Supreme Court New South Wales

• Medium Neutral Citation: Re Greta [2012] NSWSC 294
• Hearing dates: 21.03.12, 22.03.12
• Decision date: 02 April 2012
• Before: Nicholas J

Decision

Par 1

• Catchwords: JUDICIAL REVIEW - certiorari - whether Children's Court failed to consider properly an application for leave to apply for rescission of a care order - whether open to determine whether significant changes in any relevant circumstances - whether failure to consider plans for the children - whether error on face of record
• Legislation Cited: Child and Young Persons (Care and Protection) Act 1998; Supreme Court Act 1970
• Cases Cited: Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163; Re Campbell [2011] NSWSC 761; S v Department of Community Services [2002] NSWCA 151
• Category: Principal judgment
• Parties: Ms B - plaintiff; Director-General, Department of Family and Community Services - first defendant; Minister for Family and Community Services - second defendant; Children's Court of New South Wales, Campbelltown - third defendant; Craig Harvey - fourth defendant; Greta, Isabella, Jack - fifth defendants
• Representation: Counsel: P R Glissan - plaintiff; G Moore - first and second defendants; Submitting appearance - third defendant; No appearance - fourth defendant; P J Braine - fifth defendants; Solicitors: In person - plaintiff; I V Knight, Crown Solicitor - first, second and third defendants; No appearance - fourth defendant; Rowley & Associates Solicitors - fifth defendants
• File Number(s): 12/17168

Judgment

1 On 22 March 2012 I dismissed the plaintiff's claim for relief by way of certiorari that the orders made by the third defendant on 24 November 2011 in respect of the fifth defendants' application for leave to apply for variation or rescission of care order file no(s) 428-430/10-001 be quashed. These are my reasons.

Background

2 The plaintiff is the natural mother of daughters "Greta" born in 2005 and "Isabella" in 2006, and a son, "Jack" born in 2009.

3 On 16 December 2010, by consent, the Children's Court (the court) made final orders (the care order) which, relevantly, ordered that:

"1 Pursuant to section 79(1)(b) of the Children and Young Persons (Case and Protection) Act an order placing the children under the sole parental responsibility of the Minister of Community Services for a period of six (6) months from the date of this order.

2 At the expiration of Order 1 and pursuant to section 79(1)(a)(ii) of the Children and Young Persons (Care and Protection) Act an order allocating joint parental responsibility of the children to their mother ## ## and the Minister for Community Services for a period of six (6) months.

...

5 That pursuant to section 73 the Children's Court accepts the form of undertakings as attached and signed by the mother for a period of 3 years ..."

4 The undertakings given by the plaintiff to, and accepted by, the court included:

"2 To work cooperatively with Community Services and allow access to the home;

3 To accept the guidance and directions of the Director-General;

...

9 To maintain a hygienic and child friendly environment;

...

13 To provide healthy and age appropriate nutrition for all the children;

...

15 To follow all reasonable recommendations in regards to routines and parenting as advised by professionals working with the family ..."

5 The first defendant restored both daughters to the plaintiff's care at her home at Rosemeadow on 19 January 2011, and the son to her care on 16 June 2011.

6 In about July 2011 the plaintiff commenced a relationship with Mr Shaun Botten with whom she had commenced communications over the internet some months before. Within a short time of their first meeting face to face, the plaintiff introduced Mr Botten to the children.

7 At a case meeting on 26 July 2011 with representatives of the Intensive Family Based Support Service the plaintiff was directed not to permit Mr Botten to stay the night at home, or to see the children there or in a public place. The plaintiff was directed to ask Mr Botten to leave the home pending completion of Police and identification checks.

8 At about 3.45am on 5 August 2011 the first defendant, by its delegate Ms Marama Nehua, removed the children from the plaintiff's home and placed them in foster care. According to the first defendant the removal was effected in the exercise of power under s 43(1) Child and Young Persons (Care and Protection) Act 1998 (the Act) because Ms Nehua was satisfied on reasonable grounds that the children were at immediate risk of serious harm, and the making of an apprehended violence order would not be sufficient to protect them. In particular, Ms Nehua was satisfied that the plaintiff was not appearing protective of the children in relation to Mr Botten, described as the plaintiff's partner. On that occasion Mr Botten was on the premises.

9 On 10 August 2011 the first defendant applied to the court under ss 90(1), (2) of the Act, for leave to apply for variation of the care order made on 16 December 2010.

10 On 15 August 2011 an interim order was made under s 69 of the Act placing the children under the care of the second defendant until each attained 18 years of age.

11 On 24 November 2011 the application was heard, and proceeded on the basis that it was for leave to rescind the care order, and that orders would be sought granting the second defendant parental responsibility for the children until each attained 18 years of age.

12 At the conclusion of the hearing leave was granted to the first defendant to apply for rescission of the final orders made on 16 December 2010. Procedural directions were made for the further conduct of the application. The interim order was continued.

Determination

13 Relevantly, the Act provides:

"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:

...

(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.

...

79 Order allocating parental responsibility

...

(3) The Children's Court must not make an order allocating parental responsibility unless it has given particular consideration to the principle in section 9 (2) (c) and is satisfied that any other order would be insufficient to meet the needs of the child or young person.

...

83 Preparation of permanency plan

(1) If the Director-General applies to the Children's Court for a care order (not being an emergency care and protection order) for the removal of a child or young person, the Director-General must assess whether there is a realistic possibility of the child or young person being restored to his or her parents, having regard to:

(a) the circumstances of the child or young person, and

(b) the evidence, if any, that the child or young person's parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care.

...

(5) The Children's Court is to decide whether to accept the assessment of the Director-General.

...

(7) The Children's Court must not make a final care order unless it expressly finds:

(a) that permanency planning for the child or young person has been appropriately and adequately addressed, and

(b) that prior to approving a permanency plan involving restoration there is a realistic possibility of restoration having regard to:

(i) the circumstances of the child or young person, and

(ii) the evidence, if any, that the child or young person's parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care.

...

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.

...

(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."

14 The plaintiff's claim for relief was based on the following grounds:

(1) That the court lacked evidence of the facts upon which the care order was made, and thus was unable to determine whether there had been a significant change in any relevant circumstances since the care order was made as required by s 90(2); and

(2) That as there was no evidence of the plans for the children, the court failed to comply with the requirement of s 90(2A)(d) of the Act that it must take into consideration such plans.

15 In a general sense, the plaintiff submitted that in granting leave the court erred in the exercise of jurisdiction in that it failed to apply the proper statutory criteria. As I understood it, the effect of the submission was that the court's determination was made on the basis of errors of law which appeared on the face of the record of the proceedings, including the reasons expressed for its determination (ss 69(3), (4) Supreme Court Act 1970).

16 The plaintiff's challenge is to be approached with regard to the principles expressed in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, pp 175, 176:

"Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and 'error of law on the face of the record.' Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it. In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to the 'record' of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record."

and (p 177):

"... jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case. Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case."

17 I turn first to the claim as to jurisdictional error with regard to the requirement of s 90(2).

18 In S v Department of Community Services [2002] NSWCA 151 Davies AJA (Heydon JA, Hodgson JA agreeing) said:

"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.

...

27 ... Section 90(2) uses the expression "a significant change in relevant circumstances". This requires a comparison between the situation at the time when the application was heard and the facts underlying the decision when the order was made or last varied."

19 In Re Campbell [2011] NSWSC 761 Slattery J explained:

"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."

He also observed (par 49):

"... that establishing significant change in a relevant circumstance is a necessary, but not a sufficient condition for leave to be granted."

20 The transcript of the leave proceedings on 24 November 2011, including the reasons for the grant of leave, were in evidence. It includes the oral submissions made by the legal representatives of the parties, including those made by plaintiff's counsel. The transcript refers to submissions on the evidence contained in the affidavits of Joanna Mancao filed 10 August 2011 and 5 September 2011, of Ms Nehua filed 11 August 2011, of the plaintiff filed 21 September 2011, and of Mr Botten filed 24 November 2011. These affidavits were in evidence in the present proceedings, and were referred to at length in the submissions made to me.

21 On the issue under s 90(2) the record of, and reasons for, the decision that there had been a significant change of circumstances are as follows (T p 25, l 30 - p 27, l 27):

"This is an application for leave that - leave to apply for the recision of a care order that was made in the Children's Court at Parramatta on 16 December 2010 of the application itself for leave is described as an application for variation that has been orally amended by Mr Meehan during the course of the submissions this afternoon to indicate that what is sought is an application to rescind an order and to put in place other orders granting parental responsibility to the minister in respect of all of the three children, ##, ##, and ##, until they are aged eighteen. There will need to be, if leave is granted, an amended application filed which sets out clearly those orders that are to be sought.

The background to the matter, briefly, is as I have said, that orders were made on a final basis in relation to the three children, ##, ##, and ##, at the Parramatta Children's Court by his Honour Judge Marion last year. The children's mother, Ms ##, appears in respect of this application. The children's father does not appear, Mr Meehan has appeared for the department, Mr Glissan of counsel, for Ms ## and Ms Rowley, solicitor, on behalf of the children. The department's application relies on a series of affidavits that are within the Court file and which have been read. For the mother's part, she relies on an affidavit sworn by her on 20 September 2011, along with an affidavit sworn by her fiancée, Mr Bottin [sic], on 17 November.

Those documents have also been considered by me.

S90 - I withdraw that. Following the making of the final orders last year and until the present time, as I read that order, parental responsibility has been and is, up until there had been an interim order in respect of these proceedings, continued to be shared by the department and Miss ##. Clearly, there was a view, as at December of last year, that the children's best interests would be served by them being rostered to their mother on conditions and that occurred with ## and ## being returned to her, as I read the file, on or about 19 January this year, about a month after the orders were made, and ## on or about 16 June, six months thereafter. Regrettably, ## remained in his mother's care with his sisters until on or about 5 August only, a period of some six or seven weeks, at which time all of the children were removed following a critical incident that is described in the affidavit of Ms Mancao sworn on 10 August 2011. S90 subs(2) of the Children and Young Persons Care and Protection Act provides that the Children's Court may grant leave - that is, it is a discretionary judgment for the Court - if it appears that there has been a significant change in any relevant circumstances since the care order was made or last varied.

Relevantly, Clause 6 of the Regulation provides that for the purpose of s92, factors which indicate a significant change in the relevant circumstances of a child or young person since a care order was made or last varied, include, but are not limited to, the following, relevantly: (a) The parents of the child or young person concerned have not met their responsibilities under an applicable care plan or restoration plan. That is, that things have not gone, putting it in layman's terms, as had been anticipated at the time that the order was made or that there has been some failure to comply with some or other condition or otherwise of the restoration mechanism. There must be a significant change, but it can be in any relevant circumstance or circumstances since the order was made. If I find that there has been a relevant change of significance, then I would need to turn to consider whether I would exercise my discretion, having regard to the factors contained within s2A of section - sorry, subs(2A) of s90.

I have concluded in this case that there has been a significant change in circumstances since the order was made, but in doing so, I have relied - I have come to that conclusion upon four bases which are in no particular order of priority or importance, but - and which are to be viewed in combination, one with the other. The first is the fact that the mother has re-partnered and that Mr Bottin [sic] is a presence in her life and in the lives of the three children. That itself seems to me to be a change of significance because it injects into the household of the subject children another adult who was not anticipated as being part of the children's household at the time that the original orders were made. His mere presence is, in my view, a factor of significant change. It does not seem to me, given the ages of the children, that it can be other than that. The second matter - factor I rely on is the evidence that is contained within annexure E to the affidavit of Ms Mancao sworn on 5 September 2011, being a document from the childcare centre at which ## had attended, both before and after restoration. I accept the submission of Ms Rowley that those documents indicate some deterioration in ## following his return to his mother's care.

Thirdly, the intensive family-based service report which is similarly annexed to that affidavit, whilst it does, as Mr Glissan fairly pointed out, indicate elements and factors which would suggest progress, there are also matters contained within it which demonstrate, in my view, a struggle by the mother in coping with the children. There are matters within the report which refer to an inability to identify risk so far as it relates to the children, a struggle by the mother in respect of matters pertaining to diet and nutrition and some lack of insight into her own need or psychological assistance. There is also the matter of the concern raised by the service in relation to the children calling Mr Bottin [sic] "Daddy" after a two-week relationship. That is corroborative of a lack of insight into the needs of the children, in my view, and is linked necessarily to the matters of the presence of Mr Bottin [sic] as a factor to which I have already made reference. The fourth factor that I have turned my mind to is the suggestion, and it cannot be put any higher than that on the evidence at this point I do not think, at least a suggestion which will need to be tested in the usual way that the mother had an awareness of sexual assault allegations as far back as May and that there was a lack of positive protective measures undertaken by her in the period from May until shortly before - at or about the time of removal. The evidence does not allow me to - at this point, to - and it would not be right to do so - to put it any higher than that, but it is a factor I take into account.

Having determined that there has been such a change in circumstances, I must now consider whether or not leave should be granted."

22 In deciding the plaintiff's claim it is fundamental to keep in mind that it does not involve an appeal or rehearing of the proceedings which led to the grant of leave, or to take into account that to a differently constituted court it may not have appeared that there has been a significant change in any relevant circumstances since the care order was made.

23 The terms of the reasons of the learned magistrate, in the context of the evidence and arguments, reflect a clear appreciation of the requirements of s 90(2). As it is self-evident from the record, it is unnecessary to further recite details of the matters taken into account which gave the appearance of significant change as his Honour held. It may be assumed that the learned magistrate took into account that in making the care order of 16 December 2010, the court was required to have regard to the provisions of ss 9(1), 9(2)(c), 79(3), 83(1), 83(5) and 83(7). Consideration of these provisions together with the matters in evidence to which express reference was made provided an ample basis for the necessary comparison to be made.

24 In my opinion, analysis of the transcript plainly demonstrates the careful fulfilment of the statutory requirement. As there was no judicial error on the part of the third defendant, the challenge on this ground is rejected.

25 I turn now to the issue under s 90(2A)(d) in respect of the mandatory requirement that the court take into consideration "the plans for the child".

26 The relevant passage of the reasons is as follows (T p 27, l 26 - l 32):

"... I must now consider whether or not leave should be granted. S2A sets out the matters I must take into account. I would add the words there; to the extent that they exist because I have to deal with the submission that Mr Glissan put in that regard. I will come to that in a moment. The nature of the application is one of recision and seeking an order that the children will, if leave were granted and the orders - the matter were finally ventilated to completion - that the children return to the care of the minister exclusively ..."

and (T p 27, l 40 - l 44):

"... The plans for the child - well I infer from the application that the plans for the children are that they be placed in long-term - a long-term placement. I do not have any other more detailed exposition of the plans for the children. However, I can infer from the application itself that that is what is to be sought."

27 The term "the plans" in sub-par (d) is not defined, unlike the terms "care plan" and "permanency plan" which are defined in s 3.

28 The plaintiff submitted that the court fell into jurisdictional error in that it accepted as a plan for the children under s 90(2A)(d) the first defendant's stated proposal to apply for an order granting parental responsibility for the children to the second defendant until they reached the age of 18. It was put that in order for the statutory requirement to be fulfilled it was necessary that there be evidence of a plan which contained a regime for the care of the children, absent which, as in this case, the requirement could not be met.

29 As a matter of construction, in context, the term "the plans" in sub-par (d) should be given its natural and ordinary meaning, and should not be understood as confined, for example, to care plans and/or permanency plans. Accordingly, in my opinion, the term may be reasonably understood to mean "the proposals" or "the schemes of action". Other than that the plans be plans for the child, the provision is silent as to content.

30 In my opinion the first defendant's proposal which the court took into account meets the description of, and was sufficient as, a plan for the children within sub-par (d). Accordingly, in my opinion, the learned magistrate was entirely correct in taking the proposal into consideration.

31 In any event, analysis of the relevant passage of the record demonstrates that the claim for certiorari is untenable. The record shows that the proposal was taken into account in fulfilment of the statutory requirement. As there was no judicial error on the part of the third defendant with regard to the application of s 90(2A)(d) of the Act, the challenge on this ground is rejected.

32 It is for these reasons that I made the order on 22 March 2012 dismissing the plaintiff's claim for relief by way of certiorari.

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Decision last updated: 05 April 2012