District Court New South Wales

• Medium Neutral Citation: TR v The Director General, Department of Family and Community Services [2013] NSWDC 236
• Hearing dates: 13 and 14 August 2013
• Decision date: 15 August 2013
• Jurisdiction: Civil
• Before: P Taylor SC DCJ

Decision

(1) Appeal granted.

(2) Set aside the decision of the Children's Court dated 30 November 2012.

(3) Grant leave to the parents under s 90(1) for an application for rescission or variation of the care order dated 25 July 2011.

(4) Remit the proceedings to the Children's Court for further hearing.

(5) No order as to costs.

(6) Note that given the earlier decision of the Children's Court and with the consent of all the parties, it would seem preferable for a different member of the Court to sit on the further hearing.

• Catchwords: CHILD CARE APPEAL - children, infants or minors - appeal from refusal to grant leave - rescission and variation of care orders - significant change in relevant circumstances - drug use by parents - mental health of parents - domestic violence - parenting skills - injuries to child
• Legislation Cited: Children and Young Persons (Care and Protection) Act 1998, s 7, s 8, s 9, s 82, s 90, s 91, s 93, s 150
• Cases Cited: In the matter of Campbell [2011] NSWSC 761; Re Louise and Belinda [2009] NSWSC 534; Re Tracey (2011) 80 NSWLR 261
• Texts Cited: Marien SC P, 'Care proceedings and appeals to the District Court' Paper presented at the Annual Conference of the District Court of New South Wales, 28 April 2011, Judicial Information Research System; United Nations Convention on the Rights of the Child (20 November 1989)
• Category: Principal judgment
• Parties: TR (father - applicant); DR (mother - applicant); Director-General, Department of Family and Community Services (first defendant); Minister of Family and Community Services (second defendant); T and K (children)
• Representation: Mr Harris (first and second defendants); Crown Solicitor's Office (first and second defendants); D J Chapman Solicitors (children); Grant & Co Solicitors (maternal grandparents)
• File Number(s): 2013/13329
• Publication restriction: Initials have been used in order to anonymise the children and parties.

Decision under appeal

• Date of Decision: 2012-11-30 00:00:00
• Before: Children's Magistrate Hawdon
• File Number(s): 148-149/2012

ex tempore Judgment

1 TR, the father, and DR, the mother, have two children, T, the daughter aged seven and K, the son, almost three. The father has a twelve-year-old child from a previous relationship who lives in Tasmania with his mother.

2 On 20 January 2012 Community Services caseworkers conducted a home visit arising from reported concerns about the son's health. The caseworkers reported a bruise on the son's head and other matters. The mother and father gave an explanation that the bruise resulted from the son's rocker being knocked over by the daughter accidentally and sought to explain the other matters. With the consent of the parents the son was taken to Gosford Hospital for tests where he remained for five days.

3 On 24 January 2011 the son was to be discharged. The treating paediatrician reviewed the test results, stated that the injuries were consistent with the version of events given by the parents, found the son to be alert and interactive, was not concerned about the initial failure to thrive and was happy for the son to be discharged.

4 However, the Casework Manager became aware of a skeletal scan that was said to confirm an old fracture of the left middle finger and raised other concerns. This caused the paediatrician to change his view about the discharge.

5 The skeletal survey of the son indicated a bony injury to the left forearm and left knee. A report before me indicated that the Head Radiologist suggested that the issues indicated by the skeletal survey could have been caused either by trauma or by a "normal variant", so a second paediatric radiologist's opinion was sought.

6 Upon review of x-rays, the paediatric radiologist had concerns about possible old multiple fractures in different stages of healing.

7 Both the father and the mother denied knowing of or causing any harm to the son, and suggested any fractures were due to "chalky bones" or possibly from the daughter's aggressive behaviour. There was some material indicating, in an interview with a caseworker, that the daughter had demonstrated how she had hurt the son whilst he was on his rocker and how a young relative had also hurt the son.

8 A consultant paediatrician, Dr John Erikson, reported on 10 February 2011 that non-accidental injury was the most likely explanation for the son's results.

9 Other concerns were also raised by caseworkers with the parents: drug abuse by the father and the mother, domestic violence and lack of parenting skills.

10 In the result, the son was not returned to the parents' care and on 18 February 2011, by order of the Children's Court, the son and the daughter were placed under the parental responsibility of the Director-General to reside with their maternal grandparents.

11 On 25 July 2011, with the consent of the parents, a permanent care order was made placing the son and daughter under the sole parental responsibility of the maternal grandparents until each child attained the age of 18 years of age. The Children's Court agreed with the Director-General's determination that "there is no realistic possibility of restoration of [the daughter and the son] to the care of either their mother...or father".

12 At the same time, the court approved the care plan for the son and the daughter. The care plan of the daughter raised in respect of the mother issues of domestic violence, drug abuse, parenting capacity including the capacity to engage support services and the capacity for change, and the vulnerability of the daughter to:

"physical harm and neglect...[and to] physical and psychological trauma due to the domestic violence between [the mother and the father] and the non accidental injuries he has already sustained due to his inability to physically remove himself from the environment."

13 This passage appears confusing as it appears to be speaking about the father because of the reference to the male pronouns "he" and "his" and because there is no suggestion that the daughter suffered "non accidental injuries". On closer analysis the material appears to be a mistaken transposition of the material from the son's care plan into the daughter's.

14 The daughter's care plan also refers to the father's relationship with the mother, recording that the father had denied any physical abuse as he had "only pushed her once" which was apparently either in 2007 or 2009. Reference was made to reports to police of domestic violence and physical abuse and to the father's behaviour of "yelling to the world". Reference was also made to the father taking medication, namely Afromel and Seroquel for post-traumatic stress disorder and conversion syndrome, and also to his attempted self-harm and his verbal abuse of the mother when not on medications. Reference was also made to the cannabis use of the father although this was said to be decreasing. The father's abstinence from cannabis, presumably as at 25 July 2011, the date of the care plan, was said to be "not long enough to determine whether [the father] will sustain from drug use over a long term period".

15 The care plan for the son was not dissimilar to that of the daughter although it gave more detail of the parents' past cannabis consumption. It appeared to accept that the mother had "stopped using cannabis" and indicated that the parents had previously shared equally the parental responsibility for the son. The son's care plan under the heading "Critical Incident" described concerns of "failure to thrive, multiple bruises of varying ages over head and limbs, social issues [which were unidentified], healing laceration to chin and swollen left middle finger". Significantly, the report also asserted that the son had suffered nine separate fractures, which were said to be non-accidental, and unexplained by the parents.

16 In about November 2012 the parents applied for leave to apply for rescission or variation of the care orders. This application was opposed by the Director-General of the Department of Family and Community Services, by the son and daughter's independent representative and by the maternal grandparents, and was dismissed. I will return to the reasons for that dismissal in the course of this decision.

17 The opposition by the Director-General, the grandparents and the son and daughter's independent representative to the parents' application continued before me, on the same grounds.

18 On 21 December 2012 a summons seeking a rehearing of the matter was filed.

19 Care and protection of children is a subject of the Children and Young Persons (Care and Protection) Act 1998. Sections 8 and 9 of the Act provide guidance and direction although pursuant to s 7 that guidance and direction does not "create, or confer on any person, any right or entitlement enforceable at law". Sections 8 and 9 of the Act provide:

"8 What are the objects of this Act?

The objects of this Act are to provide:

(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."

"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."

20 Section 91 of the Act deals with appeals. It provides:

"91 Appeals

(1) A party to proceedings who is dissatisfied with an order (other than an interim order) of the Children's Court may, in accordance with the rules of the District Court, appeal to the District Court against the order.

(2) An appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence on which the order was made, may be given on the appeal.

(3) Without limiting subsection (2), the District Court may, instead of taking fresh evidence, decide to admit as evidence the transcript of proceedings before the Children's Court and any exhibit tendered during those proceedings.

(4) In addition to any functions and discretions that the District Court has apart from this section, the District Court has, for the purposes of hearing and disposing of an appeal, all the functions and discretions that the Children's Court has under this Chapter or Chapter 6.

(5) Without limiting the generality of subsection (4), the District Court may confirm, vary or set aside the decision of the Children's Court.

(6) The decision of the District Court in respect of an appeal is taken to be the decision of the Children's Court and has effect accordingly.

..."

Accordingly, I am required to redetermine the application for leave made to the Children's Court.

21 Application for leave for rescission or variation of care orders is dealt with in s 90 of the Act. It relevantly 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.

...

(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.

..."

22 Section 90(2A)(f) refers to reports under ss 82, 85A and 150. Section 85A has no application. Sections 82(1) and 150(1) provide:

"82 Report on suitability of arrangements concerning parental responsibility

(1) The Children's Court may, when making an order in any care proceedings (the relevant proceedings) allocating parental responsibility of a child or young person to a person (including the Minister) other than a parent, order a party to the relevant proceedings to prepare a written report concerning the suitability of the arrangements for the care and protection of the child or young person.

..."

"150 Review of placements effected by order of Children's Court

(1) For the purpose of determining whether the safety, welfare and well-being of a child or young person who has been placed in out-of-home care by an order of the Children's Court is being promoted by the placement, the designated agency having responsibility for the placement of the child or young person is to conduct a review of the placement in accordance with this section.

..."

23 The matter whether the "applicant has an arguable case" under s 90(2A)(e) raises questions not merely about leave to apply for rescission or variation but about the rescission or variation itself. This enlivens the considerations referred to in s 90(6) of the Act, which provides:

"(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."

24 Thus, s 90 appears to me to raise the following matters for consideration:

(1) whether there has been a significant change in any relevant circumstances since the care order was made (s 90(2));

(2) the nature of the application (s 90(2A)(a));

(3) the age of the son or daughter (ss 90(2A)(b) and 90(6)(a));

(4) the length of time the son and daughter have been in the care of their present carer (ss 90(2A)(c) and 90(6)(c));

(5) the plans for the child (s 90(2A)(d));

(6) the suitability of the arrangements for the care, protection and welfare, safety and wellbeing of the child;

(7) the wishes of the son and daughter and the weight to be given to those wishes (s 90(6)(b));

(8) the strength of the son and daughter's attachments to the birth parents and the present care givers (s 90(6)(d));

(9) the capacity of the birth parents to provide an adequate standard of care for the son and daughter (s 90(6)(e));

(10) the risks to the son and daughter of psychological harm if present care arrangements are varied or rescinded (s 90(6)(f));

(11) the culture of the son and daughter and those with present or past parental responsibility for the child;

(12) the least intrusive intervention in the life of the son or daughter (s 9(2)(c)); and

(13) any other matter of relevance given that the list of matters in either subss (2A) or (6) of s 90 do not appear to be exclusive.

25 I note that under s 90(3) an application may be made by the mother and father because they are persons "from whom parental responsibility" for the son and daughter was removed under s 90(3)(d).

26 Further, I consider that the mother and father have a "sufficient interest in the welfare" of the son and daughter and thus the provisions of s 90(4) do not arise. No party contended to the contrary.

27 Finally, the hearing before me proceeded by consent on the basis of the material before the Children's Court together with further affidavits read and evidence tendered. This appears to be within the ambit of the procedure contemplated by s 91(2) and (3) of the Act. There was no cross-examination of deponents or other witnesses. Appearing before me were the father and mother and legal representatives of each of the Director-General, the children, and the maternal grandparents.

28 The paternal grandmother was also present by consent of the other parties as a person "directly interested" in the proceedings under s 104B of the Act and her affidavit was read in the proceedings although she made no separate submissions.

29 I note that pursuant to s 93(3), subject to any ruling I make, I am not bound by the rules of evidence. I made no relevant ruling. However, I did decide that as no party was seeking to cross-examine and as the two appellants were unrepresented and thus making submissions on their own behalf that any matters they raised in submissions would be regarded as being further factual material that would, if relevant, be considered in a manner analogous to evidence. No party took any issue with this course.

(1) SIGNIFICANT CHANGE IN RELEVANT CIRCUMSTANCES (s 90(2))

30 The existence of a significant change in relevant circumstances is more than a matter to be considered before granting leave to rescind or vary the care order. It is the precondition to the power to grant leave. Thus by s 90(2A) of the Act unless I find a significant change in relevant circumstances since the care order was made on 25 July 2011 I cannot grant leave.

31 A number of matters appear to be agreed upon by the various parties to be relevant circumstances. They were the matter of the drug use by the parents, the mental health of the parents, the domestic violence of the parents, the parents' parenting skills and the injuries received by the son. The parents' relationship and indeed other relevant considerations listed above must also be "relevant circumstances".

32 I must consider whether there was a change in these matters.

(A) DRUG USE BY THE PARENTS

33 It was common ground that the parents had a cannabis problem up until about early 2011. There is reference in the care plan that the parents had decreased, perhaps eliminated, cannabis consumption by 20 July 2011. They had submitted to regular urinology tests and there was at that stage one positive test detecting cannabis and a number of tests manifesting a negative result. As noted above, at this stage the Director-General submitted that the period of abstinence was not sufficient to establish that the abstinence was permanent.

34 Regular tests have continued to the present. Further, the father and the mother have sworn affidavits attesting that they have ceased all cannabis use. Some complaint was made of a failure of the tests to plainly establish a "chain of custody" and that the sample provided was not on a "random" date so as to call into question whether the results fairly reflected the cannabis use or lack of cannabis use of the parents. I do not think these challenges are made out. In the absence of some other material that would positively identify the defects in the test results, I am persuaded on the balance of probabilities to accept the test results (which were supported by the testimony of the parents) as a reliable record of the performance of the father and mother in respect of cannabis use.

35 Further, the Director-General submitted before the Children's Court "proving cannabis use has ceased is not of sufficient significance". This indicated, as did the submissions before me, that the Director-General's primary concern was that the prospect of a relapse remained. It was submitted the period of abstinence was not sufficiently long compared to the apparently lengthy period of cannabis consumption before 2011.

36 Related to this matter is that one test in November 2011 positively detected the presence of cannabinoids in the urine. The parents sought to explain this result by asserting that it was caused by the unintended consumption of marijuana contained in cookies at a party. The circumstances surrounding this test leave me unpersuaded of the parents' explanation. I have indicated a willingness to accept the reliability of the test results and that willingness extends to those results that are not so favourable to the parents. In the result, I am persuaded that on at least one occasion after the care order was made the father and the mother have used cannabis. However, it does not appear to be disputed by the other parties, and I accept, that there has been a marked reduction in the use of the drug approaching total abstinence in a period now extending beyond two years.

37 Consumption of a significant quantity of marijuana by both parents was a matter referred to in the care plan in July 2011. With this in mind, abstinence or near abstinence is to my mind both a "significant change" and a change of a "relevant circumstance". Accordingly, I am of the view that the requirement stated in s 90(2) of "a significant change in any relevant circumstances since the care order was made or last varied" is satisfied.

(B) MENTAL HEALTH OF THE PARENTS

38 The unchallenged evidence before me indicated that the father, on the advice of his psychiatrist, Dr Cassidy, has ceased taking medication to deal with his stress disorder and depression. A report dated 21 February 2013 from a clinical psychologist said the father reported all scores in the normal range for depression and stress and similar results for anxiety. When this is compared to the adverse references to the father's mental health in the care plan in July 2011, it is again a significant change in a relevant circumstance. The fact that these results were obtained in circumstances where the father might be expected to suffer stress associated with the continuance of this appeal and the absence of his children underlines the significance of the change.

39 Other material before me shows that the father has completed courses in graphic design and in operating excavation equipment and a course related to preventing drug relapse. All this material supports the submission of the father having better mental health.

40 The mother did not appear to manifest mental health problems prior to January 2011 although she did after the children were removed from her care.

41 On 3 May 2011, prior to the care order, the mother reported extremely severe levels of depression, anxiety and stress. By 20 February 2013, the mother's depression, anxiety and stress were reported by the clinical psychologist to have "all reduced to the moderate level". She had, according to the report of the psychologist, lost weight, become fitter, healthier and was engaging in bicycle riding, swimming and walking. In this period the mother had met her biological mother (not the maternal grandmother) and discovered that she was a "forced adoption".

42 The mother had completed an IT course and a drug relapse prevention course. She had commenced a veterinary nursing course and had met new friends whilst jogging. All of these matters would seem to support a significantly improved mental health compared to that which existed in July 2011.

43 The Children's Court was not persuaded of "a significant enough change in relation to the father's mental health". Although no particular adverse matter was identified it is clear that much of the material before me was not before the Children's Court, including the psychologist's tests and report of 2013.

44 In my view, the improved mental health of the father and the mother represents a significant improvement in a relevant circumstance since the care order.

(C) DOMESTIC VIOLENCE

45 The relationship of the father and the mother commenced more than eight years ago. They have been married for more than 10 months. There are no reports of domestic violence in the past two years between them. Whether this is a significant improvement in their relationship over that period is complicated because the parents appear to dispute that they had a domestic violence problem prior to 2011.

46 It was not established that there was any serious physical abuse between the mother and the father. There were some loud arguments, yelling and verbal comments that would readily qualify as verbal abuse although these events, observed during the earlier years of the relationship, seem to have moderated to some degree prior to 2011.

47 The issue of domestic violence was referred to in some detail in the care plan in July 2011.

48 The only matter relied upon in the past 18 months as an instance of domestic violence seems to be an argument between the parents and the grandparents some months ago. I do not regard this as falling within the category of "domestic violence" since the parents and the grandparents do not share a residence.

49 The Director-General submitted before the Children's Court that the parents had not "completed any course addressing domestic violence" and "are not able to demonstrate any change at all in relation to domestic violence". This submission appears to ignore the history and the absence of any reports of recent domestic violence. Further, the submission is weakened by other submissions of the Director-General (in respect of parenting skills) to the effect that it is not enough to do the courses, one must demonstrate a change in behaviour.

50 The Children's Court relied upon the absence of counselling by the parents in relation to domestic violence. It referred to one event as "Ms Perry's [a Departmental Officer] affidavit states that ... the father, disclosed to her that he has pushed the mother and has yelled at her in the period since 2009" (my emphasis). In fact the affidavit said, "in 2009". The other evidence before me raises a doubt about whether this pushing incident occurred in 2009 or earlier in about 2007. In any event, I do not accept that this one incident fairly represents the domestic relationship between the father and the mother as shown on the evidence before me.

51 In my view, the parents have demonstrated behaviour different from that represented in the care plan and that is sufficient to show a significant change in respect of a relevant circumstance.

(D) PARENTING SKILLS

52 The parents have completed a PPP parenting course that was asked of them. In addition, I was informed that the father's twelve-year-old son, who lives in Tasmania, and is disabled by autism, has spent time with the parents about four times per year with an average stay of about one month. No adverse reports have emerged from these visits. Reference to the disabled child spending time with the parents was not referred to in the material before the Children's Court.

53 As I indicated earlier, the Director-General stated before the Children's Court:

"Courses may have been enrolled in and attended, however attendance has not translated into a change for the better in either parent's parenting capacity. There has been no significant change".

In that submission the Director-General appears to rely upon a statement by the (maternal) grandmother that "The parents require prompting with their care of the children and spend little time engaging with them". At the time of the Children's Court these visits had all occurred at the grandparents' home in the presence of the grandparents. The visits lasted for about one to one and a half hours and occurred once per fortnight. In circumstances where the grandparents opposed the parents' application, where the application has the result of imposing a burden of, among other things, costs upon the grandparents and the potential ultimate relocation of the children, and where I have not been favoured with hearing from the grandparents in this hearing, I have some reservations about according too much weight to this assessment by the grandmother, notwithstanding the Children's Court's reference to Elizabeth Perry's recitation of this evidence.

54 The parents have completed the parenting course, minded for significant periods the father's disabled son, improved their mental health, apparently overcome their drug problem and have had no reported domestic violence for several years. In the absence of any adverse material these matters have demonstrated to me adequate parenting skills and it should not be a factor disqualifying them from a grant of leave. It is a significant change of a relevant circumstance.

(E) THE SON'S INJURIES

55 All parties accepted that this was the most significant factor in this application. This is not to negate the relevance of other significant changes in relevant circumstances. But the son's injuries have the capacity to be a factor that persuades me that, notwithstanding other changes, I should not allow the appeal. I readily accept that it is a most crucial matter. It is significant in relation to whether the parents have an arguable case under s 90(2A)(e) and to the question concerning the care, protection, safety, welfare and wellbeing of the son particularly, and also the daughter.

56 Determining the existence of the son's injuries is not straightforward. As noted, the son was checked both by ambulance officers when an ambulance was called by the parents and subsequently at the hospital by a paediatrician. The bruising and cuts, superficial or otherwise, were twice professionally examined. Those medical professionals, having sought and heard explanations from the parents about the injuries, did not object to the parents continuing care. In the absence of some further relevant material, in my view the Court should be cautious in attributing greater significance to those matters.

57 Until the issue of the fractures arose no objection was raised to returning the son to the parents' care. In these circumstances, it seems to me that the existence of the fractures is crucial.

58 A number of medical professionals have said things to the Department or to other professionals about the alleged fractures. Before me I have only reports from three medical professionals.

59 First, dated 10 February 2011, an unsigned report to no particular address but containing the letterhead of Dr John Erikson, a paediatrician at Gosford Hospital, who noted that the parents called the ambulance on 20 January 2011, that the ambulance officers after examining the baby reassured the parents that the child did not need to be taken to the hospital and left the child, the son, with the parents. The report indicates that when the son was subsequently taken to the hospital and the bruising was investigated and examined, an ECG was performed which was normal, blood tests showed slightly low iron count but otherwise normal.

60 The affidavit of Ms Perry, the Departmental Officer, indicates that at this stage "the treating paediatrician stated that he was not concerned with the initial concerns of failure to thrive and was happy for [the son's] discharge to occur from Gosford Hospital." The report then refers to x-rays seen by Dr Hanson and Dr Chris Wong, a paediatric radiologist. Dr Erikson had discussions with Dr Wong. Dr Erikson's report indicates certain fractures, perhaps or probably based on information conveyed by Dr Wong. I have been provided with no report by Dr Wong although there are some notes by Dr Hanson whose specialty remains unknown. Dr Erikson concluded that "non-accidental injury the post [sic, presumably "most"] likely cause of the injuries to this boy". Although this report supports the existence of fractures, it is unclear whether the existence of the fractures is the opinion of Dr Erikson or he is reporting an opinion conveyed by Dr Wong or Dr Hanson.

61 The second expert report comprises, first, an undated, unsigned report on plain paper with no letterhead that is attributed to Dr Paul Tait. Dr Tait is said to be a consultant paediatrician in the Child Protection Unit at Westmead Hospital. The author claims to have had available Dr Erikson's report, a photocopy of the hospital notes, the CD of x-rays, reports by the radiologist at Gosford and a note from the Bay Village Medical Centre. The author referred to a second opinion by Dr Wong although that was not provided to the author. The author, presumably Dr Tait, said, "I agree with the conclusion of Dr Erikson that these injuries are most likely the result of harm caused to [the son]."

The report also stated:

"It is difficult to age the skeletal injuries accurately and this is not my area of expertise. The fracture to the middle finger appears to be in the active phase of healing and therefore at least a week of age: Dr Erikson's report appears to draw from Dr Wong's expertise in attempting to age the fractures that are interpreted as being of different ages.

Despite their rather convincing appearance, I remain a little circumspect in regards to the significance of the changes seen on x-ray of the distal ends of the radial and femoral metaphyses, in the absence of any periosteal new bone formation and convincing changes on nuclear medicine scan. I would like copies of the nuclear medicine bone scan to be reviewed by Prof. Rob Homan [sic] Giles at this hospital. I would suggest follow-up xrays to demonstrate the healing process.

I say this as the bone scan is particularly sensitive to injury particularly ribs but maybe more difficult to interpret when the bone injuries involve the growing regions of bones as is the case here.

Recommendations:

1) Further assessment of the family and especially issues of mental health, possible drug and alcohol problems and domestic violence in the parents and their relationship.

2) The health of the attachment between [the son] and his parents.

3) Monitoring of [the son's] growth and development by a paediatrician. We are awaiting a screening test to exclude other metabolic bone disease.

4) Repeat x-rays of the regions under suspicion, that is, the distal metaphyses of the forearms and femora and proximal tibiae looking for new bone formation."

62 The representative of the Director-General asserted that the date this report was prepared was 28 February 2011. A further report signed by Dr Tait on letterhead and dated 16 May 2011 was in the material before me. That report stated that it is a "brief update on the radiological findings of [the son]". Dr Tait referred to having "reviewed the x-rays in consultation with one of the senior radiologists here at the Children's Hospital at Westmead."

63 I note that the senior radiologist was not identified. The report continues:

"There is a definite change in the appearance of the distal ends of both femurs which suggests healing of what was previously interpreted as fractures. There is little evidence of any new bone formation on any of the x-rays seen in either the initial or subsequent examinations suggesting that the previous changes were relatively chronic in nature as reported by Dr Wong.

We could not see any convincing evidence of the rib fracture reported by Dr Wong.

I agree that there are abnormalities of the distal left radius are indicative of a fracture.

The absence of any new bone formation or periosteal reaction at the sites identified as abnormal in the initial sequence of x-rays is [sic]. I was initially confused by the lack of any new bone formation that is the classical finding after significant bone trauma or fracture. However in the classic metaphyseal lesions as described by Klineman, there is little or no significant haemorrhage into the fracture site, except perhaps into the medullary space which he postulates is rapidly resorbed as it is already a highly vascular area. The absence of new bone formation makes aging of injuries at these sites more difficult.

There are several reports in the literature indicating that the nuclear bone scan and the skeletal survey have false negative results. This means that fractures and/or bone injury can be missed by both techniques. It would appear the nuclear bone scans are less reliable in detecting fractures or bone injury at the metaphyseal region of growing bones and the skull whereas the skeletal survey x-rays are less reliable with rib fractures.

I am therefore largely in agreement with Dr Wong's initial conclusions though am unable to identify the rib fracture.

..."

64 The penultimate paragraph of the above quote manifests an attempt to explain the inconsistent results from nuclear bone scans and a skeletal survey. What prompted this comment is not revealed. No mention is made of Professor Robert Howman-Giles, who was referred to in the previous report in connection with the nuclear bone scan.

65 On 23 March 2012 the parents' lawyer wrote to the Department referring to Dr Tait's suggestion that Professor Howman-Giles should review the nuclear medicine bone scans and said:

"One of the significant factors causing our clients in agreeing to the care plan was the advice by the Departmental officer at the conference that DOCS had received a report from Professor Howman-Giles which allegedly confirmed Dr Erikson's conclusion of fractures.

We also note that at the conference we were informed we would receive a copy of this report. To date no such report has been provided.

We request you forward a copy of the report of Professor Howman-Webb [sic] at your earliest convenience."

66 No response was received until 11 October 2012 when a letter from the Department was sent to the solicitor that said:

"When the matter was last at court you mentioned you were after a medical report that was expected sometime after final orders were made. Of today I was provided with a letter from Professor Giles to Dr Tait dated 21 March 2012. I have enclosed a copy of that letter."

That letter constitutes the third medical report before me. It is a report from Dr Howman-Giles, the doctor referred to in the first Tait report. It is signed, dated and addressed to Dr Tait and contains the professional details of the professor, as a clinical professor and Head of the Department of Nuclear Medicine, presumably at Westmead Hospital. The letter provides as follows:

"I reviewed the total body bone scan performed on this patient on 25.1.2011 by Gosford Nuclear Medicine.

TOTAL BODY BONE SCINTIGRAPHY:

The study performed included blood pool scans over the entire body and these scans were normal. The delayed scan over the whole body including oblique views of the thoracic cage showed no evidence of focal increased osteoblastic reaction. The limbs in particular the distal forearms were rotated and not symmetrical so it is difficult to compare both sides but no abnormality was seen.

Opinion: The bone scan is considered within normal limits with no evidence of fractures.

..."

67 Professor Howman-Giles' report is not dated March 2011, as the Tait report might lead one to expect but is dated 21 March 2012.

68 These circumstances cause me some unease. The letter from the parents' solicitor gives some support to the parents' assertion before me that the care order was agreed to because of the Professor's confirmation of fractures. The parents asserted that they did not cause the fractures but if their son had fractures whilst in their care, then they accepted that they were delinquent, perhaps because of their cannabis use. In those circumstances, they felt that they could not in July 2011 resist an argument that the son should be placed elsewhere.

69 But the documents indicate that Professor Howman-Giles had a contrary view, see his report dated 21 March 2012. The first Tait report foreshadows advice from the Professor and the second seeks to explain, without identifying, the Professor's contrary view.

70 More importantly, the whole question of fractures remains in a position of some uncertainty. Professor Howman-Giles appears to be the pre-eminent expert in bone fractures amongst those consulted, and he has opined against the existence of the fractures. Where the experts have not met to resolve their differences and there has been no cross-examination or other exploration of the differences of medical opinion or of the circumstances of the reports, the matter cannot be the subject of any firm conclusion, save for one. The letter of Professor Howman-Giles is a significant change of a relevant circumstance, indeed perhaps the most relevant circumstance.

71 The Children's Court dealt with this matter as follows:

"The parents say that they have addressed these issues which led to their children coming into care. As a significant change they rely on the misdiagnosis of the alleged fractures. The parents argue that it was the presence of the alleged fractures, which they could not explain, which led them to consent to final orders being made. However, the fractures were not the only injuries that were observed. At the time of his assumption [the son] was less than three months old. He was immobile, meaning he was not walking or crawling and he would not have been able to sit alone. He had a bruise to his head, cuts and scratches on his nose and a cut to his lip and a fractured finger. At the very least this suggests a lack of supervision. The parents are unable to provide a satisfactory explanation for these injuries."

72 This determination appears to accept the challenge to the existence of the injuries as supported by the Howman-Giles report.

73 In my view, that doubt about the existence of the fractures is a significant change to the circumstances compared to those existing in the care order, where the care plan refers under the heading "Critical Incident" to the nine asserted fractures.

74 Accordingly, for all these reasons, I am of the view that the preconditions in s 90(2) are satisfied.

75 It does appear to me that there has been a significant change in relevant circumstances.

(2) OTHER CONSIDERATIONS (S 90(2A))

76 I come to the second consideration in the list of considerations, namely the nature of the application.

77 The application is for leave to rescind or vary the care order. It appears to me that paragraph (a) of subs (2A) referring to "the nature of the application" requires more than considering that this is an application for leave to rescind or vary a care order, for every application under s 90(2A) has this characteristic. I think this consideration requires that I take into account, which I do, that the application is by the parents who no longer have the parental responsibility over the two children the subject of the application.

78 The third consideration is the age of the children. The daughter is seven and the son is nearly three years of age. This factor has significance in assessing the weight to be given to the children's wishes and is relevant to what is in the best interests of the children.

79 The fourth consideration is the length of time the son and daughter have been in the care of the grandparents. This period is two and a half years, which is most of the son's life and about one third of the daughter's life. Again, this is a matter impacting upon what decision most favours the welfare of the children.

80 The fifth consideration is the plans for the children. The present plan for the children is for them to remain with the grandparents until they have reached the age of 18. The parents' application is ultimately to obtain a restoration of the children into their care.

81 The sixth consideration is the suitability of the present care. I have not been directed to a report that is specifically a report under s 82 or s 150 as s 90(2)(f) refers. However, much of the material advanced in this case is directed to the suitability of the present care as against the suitability of the care by the parents. Criticism has been voiced by the parents about the present care of the grandparents.

82 This criticism has arisen, in particular, because the grandparents have utilised corporal punishment either by smacking with the hand or using a wooden spoon described by the children as "Nanna's Little Helper". Further, the smacking was evidenced to occur on the legs, bottom and back. The material before me from the grandmother indicates that the grandparents accept that they should not adopt any form of physical punishment and have in recent times ceased to adopt these methods once they were so instructed by the Department.

83 However, this matter, the apparent provision of the drug, Ritalin, to the daughter in recent times and the daughter's problems with speech and hearing have all been the subject of concern expressed by the parents. The parents have also expressed concern about an adult relative who has a psychiatric condition and who now also lives with the grandparents. There is some although not persuasive evidence that this relative has also smacked the children.

84 Ultimately, I have not given much weight to these matters. There is no real challenge to the adequacy of the care given by the grandparents. They certainly appear to be doing what can be done to assist the daughter's progress by engaging a speech pathologist and a psychologist to work with the daughter.

85 The seventh consideration is the wishes of the children. There is some material before me indicating a wish of the children, perhaps only expressed by the daughter, of a desire to return to the parents' care. There was no material drawn to my attention suggesting a contrary desire. However, I do not think I can give this material any real weight for two reasons.

86 Obviously the views of the son, even if they could be expressed, could not be given any weight because of his age. I think that the age of the daughter is also such that I cannot give it any real weight.

87 The second reason is that the nature of the evidence of the children's wishes. It comes from the parents who purport to recount things said to them. In circumstances where the parents seek ultimately to obtain parental rights in respect of the children, the weight of this hearsay material is diminished. The prospect of putting forward, intentionally or unintentionally, only that evidence that favours them on this point is, in my view, too great to give the material any real weight.

88 The eighth consideration is the strength of attachment. I was not favoured with any expert advice from a person such as a child psychologist about this. It cannot be doubted that the son's attachment to the grandparents would be greater than to the parents because of the length of time and proportion of his life that he has lived with them. The same conclusion may well be able to be reached in respect of the daughter, although not to the same extent and counter-balanced to some degree by her living with her parents for her first four to five years and also by the fortnightly visits by her parents.

89 These visits would not only preserve the close attachment of the daughter to the parents, but also result in the development of some continued closeness with the son.

90 I note that the parents have indicated that the time allowed each fortnight limits their ability to bond with their children. That may be a concession that the attachment of the children to them is not so great as they would prefer.

91 The ninth consideration is the capacity of the parents. I have dealt with the evidence suggesting significant progress having been made by the parents in improving their relationship, improving their parenting skills, acquiring further skills in an attempt to improve their employment prospects, avoiding the use of cannabis and generally improving their physical and mental health.

92 All these matters are likely to improve the capacity of the parents to provide an adequate standard of care for the children. Employment by at least one of the parents would further enhance that capacity but neither parent has been employed for any substantial period.

93 In my view, subject to the question of the fractures, the parents have established an arguable case that they can provide an adequate standard of care for the children.

94 The tenth consideration is the risk of psychological harm. I infer that any change of placement will likely produce some difficulties for the children, requiring adjustment, although I do not have evidence concerning that matter. A psychologist's report concerning the daughter did not deal with the matter of a potential change of placement but only with the matters that could assist the daughter's learning and progress.

95 This consideration in the Act does not specifically deal with the risk of physical harm, but the risk of physical harm must be a powerful consideration. If I were persuaded that the injuries to the son were inflicted upon him by the parents, the parents' prospects of the children being returned to them would be limited, if not impossible, whilst ever the physical harm was denied.

96 Indeed, if the parents deny the existence of the injuries proven to have occurred then even if the injuries resulted from other persons while the son was in the parents' care, a denial of their existence would still raise serious concerns in my mind, concerns that are ameliorated but not entirely removed by the changes the parents have made.

97 But in this case the parents rely upon the report of Professor Howman-Giles and dispute the injuries. If it is established that the fractures did not occur, then the concern about risk of physical harm to the children must be significantly diminished.

98 In my view, when assessing whether a case is arguable, I must assume in the parents' favour on a contested factual matter that is supported by credible evidence. I have considered the decision of In the matter of Campbell [2011] NSWSC 761 at [43] to [57]. In my view, there is an arguable case that the fractures did not occur.

99 The eleventh consideration is cultural matters. I have taken into account the father's Maori culture and the likelihood that the children's cultural ties to the father's heritage will be increased by greater parental involvement. However, because the father continues to see the children regularly, I do not regard this factor as a significant one in the particular circumstances of this case.

100 The twelfth consideration is the intervention principle. In Re Louise and Belinda [2009] NSWSC 534, Forster J at [54] said, with respect to the operation of the least intrusive intervention principle in s 9(2)(c) of the Care Act:

"In my opinion, the section is ambulatory. In the case of a care application made under s 60 of the Act, it has the effect of requiring the court to be reluctant to remove a child from its natural parents unless there is a compelling reason to do so. On the other hand, where an application is made not under s 60, but under s 90, for the rescission or variation of a care order, the subsection has a different effect. In that case, the least intrusive form of intervention would normally mean not interfering with existing care arrangements. Needless to say, the force of the requirement imposed by s 9(d) will vary from case to case, and a court will undoubtedly have regard inter alia to the strength of the respective bonds that a child may have with his or her natural parents and his or her foster carers."

101 The principle was dealt with in the Court of Appeal, recently in a case of Re Tracey (2011) 80 NSWLR 261. In Re Tracey, Giles JA, with whom Spigelman CJ and Beazley JA agreed, said that this explanation by Forster J as to the operation of s 9(2)(c) was erroneous. The least intrusive intervention principle has no application when it is not necessary to take action to protect a child from harm. Giles JA said at [79] that the principle's 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"

Giles JA said: "There must be a prospect of harm if action is not taken, and the question is then the nature of the action."

102 Accordingly, if there is no risk of harm by the parents or grandparents, then the principle has no application.

103 Re Tracey is also important for another reason. The Court of Appeal found (per Spigelman CJ and Beazley JA) that the trial judge was in error in failing to take into account as a relevant consideration in exercising her discretion under s 90 Australia's treaty obligations under the United Nations Convention on the Rights of the Child (20 November 1989). The case involved a mother who was to be deported to Cambodia following her conviction for drug offences. If a child remained in the care of the Minister, the child would therefore have no contact with her mother, as the child was to remain in Australia. In finding that the judge was in error in not having regard to the Convention, Spigelman CJ referred particularly to Article 7.1, which provides in part that a child has a right "to be cared for by his or her parents".

104 Although the paramountcy principle contained in s 9(1) of the Children and Young Persons (Care and Protection) Act 1998 partly reflects Article 3.1 of the Convention, the decision in Re Tracey requires the court to take into account all relevant articles of the Convention in determining what is in the best interests of the child, including Articles 3.1, 3.2, 5, 9.1, 8(1) and 29 (see Marien SC P, 'Care proceedings and appeals to the District Court' Paper presented at the Annual Conference of the District Court of New South Wales, 28 April 2011, Judicial Information Research System).

105 The right of the children to be cared for by their parents is a matter relied upon by the parents in this case.

106 Finally, there are other relevant matters. I have also taken into account the apparently greater financial capacity of the grandparents to meet the added professional costs that the daughter may face with her speech and learning challenges. Of course the benefit to the daughter of that greater financial capacity need not cease with a change of parental responsibility but it is a prospect that I should consider.

107 I also consider the challenges to the relationship between the grandparents, on the one hand, and the parents, on the other. Obviously the better that relationship the better it is for the children. However, it is not a matter that seems to me to point for or against an arguable case for rescinding the care orders.

108 I have also taken into account the fact that granting leave will prolong the litigation with, in all likelihood, grandparent contending against parent. However, I do not think this is such a matter that should cause me to refuse leave.

109 Finally, I think it is important to note that were I to grant leave I am not determining which of the grandparents or the parents would provide the care that would most advance the interests of the children. I am only deciding if a case for rescission of the care order is arguable and the other matters in s 90(2) and (2A).

110 For all these reasons, I am satisfied that it appears that there has been a significant change of relevant circumstances and that taking all matters into account, leave to vary the care order should be granted.

111 By this decision I am granting leave to the parents to apply to have the care order rescinded or varied, and that it remains for the Children's Court to determine whether the case that I have found to be arguable is established.

112 No parties sought costs, which in any event are only awarded in exceptional cases (see s 88).

113 The orders of the Court are therefore:

(1) Appeal granted.

(2) Set aside the decision of the Children's Court dated 30 November 2012.

(3) Grant leave to the parents under s 90(1) for an application for rescission or variation of the care order dated 25 July 2011.

(4) Remit the proceedings to the Children's Court for further hearing.

(5) No order as to costs.

(6) Note that given the earlier decision of the Children's Court and with the consent of all the parties, it would seem preferable for a different member of the Court to sit on the further hearing.

**********

Decision last updated: 06 December 2013