Children's Court New South Wales

• Medium Neutral Citation: DFaCS and the Youngest M Children [2014] NSWChC 4
• Hearing dates: 3 and 4 June 2014 at Wagga Wagga
• Decision date: 10 July 2014
• Jurisdiction: Care and protection
• Before: Judge Peter Johnstone, President of the Children's Court of New South Wales

Decision

Leave to bring an application for rescission of the previous care orders refused

• Catchwords: CHILDREN - Care and Protection - application for leave to apply under s 90 of the Care Act for rescission of final Care orders - whether there has been a significant change in any relevant circumstances since the final Care orders were made - if so, whether leave should be granted having taken into account the matters specified in s 90(2A) - whether there is an arguable case
• Legislation Cited: Children and Young Persons (Care and Protection) Act 1998
• Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; Dempster v National Companies and Securities Commission (1993) 9 WAR 215; Department of Family and Human Services (NSW) re Amanda & Tony [2012] NSWChC 13; DFaCS re Oscar [2013] NSWChC 1; Director-General of Department of Community Services; Re "Sophie" [2008] NSWCA 250; In the matter of Campbell [2011] NSWSC 761; In the matter of OM, ZM, BM and PM [2002] CLN 4; Johnson v Page [2007] Fam CA 1235M v M [1988] HCA 68; Kestle v Department of Family and Community Services [2012] NSWChC 2; Re M (No 5) - BM v Director-General, Department of Family and Community Services [2013] NSWCA 253; Re Tina [2002] CLN 6S v Department of Community Services (DoCS) [2002] NSWCA 151; The Department of Community Services v "Rachel Grant", "Tracy Reid", "Sharon Reid and "Frank Reid" [2010] CLN 1
• Category: Principal judgment
• Parties: Secretary of the Department of Family and Community Services (DFaCS); RM, HM and ZM (The youngest M Children); Ms M (Mother); Mr B (Father of RM and HM); Mr S (Father of ZM)
• Representation: Mr T Allen of counsel, instructed by Ms C Samuels, solicitor, for the Secretary; The mother, in person; Ms Rowley, solicitor, for Mr B; Mr S, in person; Ms D Garwell, solicitor, as the Independent Legal Representative for the children
• File Number(s): 2013/42-44
• Publication restriction: Initials have been used in order to anonymise the children and parties

Judgment

REASONS

1 I am required to make a determination in Care proceedings brought pursuant to the Children and Young Persons (Care and Protection) Act 1998 (the Care Act) by the mother in relation to her three youngest children: RM (6), HM (5) and ZM (3).

2 The three children were removed from the care of their mother along with two older siblings, on 30 November 2011. Care orders were subsequently made on 19 April 2013 that included the allocation of parental responsibility for the children to their respective fathers, to the exclusion of the mother. The children are now in the care of those fathers.

3 ZM has been living with his father, Mr S, in Junee, since 21 December 2011. RM and HM have been living with their father, Mr B, since 1 May 2013, in Adelaide.

4 The present application is brought under s 90(2) of the Care Act by the mother. She seeks leave to apply for rescission and variation of the care orders made on 19 April 2013. Effectively, she seeks restoration to her care of RM and HM, and enhanced contact with ZM.

5 The other parties to the proceedings oppose a grant of leave. They are the Secretary of the Department of Family and Community Services (DFaCS) and the fathers, Mr B, and Mr S. The children are represented by an independent legal representative appointed by the Court.

6 To understand the full nature and context of the mother's application, and the issues that arise for determination in the present proceedings, it is necessary that I first record some of the background, including the relevant procedural history, and that I refer to the relevant legal framework.

Background

7 The mother is now 39. She is the mother of 5 children all of whom were either assumed or removed from her care by the Secretary of DFaCS on 30 November 2011.

8 The 5 children are:

• DM (born 1997) and JM (born 1998). Their father is Mr C.

• RM (born 2007) and HM (born 2009). Their father is Mr B.

• ZM (born 2011). His father is Mr S.

9 There followed some 2½ years of continuous litigation in various courts, including the Children's Court, the District Court, the Supreme Court and the Court of Appeal of NSW. A detailed chronology of the ensuing legal proceedings is set out in the judgment of Sackville AJA in Re M (No 5) - BM v Director-General, Department of Family and Community Services [2013] NSWCA 253 at [62] - [102].

10 The proceedings were first dealt with by Children's Magistrate Sbrizzi, sitting in the Children's Court. After numerous interlocutory hearings, his Honour presided over a hearing that lasted for a number of days, at the conclusion of which he found that the 5 children were in need of care and protection and that there was no realistic possibility of restoration to their mother.

11 Children's Magistrate Sbrizzi expressly approved permanency planning that involved each child being placed in the long-term care of their respective father.

12 He made orders on 12 December 2012 allocating all aspects of parental responsibility, other than for contact with the mother, to the respective fathers, to the exclusion of the mother. He made other orders relating to contact and ancillary matters, which included an order for the provision of a report under s 82 of the Care Act by 12 September 2013.

13 The mother appealed from the Children's Court to the District Court. The appeal was heard over several days in April 2013 by Judge Olsson. At the conclusion of that re-hearing Judge Olsson also found that there was no realistic possibility of restoration of any of the 5 children to the mother and expressly determined that each child should remain in the care of their respective father.

14 Her Honour made orders on 19 April 2013 in which she revoked the orders of the Children's Court and made fresh care orders in which she allocated all aspects of parental responsibility for each of the 5 children to the respective fathers, to the exclusion of the mother.

15 Her Honour made other orders relating to contact and ancillary matters, including the acceptance of undertakings, supervision orders under s 86, and prohibition orders under s 90A of the Care Act. She did not, however, make and order for a report under s 82.

16 In the proceedings before me, the mother has suggested that the failure of the District Court to make a fresh order for a report under s 82 was an oversight by Judge Olsson. In her mind, the fact that no report under s 82 has ever been prepared is significant. In my view, it is irrelevant to the determination required to be made in the present proceedings.

17 The mother made various unsuccessful applications for relief in respect of the findings and orders of the District Court to the Supreme Court and the Court of Appeal.

18 This plethora of litigation culminated on 9 August 2013 in the decision referred to above (Re M (No 5) - BM v Director-General, Department of Family and Community Services [2013] NSWCA 253), as a result of which the orders of the District Court were left undisturbed.

19 In addition to her various applications to the Supreme Court and Court of Appeal, the mother has commenced three applications in the Children's Court pursuant to s 90 of the Care Act. Her first application was filed as early as 25 June 2013, but this was dismissed on 11 July 2013. A second application was filed on 5 November 2013, but subsequently withdrawn on 12 November 2013.

20 The present application was filed on 6 December 2013 in which the mother seeks leave to apply for rescission of the District Court orders in relation to parental responsibility for RM and HM, which was allocated to their father, Mr B, to the exclusion of the mother, and for variation of the contact orders in respect of ZM.

The relevant legal framework

21 I turn at this point therefore, to consider the relevant legal framework within which the mother's application is to be considered and determined.

22 The objects of the Care Act are set out in s 8. The Act also sets out a number of principles according to which it is required to be administered, both administratively and judicially.

23 The overriding principle is that the safety, welfare, and well-being of children are paramount, even to the exclusion of the interests of any parent: s 9(1). Subject to that, the Care Act sets out other, particular principles to be applied, in various sections including sections 9(2), 10, 11, 12 and 13.

24 It is now well settled law that in all decisions under the Care Act involving the paramount concern for the safety, welfare and well-being of a child, including issues of removal, restoration, contact, custody and placement, the proper test to be applied is that of "unacceptable risk to the child": The Department of Community Services v "Rachel Grant", "Tracy Reid", "Sharon Reid and "Frank Reid" [2010] CLN 1 per Judge Marien at [61]. The appropriate test is whether there is an "unacceptable risk" of harm to the child: M v M [1988] HCA 68 at [25].

25 Whether there is unacceptable risk of harm to a child is to be assessed from the accumulation of factors proved according to the relevant civil standard, as discussed below: Johnson v Page [2007] Fam CA 1235.

26 The standard of proof is on the balance of probabilities: s 93(4) of the Care Act. The High Court decision in Briginshaw v Briginshaw [1938] HCA 34 is relevant in determining whether the burden of proof, on the balance of probabilities, has been achieved: Director-General of Department of Community Services; Re "Sophie" [2008] NSWCA 250.

27 The Children's Court must not make a final care order unless it expressly finds that the permanency planning for the children has been appropriately and adequately addressed: s 83(7)(a). Permanency planning means the making of a plan that aims to provide a child or young person with a stable placement that offers long-term security: s 78A.

28 The permanency plan must:

(a) have regard, in particular, to the principle that if a child 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 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: s 9(2)(e),

(b) meet the needs of the child: s 78A(1)(b), and

(c) avoid the instability and uncertainty arising through a succession of different placements or temporary care arrangements: s 78A(1)(c).

29 The plan must also include provision for appropriate and adequate arrangements for contact for the child with persons of significance.

30 If the Children's Court finds that a child is in need of care and protection, it may make orders allocating parental responsibility for that child.

31 Before doing so, however, the Court must first give particular consideration to the principle in s 9(2)(c) that must also be satisfied that any other order would be insufficient to meet the needs of the children: s 79(3). The principle in s 9(2)(c) of the Care Act is:

"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."

32 The present proceedings are brought under s 90 of the Care Act. This section empowers the Children's Court to rescind or vary previous care orders. An application under s 90, however, may only be made pursuant to a grant of leave: s 90(1).

33 Leave may only be granted if it appears that there has been a significant change in any relevant circumstances since the care order was made or last varied: s 90(2).

34 The relevant subsections of s 90 are as follows:

90 Rescission and variation of care orders

(1) An application for the rescission or variation of a care order may be made with the leave of the Children's Court.

(1A) .....

(2) The Children's Court may grant leave if it appears that there has been a significant change in any relevant circumstances since the care order was made or last varied.

(2A) Before granting leave to vary or rescind the care order, the Children's Court must take the following matters into consideration:

(a) the nature of the application, and

(b) the age of the child or young person, and

(c) the length of time for which the child or young person has been in the care of the present carer, and

(d) the plans for the child, and

(e) whether the applicant has an arguable case, and

(f) matters concerning the care and protection of the child or young person that are identified in:

(i) a report under section 82, or

(ii) a report that has been prepared in relation to a review directed by the Children's Guardian under section 85A or in accordance with section 150.

(3) .....

(3A) .....

(4) .....

(5) .....

(6) Before making an order to rescind or vary a care order that places a child or young person under the parental responsibility of the Minister, or that allocates specific aspects of parental responsibility from the Minister to another person, the Children's Court must take the following matters into consideration:

(a) the age of the child or young person,

(b) the wishes of the child or young person and the weight to be given to those wishes,

(c) the length of time the child or young person has been in the care of the present caregivers,

(d) the strength of the child's or young person's attachments to the birth parents and the present caregivers,

(e) the capacity of the birth parents to provide an adequate standard of care for the child or young person,

(f) the risk to the child or young person of psychological harm if present care arrangements are varied or rescinded.

(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) .....

35 In the present proceedings, I am required to determine whether the mother should be granted leave to make an application to rescind the previous care orders.

36 She contends that there have been significant changes in various relevant circumstances since the care order was last made, that is, since 19 April 2013.

37 The concepts of "relevant circumstances" and "significant change" were discussed by Justice Slattery in his decision In the matter of Campbell [2011] NSWSC 761.

38 As to what constitutes a "relevant circumstance" Slattery J said:

"The range of relevant circumstances will depend upon the issues presented for the Court's decision. They may not necessarily be limited to a 'snapshot' of events occurring between the time of the original order and the date the leave application is heard. 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."

39 As to what constitutes a "significant" change in a relevant circumstance, Slattery J referred to S v Department of Community Services (DoCS) [2002] NSWCA 151 where the Court of Appeal held that the change must be "of sufficient significance to justify the consideration [by the court] of an application for rescission or variation of the order." He said that there are dangers in paraphrasing the s 90(2) statutory formula for the exercise of the discretion beyond this statement of the Court of Appeal: [43].

40 Slattery J also made it clear that the Court's discretion to grant leave is not only limited by s 90(2), but also by the requirement to take into account the s 90(2A) list of considerations. Therefore, establishing a significant change in a relevant circumstance under s 90(2) is a necessary, but not a sufficient, condition for the granting of leave.

41 As to the requirement of an "arguable case", Slattery J held that this does not relate to the application for leave, but that an arguable case must be shown for the rescission or variation sought taking into account the matters in s 90(6). Therefore, the matters in s 90(6) must be taken into account in determining whether the applicant for leave has an arguable case.

42 Slattery J agreed with the then President of the Children's Court, Judge Marien, that the interpretation of "arguable case", as expressed in Dempster v National Companies and Securities Commission (1993) 9 WAR 215, should be adopted; namely, that an arguable case is a case that is "reasonably capable of being argued" and has "some prospect of success" or "some chance of success".

43 These principles were considered and applied by Judge Marien in Kestle v Department of Family and Community Services [2012] NSWChC 2.

44 In his Reasons, his Honour sets out a helpful summary of the principles to be applied in a s 90(2) application [22] that guide the decision-making process:

(i) In determining whether to grant leave the Court must first be satisfied under s 90(2) that there has been a significant change in a relevant circumstance since the Care order was made or last varied.

(ii) 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.

(iii) 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.

(iv) The establishment of a significant change in a relevant circumstance is a necessary but not a sufficient condition for leave to be granted. The Court retains a general discretion whether or not to grant leave.

(v) Having been satisfied that a significant change in a relevant circumstance has been established by the applicant, the Court must take into account the mandatory considerations set out in s 90(2A) in determining whether to grant leave.

(vi) The s 90(2A) mandatory considerations include that the applicant has an "arguable case" for the making of an order to rescind or vary the current orders.

(vii) An arguable case means a case "which has some prospect of success" or "has some chance of success".

(viii) In determining whether an applicant has an arguable case and whether to grant leave, the Court may need to have regard to the mandatory considerations in s 90(6).

45 Judge Marien went on to specifically consider whether leave could be granted on a specific basis. The mother in that case had submitted that it was not open to the Court to grant leave on a discrete issue such as contact, and that once leave is granted, all issues (including restoration and contact) may be re-visited by the Court at the substantive hearing. The President did not accept this argument and held that the Court has a wide discretion under s 90 (1) to grant leave. His Honour referred to the decision of Mitchell ChM in Re Tina [2002] CLN 6, and said at [53]:

"In my view, the wide discretion available to the court in granting leave under s 90(1) allows the court to also exercise a wide discretion as to the terms and conditions upon which leave is granted. Accordingly, the court may restrict the grant of leave to a particular issue or issues. This would be appropriate, for example, where the court determines that an applicant parent does not have an arguable case for restoration of the child to their care, but does have an arguable case on the issue of increased parental contact."

46 In the present proceedings, the mother seeks leave to apply for rescission of the orders relating to RM and HM, with a view to them being restored to her care. To justify the granting of leave for that purpose, the mother would first need to sufficiently demonstrate that she has some prospect of successfully establishing a realistic possibility of restoration to her of those children.

47 The leading superior court decision in respect of the phrase "realistic possibility of restoration", as it appears in the Care Act, is: In the matter of Campbell [2011] NSWSC 761, a decision by Justice Slattery.

48 I have endeavoured to summarise the relevant principles in a number of judgments including Department of Family and Human Services (NSW) re Amanda & Tony [2012] NSWChC 13 at [29] - [32] and DFaCS re Oscar [2013] NSWChC 1 at [29] - [34].

49 When assessing whether there is a realistic possibility of restoration, the Secretary is required to have 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: s 83(1).

50 It follows that when deciding whether to accept the assessment of the Secretary, the Court should also have regard to those considerations: s 83(5).

51 I have set out in a number of judgments a summary of the case law surrounding the concept of realistic possibility of restoration, which I now summarise as follows:

• A possibility is something less than a probability; that is, something that it is likely to happen.

• A possibility is something that may or may not happen. That said, it must be something that is not impossible.

• The concept of realistic possibility of restoration is not to be confused with the mere hope that a parent's situation may improve. The possibility must be 'realistic', that is, it must be real or practical. It must not be fanciful, sentimental or idealistic, or based upon 'unlikely hopes for the future'. It needs to be 'sensible' and 'commonsensical'.

• It is going too far to read into the expression a requirement that a parent must always at the time of hearing have demonstrated participation in a program with some significant "runs on the board": In the matter of Campbell [2011] NSWSC 761 at [56].

52 The Care Act, s 83(1) makes clear at what time the "realistic possibility" of restoration should be assessed. It is at that time the Court must make the assessment. "It must not at the time of the... application be merely a future possibility. It must at that time be a realistic possibility": In the matter of Campbell [2011] NSWSC 761 at [57].

53 As noted above, there are two limbs to the requirements for assessing whether there is a realistic possibility of restoration, whether the assessment is made under s 83(1), 83(5) or s 83(7), to each of which regard must be had.

54 The first limb is the "circumstances of the child", and the second limb is "the evidence, if any, that the child'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".

55 To make a determination in the present case whether the mother has some prospect of successfully establishing a realistic possibility of restoration to her of those children, it is necessary to understand why Judge Olsson determined that issue in the negative.

Judge Olsson's findings

56 It is important to understand why it was that Judge Olsson considered these children would continue to be at risk if restored to their mother, and why she found that there was no realistic possibility of restoration of the children to her, such that she expressly approved their placement with the fathers and allocated parental responsibility to those fathers to the exclusion of the mother.

57 There are always dangers in summarising or paraphrasing a long judgment containing a variety of findings and conclusions, but it seems to me that the essential elements of her Honour's findings were as follows:

(1) The chaotic and peripatetic life-style of the mother. Amongst other things, Judge Olsson referred to the observed filth and disorganisation in the mother's household. The children were physically neglected. There was evidence of inadequate nutrition and hygiene. The children did not regularly or consistently attend school. A disproportionate and inappropriate level of responsibility was placed on the older children.

(2) The inadequate parenting skills displayed by the mother and her propensity to prioritise her own needs over those of her children. She failed to adequately understand and attend to the children's health, medical and developmental needs. The mother engaged in harsh and excessive discipline, including inappropriate and repeated smacking, striking, berating and abusing. She even made a threat to kill one child. The mother systematically alienated the children from their fathers and other family, involving the removal of the identity and influence of the fathers from the children's lives.

(3) The mother's poor insight into the real reasons the children were taken into care and her propensity for unjustifiably seeking to place responsibility on others. This included the portrayal of herself as a victim, and her exaggeration of her perceived faults in others; for example, her assertions of domestic violence and her "mischievous allegations" of child pornography against one father.

Then there were allegations that it was the children who were lazy and disorganised, "but worst of all...she accused her own children of lying and having a history of lying."

Judge Olsson was also highly critical of the mother's failure to engage meaningfully with the departmental caseworkers and the children's teachers.Of particular significance was the mother's attack on Mr B regarding his bipolar condition, which Judge Olsson expressly found was "tainted by prejudice and ignorance".

58 It was not, as the mother would have Judge Olsson believe, that she merely made a few mistakes, but was otherwise a good mother. Her Honour said:

"The overwhelming impression that I have formed is that the family situation was almost entirely one of chaos and disorganisation, and it got worse...By 2010 in my view there were some very serious problems within this family. Ms M could have taken steps to address them. DoCS had already recommended that she engage with a service known as Brighter Futures but she declined. The school was imploring her to work cooperatively...but she ignored their approaches. Instead, and to my mind tragically, she isolated herself and her children even further......the mother has alienated the children from their fathers...in terms of relationships she has displayed no insight or understanding of the individuality of the children...she has said she has been the victim of a domestic violence relationship with Mr S, a position which as I have said she has tended to recant and yet she has gone back to him and she intends that relationship to continue. If there is an element of violence in that relationship, then ZM would be exposed to it, and the younger children if they were in her care. If there is not...there has to be a question mark about her irrational, even delusional view that there is domestic violence..."

The mother's case

59 I turn now to summarise the mother's case for the granting of leave.

60 It is to be noted at this point that the mother is a litigant in person. The factors surrounding that circumstance were never adequately explained. The mother at one stage suggested it was a question of cost. I noted that she had appeared in person on a number of prior occasions, including before Rein J, Ward JA, and Basten, Barrett JJA and Bergin CJ in Eq. Basten JA observed in his judgment in M v Director General, Department of Family and Community Services [2013] NSWCA 118 that the mother "argued her application by telephone with commendable clarity despite her lack of legal training".

61 I nevertheless made due allowance for her lack of legal training and the absence of legal training, and gave her such assistance and explanations as I thought appropriate, without (I hope) inappropriately showing her any favour that impacted unfairly on the cases presented by other parties. It is true that the mother presented as an intelligent and articulate advocate, but she did however, fail or refuse to understand a number of significant aspects of the legal framework surrounding her application. Not the least of these was her tendency to press matters of irrelevance, and her attempts to re-agitate issues already determined by Judge Olsson.

62 In her Application filed on 6 December 2013 the mother specified the flowing grounds:

(1) "There have been a number of significant changes more specifically detailed in my accompanying affidavit."

"There have been a number of significant changes more specificallydetailed in my accompanying affidavit."

That was a reference to her affidavit of 6 December 2013. She subsequently filed and relies upon further affidavits made on 10 January 2014, 28 January 2014, 4 April 2014, and 2 June 2014.

(2) "Non-compliance: I refer to the 2000 children's act regulations at clause 6, stating:

'6 Rescission and variation of care orders - significant change'

For the purposes of s 90(2) of the Act, factors which indicate a significant change in 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:

(a) the parents of the child or young person concerned have not met their responsibilities under an applicable care plan or permanency plan involving restoration.

Under the meaning/definition of significant change in this part of the regulation/s, the parents are (sic) not met their responsibilities under the care plans: the current care plans are not being complied with and the reason that I am coming forward now is because the children's wishes are not being heard because there has been no follow up on the children's placement because the section 82 report ordered by Magistrate Sbrizzi was dismissed and therefore my children do not have an active representative to implement what was stamped by the court, so therefore I am coming forward as a voice on behalf of DM, JM, RM, HM and ZM, and I would like the court to hear that the lack of sibling contact is having an effect on each one of these siblings and I would like the court to enforce or bring about a change to facilitate the restoration of the family unit."

(3) DoCS caseworker Dianne Watson agreed under oath in court in November 2012 for DoCS to pay travel and accommodation costs of contact visits, however this was not written into the care plans."

63 The mother's affidavits, in which she purports to set out the significant change in relevant circumstances, are in general long and self-serving narratives, with a tendency for repetition and, as previously observed, contain a large amount of irrelevant material, much of which seeks to revisit the history and to cavil with the findings in the various judgments made contrary to her interest, or her view of the world.

64 I have summarised and set out below what I believe is the essence of her case, insofar as it might be interpreted as purporting to raise any significant change in any relevant circumstances since the care order was made or last varied. It will be noted that I have expressly omitted any reference to the absence of a s 82 report. Even if I were to accept that the omission of an order for such a report was indeed an oversight, I regard the absence of a report as irrelevant to the determination required to be made at this point of the legal process. What is required is that the mother demonstrates actual significant changes, not raise matters of suspicion or the spectre of certain possibilities as to her perception of circumstances that may or may not exist.

65 The mother's case falls into 3 broad categories:

(1) Positive improvements in the mother's parenting skills, insight and stability.

(2) Negative changes in the current placements with the fathers, and deficiencies identified in the care of the children.

(3) The wishes of the children as more recently expressed.

66 Under the first category of improved insight and parenting capacity, the mother points to such things as the parenting and other courses, reading and other educative activities she has undertaken, her participation in community groups and involvement in other child-focused activities.

67 Most particularly, the mother relies upon the psychological counselling sessions she has engaged in with Mr David O'Brien, psychologist and counsellor.

68 The mother asserts that she has a better understanding of children and their needs, parenting, disciplinary techniques, daily routines, diet, and hygiene. She says she has attained enhanced insight into factors that contributed to the removal of her children, including risk, emotional needs and communication. She has settled down in her current location, abandoned her transient lifestyle and established strong community and church ties.

69 Under the second category of negative changes in the care provided by the fathers, the mother alleges a failure to comply with arrangements as to contact, and asserts that there has been inadequate contact, especially sibling contact, resulting in damage to the 'family unit'. She also alleges some unspecified deterioration in Mr B's mental state that impacts negatively on his capacity to adequately care for RM and HM. She says, for example, that RM has exhibited out-of-character aggressive behaviour recently, which could only be attributed to his father's mental disorder. She also asserts that Mr S has recently been guilty of domestic violence against her, and has begun to drink to excess. There are other allegations, such as inadequate supervision and poor physical development indicating a lack of nutrition.

70 Under the third category of alleged changes, the mother asserts that the children have repeatedly expressed to her a desire to be with her, and told her that they miss seeing each other. She has the means and the premises to provide the children with better accommodation than they currently experience, and the opportunity to more regularly and positively interact with her and each other at her present location. In short, the children would be much better off with her than with their respective fathers.

Credit

71 In my view credit is an important determinative in the present case, as I have come to the view that the mother is an unreliable witness, and to a large extent her case rests upon self-reporting and assertions about changes in character and insight, and as to future conduct.

72 In his assessment of the mother, Magistrate Sbrizzi said:

"Having seen and heard her in the witness box I did not find her an impressive witness on much of the evidence she gave in this case. Making allowance for the fact that she may have been nervous and stressed at giving evidence her responses in my view to many questions often ranged from either being vague or evasive, or to quote Mr Hemsley's description, obtuse. There were many times when she was non-responsive to simple questions.

There is no doubt in my mind that the mother is an intelligent person. Her non-responsiveness to simple questions was not due in my view to a lack of understanding of those questions but rather, reluctance to answer questions that she found potentially harmful to her case. There were other times in giving evidence where her evidence was simply inconsistent..."

73 Her presentation before me was attended by the same issues. Furthermore, I found her to be glib, with a tendency to dissemble and exaggerate.

74 I do not rely solely on her demeanour, appearance and conduct in court as the determinant of her unreliability as a witness. Rather, I have sought to rely predominantly on contemporary materials, objectively established facts, independent support from other witnesses, and the apparent logic of events. Nevertheless, her presentation as a witness left much to be desired.

75 The exchanges between her and Mr S during his cross-examination of her were in my view particularly instructive, when glimpses of her true character, not her court demeanour, were revealed, and she showed herself to be, in reality, manipulative, callous and remorseless in the pursuit of her own ends.

The evidence of Mr O'Brien, the psychologist

76 The mother's case relied significantly on the evidence of her psychologist, Mr O'Brien, as he had the potential to provide what might have been an independent corroborative assessment of a changed person, due in particular to an opinion expressed by him in the following terms:

"The writer believes that the mother has the knowledge to carry out appropriate parenting, and that she is aware of proper disciplinary practices."

77 His evidence, however, was less than objective, and this reflected adversely not only on his credibility, but also on the manipulative capacity of the mother.

78 The mother started seeing Mr O'Brien on 12 June 2013. He then saw her on 8 occasions for counselling sessions for the next 7 months, the last occasion being on 8 January 2014.

79 The material from Dr O'Brien first emerged in the proceeding pursuant to a subpoena. In that material there emerged some quite negative comments, including a letter dated 29 October 2013, in which she was described as "experiencing a significant level of depression which appears to be the direct consequence of having had her five children taken out of her care and placed in the respective father's care, and having also been subjected to domestic violence".

80 Just before the hearing, however, Mr O'Brien, who had in fact gone into retirement, was prevailed upon to write a further report, dated 2 June 2014 (Exhibit 1), in which he said:

"...at no time during the period of contact was the mother considered to have, nor did she exhibit any symptoms of depression, anxiety or stress. She on occasion exhibited situational grief following visits to Adelaide to have contact with the children based there: this resulted from having to say 'goodbye to her children and leave them behind'."

81 The stark contrast between these two expressions of opinion would of itself be sufficient to justify a rejection of the evidence of Mr O'Brien as partial and unreliable. However, it got worse, when in cross-examination he conceded that the distinction he purported to make between endogenous depression, and grief related to the loss of her children, was in fact suggested to him by the mother.

82 Mr O'Brien further demonstrated his unreliability when he conceded that he was never given the full picture as to why the children were removed from the mother, and was never given, for example, a copy of Judge Olsson's reasons, or told the true nature of her adverse findings about the mother. The basis for any reliable opinion by him about the mother was effectively nullified, such that no reliance could safely be placed on any positive statement about her, her parenting capacity, or her development of insight.

83 Indeed, in the material produced on subpoena, he actually made some adverse comment about the mother, which is perhaps more indicative of his true view of her. For example, he made the following notes:

"... Have read documentation re loss of kids but she has an answer for everything - who has got it wrong? (22/8/13) ... Concerned she would try and falsify answers on DASS test (5/9/13) ..."

Has there been a significant change in a relevant circumstance?

84 The mother has undoubtedly made efforts in an attempt to address the shortcomings and deficiencies in her parenting capacity as identified by Judge Olsson, including the courses and other educative activities she has engaged in, the working with children check, the psychological counselling she has undertaken, and the other positive steps she has taken to stabilise her situation and engage in the community.

85 She has developed an ability to articulate how she might do some things differently if the children were to be restored to her care, for the better. It is also positive that she appears to have settled in her current location, and has abandoned her transient lifestyle.

86 The extent to which these changes are enduring, and might or might not translate into reality however, is problematic.

87 First, her "ownership" of many of the faults ascribed to her was, it seemed to me, limited and to the extent that she made any concessions, they were given grudgingly.

88 Secondly, given the negative view I have formed as to her credit and the superficiality of many of her assertions, rather than be left solely with her self-serving and self-supporting statements, it would have been helpful to see some objective or independent corroboration. The only attempt in this regard was the ill-fated presentation of Mr O'Brien which I have already rejected. And, even he was less than enthusiastic in his appraisal of the mother.

89 Thirdly, the mother demonstrated that very little has changed by continuing to agitate or canvass issues agitated in the previous proceedings, such as Mr B's mental condition, the allegations of domestic violence, and her repetition of allegations in relation to pornography.

90 Fourthly, she continues to deny or to minimise her own role in the removal from her of her children, such as the alienation of the fathers, and her disengagement from the children's schools, and still blames others for everything that happened, complaining about the lack of support she received, and so on.

91 Fifthly, she continues to mount inappropriate attacks on the fathers, accusing Mr S of maintaining an untidy house and of excessive drinking, with no credible evidence, and blaming Mr B for recent episodes of poor behaviour exhibited by RM at school, an allegation so lacking in foundation as to be bordering on the absurd. The other assertions of inadequate supervision, poor physical condition and a lack of nutrition are equally lacking in substance.

92 The mother's complaints about failures by fathers and caseworkers in relation to contact are both misconceived and spurious. They serve only to further demonstrate her inability to move on. Any problems surrounding contact have largely been of her own making, due to her inflexibility and demanding nature. For example, until recently Mr S had been extremely generous in the nature and extent of contact he was permitting the mother to enjoy, well in excess of the prescribed minimum. This has not continued, due to the mother's poor conduct and attitude. But even now, Mr S is taking steps, in ZM's interest, to restore contact with his mother. So far as contact with RM and HM is concerned, it was not the subject of an order. If the extent of the minimum contact envisaged in the Notation to the orders may not have been realised, that was not due to the father, but to the mother's failure to take it up.

93 There has been no breach by any fathers of the previous care orders in relation to contact. Nor in my view, has there been any non-compliance by them with the spirit of the orders or the Notation thereto, and to the extent that there have been any problems, I ascribe them to the attitude and conduct of the mother.

94 The mother's assertions about a change in the children's wishes or expressed desire to be with her rather than with their fathers are also superficial and unsubstantiated.

95 I am left with the overall impression that very little has changed. The sad irony of the absence of insight is that the protagonist remains oblivious to the lack, and therefore incapable of beginning the journey of understanding and appreciation so as to sincerely address the issues of concern.

96 In my view, the mother has not demonstrated any meaningful change in her capacity to parent the children. Restoration remains untenable, as it would in all probability continue to be attended by the same level of deficiency that existed at the time of their removal, giving rise to an unacceptable risk of harm.

97 Accordingly, the mother has failed to establish a basis that might justify the Court's consideration of a rescission of the orders relating to RM and HM that might lead to their removal from the placement with their father, and placement with her. She has also failed to establish a basis that might justify the Court's consideration of a variation of the orders relating to RM and HM that might lead to variation of the minimum contact with their mother, or their siblings, or the need for supervision of contact.

98 Similarly, the mother has failed to establish a basis that might justify the Court's consideration of a variation of the orders relating to ZM that might lead to variation of the minimum contact with his mother, or his siblings, or the need for supervision of contact.

99 For these reasons I am not satisfied that there has been any change of sufficient significance of any relevant circumstance that would justify a grant of leave to make any application for rescission or variation of the previous care orders.

Disposition

100 For the reasons given, I am not satisfied that the mother's case for a grant of leave to apply under s 90(2) of the Care Act for the rescission or variation of the existing care orders has been made out, and leave should therefore be refused.

101 But even if the mother had demonstrated a significant change in any relevant circumstances, to the relevant legal standard, that would not be sufficient of itself, and in my general discretion I would still have refused leave.

102 The length of time for which the children have been in the care of their fathers, and the way in which they have developed and flourished, is a significant contra-indicator to any change in the existing arrangements. Nor did the mother paint a compelling picture as to her plans for the children if they were to be restored to her care. Nor did she persuade me that she could be given the level of trust necessary to dispense with supervision of contact. As to the frequency of contact, the orders merely prescribe a minimum. In my view the current minimum arrangements are appropriate and adequate. That is not to say, however, that additional contact might not be arranged by mutual agreement with the fathers.

103 Nor has the mother made out an arguable case for any of the changes to the existing care orders she seeks to agitate.

104 The mother's application is dismissed.

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Decision last updated: 28 July 2014