the parents would propose to deal with those circumstances.

107 In my view Mr Hunt and Ms Neville's submissions about this matter should be accepted. Johnstone DCJ's reasons for declining to vary or rescind the care order were largely their lack of insight into their past behaviour which led to their not satisfactorily addressing the issues that led to the removal of Campbell from their care.

108 The most recent affidavits attempt to demonstrate a level of insight not present in the affidavits filed in the Children's Court proceedings. But it is difficult to see that they demonstrate a significant change in relevant circumstance coming so close as they do to the casework interviews in July 2010, interviews that present a very different picture.

109 It is true that the parents have undertaken counselling and many more courses. However the evidence before me does not show that they would implement their learning if given the opportunity to parent Campbell.

110 In addition, the evidence does not really demonstrate how the parents recognise that having Campbell in their home again would be an adjustment, particularly in regard to how it would impact on Barry and their ability to care for him.

111 On the evidence before me, I do not regard there to be an arguable case regarding a change in relevant circumstances, which requires further consideration in a substantive hearing. I cannot see on the evidence before me that the parents' insight into their behaviour is arguably any different to that which they had before Johnstone DCJ.

112 Even if I were to take a different view about whether this fourth matter constituted a significant change in relevant circumstances, the same general consideration as apply in relation to the proposed adoption would cause me to decline to exercise my discretion to grant leave. This may change in the future if the adoption application does not proceed. But on this application leave should not be granted. The parties may apply to the Court to deal with cost consequences of this decision.

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Decision last updated: 21 July 2011