C v NSW Department of Communities and Justice - [2021] NSWDC 479

District Court

New South Wales

Medium Neutral Citation: C v NSW Department of Communities and Justice [2021] NSWDC 479
Hearing dates: 3 August 2021 (mention); 4 August 2021; 5 August 2021 (Newcastle)
12 August 2021 (Newcastle at Sydney)
Date of orders: 1 September 2021
Decision date: 01 September 2021
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
(1) The appeal is dismissed.
(2) The order of the Children’s Court made on 10 November 2020 is confirmed.

Catchwords:
CHILD WELFARE – care and protection of children – care and protection orders – appeal from Children’s Court to District Court – application by prior carer for leave to apply to the Children’s Court to vary or rescind orders made

Legislation Cited:
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Children and Young Persons (Care and Protection) Amendment Act 2018 (NSW)
Court Suppression and Non-publication Orders Act 2010 (NSW)
Mental Health Act 2007 (NSW)

Cases Cited:
In re Jeremy [2017] NSWCA 220
In the matter of Campbell [2011] NSWSC 761
JL v Secretary, Department of Family and Community Services [2015] NSWCA 88
LZ v Secretary, Department of Family and Community Services [2019] NSWDC 156
Re Tracey [2011] NSWCA 43
S v Department of Community Services [2002] NSWCA 151

Texts Cited:
United Nations Convention on the Rights of the Child (1989)

Category: Principal judgment
Parties: Ms C (Plaintiff)
New South Wales Department of Communities and Justice (First Defendant)
Mr E (Second Defendant)
Ms F (Third Defendant)
Martin Reilly (Fourth Defendant – Independent Legal Representative)
Representation:
Counsel:
In person (Plaintiff)
S Mahony (First Defendant)
Second defendant – no appearance
Third defendant – in person
M Reilly (Fourth Defendant – Independent Legal Representative)
Solicitors:
Crown Solicitors (First Defendant)
MGR Legal (Fourth Defendant – Independent Legal Representative)

File Number(s): 2020/00350387
Publication restriction: Closed Court
Pursuant to s 7 of the Court Suppression and Non‑Publication Orders Act 2010 (NSW), information tending to reveal the identity of or otherwise concerning any party in the proceedings or any person who is related to or otherwise associated with any party in the proceedings is suppressed.
Decision under appeal

Court or tribunal:

Children’s Court

Jurisdiction:

Broadmeadow

Date of Decision:

10 November 2020

Before:

Children’s Magistrate Devine

File Number(s):

2020/00166629

Judgment

In this appeal, the appellant/plaintiff, Ms C, who is the prior carer of two children, A and B, pursuant to an undated Notice of Appeal filed on 10 December 2020, seeks various orders from the court as follows:

Appeal allowed;

Leave granted in respect of the appellant’s application;

The matter be remitted to the Children’s Court to determine.

Essentially, leave is sought by Ms C to seek the variation of final parental responsibility orders made by the Children’s Court in 2013. The first defendant in the proceedings is the Secretary of the New South Wales Department of Communities and Justice. The second defendant is Mr E, the biological father of the two children under consideration. The third defendant in the proceedings is Ms F, the biological mother of the two children. Mr E took no part in the appeal to this court. I am satisfied that adequate steps were taken to bring the appeal to his attention. Ms F appeared and made brief submissions. Before the Magistrate in the Children’s Court, Mr E and Ms F did not support the granting of leave to Ms C: Exhibit A pages 690.14; 692.30; and 694.24. The fourth defendant in the proceedings, Mr Martin Reilly, is the Independent Legal Representative for the two children.
The first defendant Secretary (“the Department”) and the fourth defendant, the Independent Legal Representative, have continued with the positions that they took in the Children’s Court: they oppose the leave sought by the appellant, Ms C. Ms F also opposed the leave sought.
Final care orders were made in relation to the two children on 26 July 2013 in the Children’s Court at Broadmeadow. The two children were placed under the parental responsibility of the Minister for Family and Community Services until they attained the age of 18 years. It was ordered that the Minister was to have sole responsibility for all aspects for parental responsibility for the two children.
At the date of the final hearing in this court, A was 10 years of age and B was eight years of age. The two children were removed from their biological parents because of alleged domestic violence committed by Mr E on Ms F and it being assessed that there was an unacceptable risk to the children. The two children were placed with various carers until August 2013. Wesley Dalmar is accredited as a designated agency to provide out of home care for children and young people. It was appointed by the Minister in relation to the two children.
As stated, Ms C is a former carer of the two children. On 9 August 2013, the two children were placed with Ms C and her husband Mr D in what was then intended to be their long term placement. Ms C and Mr D have separated. Following the separation, the placement of the two children ended on 5 April 2019. Accordingly, the two children spent about five and a half years with Mr D and Ms C. Also living with Mr D and Ms C and the two children during the placement was G, who is xx years of age, who was the children’s foster sibling and is the adopted daughter of Mr D and Ms C. As will be discussed further below, the relationship between Mr D and Ms C fractured in acrimonious circumstances. Whilst the relationship has improved since that time, they remain separated.
In her various affidavits, Ms C describes herself as a “counsellor”. Ms C’s curriculum vitae was in evidence: Exhibit A page 569. In her curriculum vitae, Ms C outlines her substantial experience and qualifications. [Not for publication]. In the evidence were numerous references attesting to Ms C’s ability, character and suitability in relation to children and her work.
Following the cessation of the placement of the children with Mr D and Ms C in April 2019, apparently after Mr D returned the two children to Wesley Dalmar, the two children were placed with various short term carers. In September 2019, the children were ultimately placed with other Wesley Dalmar authorised carers where they presently remain.
On 4 June 2020, Ms C filed an application for rescission/variation of the original July 2013 final care order. This document sets out the grounds for leave relied upon. It also sets out the orders sought by Ms C which were both interim orders and long term orders. The interim orders sought were that parental responsibility for the children with respect to residence and day to day care be allocated to Ms C pending further order with all other aspects of parental responsibilities to be allocated to the Minister, pending further order. Reference was also made to seeking, in the alternative, an altered contact schedule. The long term orders set out in the application are at Exhibit A page 4 and are as follows:

“4. Pursuant to Section 79(1)(f) of the Children and Young Persons (Care and Protection) Act the Court orders that the children be placed under the parental responsibility of [Ms C] until they attain the age of eighteen (18) years in all respects, save for major medical and dental.
5.  Pursuant to Section 79(1)(b) of the Act, the children are placed under the parental responsibility of the Minister in respect of major medical and dental for a period of twelve months from the date of these orders.
6.  Pursuant to Section 76 of the Act, the children shall be placed under the supervision of the Secretary for a period of twelve months from the date of these orders.
7.  Pursuant to Section 76 of the Act, the Minister shall file and serve a report at eleven (11) months from the date of these orders concerning the supervision, including whether the outcomes of supervision have been achieved or whether a further supervision period is proposed.”

Ms C claimed that she was in a position to provide a safe, stable and secure placement for the children and as a counsellor she understood the children’s needs. The application was supported by a detailed affidavit prepared by Ms C.
On 10 November 2020, after hearing submissions, Children’s Magistrate Devine in the Children’s Court refused the application for leave of Ms C. She appeals from that refusal to this court.
The documents relied upon by the parties were voluminous. At the request of the court, consideration was given by the parties to reduce the amount of material relied upon. Exhibit A, the final court bundle, was in excess of 1300 pages in length. The material was detailed and required close consideration.
At the appeal, Ms C appeared for herself. Counsel appeared for the Department, Ms F appeared for herself and there was an appearance by the Independent Legal Representative. The hearing proceeded by way of audio visual link having regard to concerns arising from the COVID-19 pandemic.

Procedural matters

The court ordered that there be a closed court under s 104B of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Care Act”). The court also made an order under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) to the effect that information tending to reveal the identity of or otherwise concerning any party in the proceedings or any person who is related to or otherwise associated with any party in the proceedings is suppressed.
As indicated above, the joint tender bundle became Exhibit A in the proceedings. Written submissions were provided by both the Department and Ms C which were of assistance to the court.
There was no oral evidence given at the hearing with the parties being content to rely on the affidavit and documentary evidence.

The legislative scheme

It is necessary to set out the legislative scheme under the Care Act which is applicable to the appeal.
As the application for leave to this court was made in 2020, the amendments to the Care Act introduced by the Children and Young Persons (Care and Protection) Amendment Act 2018 (NSW) apply.
There was no issue before the Children’s Court or this court that Ms C had standing under s 90 of the Care Act to seek the leave of the court for the rescission or variation of the care orders. At the least, Ms C would appear to fall within s 90(1AA)(e) of the Care Act, being a person who considers herself to have a sufficient interest in the welfare of the children. There is no issue that Ms C has a very significant interest in the welfare of the two children in question.
Section 90 of the Care Act provides 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.
(1AA) An application may be made by—
(a)  the Secretary, or
(b)    (Repealed)
(b1)  the child or young person, or
(c)  a person having parental responsibility for the child or young person, or
(d)  a person from whom parental responsibility for the child or young person has been removed, or
(e)  any person who considers himself or herself to have a sufficient interest in the welfare of the child or young person.

(1A) Subject to any order the Children’s Court may make, a person who makes an application under this section must give notice of the application to the persons who were parties to the proceedings in which the care order was made.
Note—
Section 256A sets out the circumstances in which the Children’s Court may dispense with the requirement to give notice.
(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 make an application to vary or rescind the care order, the Children’s Court must consider the matters set out in subsections (2B) and (2C).
(2B) The primary considerations are as follows—
(a)  the views of the child or young person and the weight to be given to those views, having regard to the maturity of the child or young person and his or her capacity to express his or her views,
(b)  the length of time for which the child or young person has been in the care of the present carer and the stability of present care arrangements,
(c)  if the Children’s Court considers that the present care arrangements are stable and secure, the course that would result in the least intrusive intervention into the life of the child or young person and whether that course would be in the best interests of the child or young person.

(2C) Additional considerations are as follows—
(a)  the age of the child or young person,
(b)  the nature of the application,
(c)  the plans for the child or young person,
(d)  whether the applicant has an arguable case,
(e)  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.

(2D) The Children’s Court may dismiss an application for leave under this section if it is satisfied that the application is frivolous, vexatious or an abuse of process.
(2E) Without limiting subsection (2D), the Children’s Court may dismiss an application for leave under this section if it is satisfied that—
(a) the application has no reasonable prospect of success, and
(b) the applicant has previously made a series of applications for leave under this section that the Court has dismissed.

(3A) If—
(a)  an application is made to the Children’s Court by a person or persons (other than the Secretary) for the rescission or variation of a care order (other than a contact order) in relation to a child or young person, and
(b)  the application seeks to change the parental responsibility for the child or young person, or those aspects of parental responsibility involved in having care responsibility for the child or young person, and
(c)  the Secretary is not a party to the proceedings,
the applicant must notify the Secretary of the application, and the Secretary is entitled to be a party to the application.

(4) The Children’s Court is not required to hear or determine an application made to it with respect to a child or young person by a person referred to in subsection (1AA)(e) unless it considers the person to have a sufficient interest in the welfare of the child or young person.
(5) If—
(a) an application for variation of a care order is made or opposed by the Secretary, and
(b) a ground on which the application is made or opposed is a ground that has not previously been considered by the Children’s Court,

the ground must be proved as if it were a ground of a fresh application, or of opposition to a fresh application, for a care order.
(6) Before making an order to rescind or vary a care order that places a child or young person under the parental responsibility of the Minister, or that allocates specific aspects of parental responsibility from the Minister to another person, the Children’s Court must take the following matters into consideration—
(a)  the age of the child or young person,
(b)  the views of the child or young person and the weight to be given to those views,
(c)  the length of time the child or young person has been in the care of the present caregivers and the stability of present care arrangements,
(d)  the strength of the child’s or young person’s attachments to the birth parents and the present caregivers,
(e)  the capacity of the birth parents to provide an adequate standard of care for the child or young person,
(f)  the risk to the child or young person of psychological harm if present care arrangements are varied or rescinded.

(7) If the Children’s Court is satisfied, on an application made to it with respect to a child or young person, that it is appropriate to do so—
(a) it may, by order, vary or rescind an order for the care and protection of the child or young person, and
(b) if it rescinds such an order—it may, in accordance with this Chapter, make any one of the orders that it could have made in relation to the child or young person had an application been made to it with respect to the child or young person.

(8) On the making of an order under subsection (7), the Children’s Court must cause notice of the order to be served on the Secretary.
(9) This section does not apply to an application to vary an interim care order.
Note—
Section 90AA provides for applications to vary interim care orders.”

The objects of the Care Act are set out in s 8 of the Care Act which provides as follows:

“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
(a1)  recognition that the primary means of providing for the safety, welfare and well-being of children and young persons is by providing them with long-term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles, 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.”

The principles to be applied by the court for the administration of the Care Act are set out in s 9 of the Care Act which provides as follows:

“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.
(g) If a child or young person is placed in out-of-home care, the permanent placement principles are to guide all actions and decisions made under this Act (whether by legal or administrative process) regarding permanent placement of the child or young person.”

Section 91 of the Care Act deals with appeals to this court from the Children’s Court. It provides as follows:

“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.
(7) Subject to any interlocutory order made by the District Court, an appeal does not affect the operation of the order appealed against or prevent the taking of action to implement that order.
(8) The provisions of Chapter 6 apply to and in respect of the hearing of an appeal under this section in the same way as they apply to and in respect of the hearing of a care application under that Chapter.”

The position may therefore be summarised as follows under the section:

An appeal pursuant to s 91 of the Care Act may be brought by a party to proceedings who is dissatisfied with an order of the Children’s Court. In her Notice of Appeal filed on 10 December 2020, Ms C states that she is dissatisfied with the decision of the Magistrate in the Children’s Court. I take this to be that she is dissatisfied with the order made in the Children’s Court refusing her leave;

The party dissatisfied, here Ms C, may, in accordance with the rules of the District Court, appeal to the District Court against the order;

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. There was fresh evidence including affidavit evidence relied on by the parties in the appeal;

The District Court may decide to admit as evidence the transcript of the proceedings before the Children’s Court and any exhibit tendered during those proceedings. A substantial amount of the material before the Children’s Court together with the transcript became part of Exhibit A;

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 Chapters 5 and 6 of the Care Act;

The District Court may confirm, vary or set aside the decision of the Children’s Court;

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;

The provisions of Chapter 6 of the Care Act apply to and in respect of the hearing of an appeal under s 91 in the same way as they apply to and in respect of a hearing of a care application under Chapter 6: s 91(8) of the Care Act. It should be noted that in hearing the appeal from the Children’s Court, the District Court is not bound by the rules of evidence unless the court determines that those rules are to apply: s 93(3) of the Care Act. Proceedings before the court are not to be conducted in an adversarial manner and are to be conducted with as little formality and legal technicality and form as the circumstances of the case permit: s 93(2) of the Care Act.

Principles applicable to the appeal

The court has been assisted by written submissions from the first defendant referring to the legal principles which are said to be applicable to the court’s determination of the matters before it on the appeal. Reference has also been made to the legal submissions made on behalf of Ms C in the Children’s Court.
As stated above, an application for the rescission or variation of a care order in relation to a child may only be made with the leave of the court: s 90(1) of the Care Act. The relevant orders in the present case were those final orders made by the Children’s Court on 26 July 2013: Exhibit A page 1. Under s 90(2) of the Care Act, the court may grant leave to an applicant if it appears that there has been a “significant change in any relevant circumstances” since the care order was made or last varied.
In JL v Secretary, Department of Family and Community Services [2015] NSWCA 88 Basten JA (with whom Meagher JA agreed) stated as follows at paragraphs [200]-[202]:

“200. Olsson DCJ rejected the appeal because she found that there had been “no significant change in relevant circumstances since the date on which the care orders were made.” While the separate parts of s 90 might have been better drafted, the apparent effect of s 90(2) is that the power to grant leave is only triggered where the Children’s Court is satisfied that a significant change in circumstances has occurred. That is a matter as to which the applicant bears the onus of proof. Any question of construction of the provision would involve a question of law, but otherwise the required satisfaction is a matter of fact. For reasons explained in Re Henry, unless the facts favourable to the applicant’s case were accepted by the trial judge and, on the basis of accepted facts (including those adverse to the applicant) there was only one conclusion reasonably open, no question of law arises.[7] For reasons which will be explained, the applicant was unable to establish the basic premises upon which error of law can be identified in a failure to make findings based on the evidence, being the primary basis on which the matter was approached.
201. Whilst considering the structure of s 90, two aspects of subs (2A) should be noted. First, it identifies certain matters which are mandatory considerations, to be considered before the court may grant leave to vary or rescind a care order. The factors are not narrowly limited, nor are they all of one kind. Thus, paragraph (a) requires the court to focus not on some general or more abstract consideration of the best interests of the child, but on the nature of the application being made in the particular case. As indicated by par (e), the purpose of examining the application is to identify whether the applicant has an arguable case. Otherwise, the matters identified as mandatory considerations have their own specific points of reference.
202. Secondly, the limited focus of a leave application may be inferred from the relatively limited range of mandatory considerations set out in subss (2A), as compared with those identified in subss (6) which are to be addressed once leave has been obtained and before making an order varying or rescinding an existing care order.”

Whilst his Honour was considering a prior version of s 90 of the Care Act, his comments are of assistance in relation to the approach to be adopted under the current legislation.
In summary, therefore:

The court may only grant leave where it is satisfied that there has been a significant change in any relevant circumstances since the care order was made;

On this matter the applicant bears the onus of proof;

The court must be satisfied of this as a matter of fact;

The court must take into account the matters referred to in s 90(2B) and (2C) which are mandatory considerations. Section 90(2B) sets out the “primary considerations” and s 90(2C) sets out “additional considerations”.

In S v Department of Community Services [2002] NSWCA 151, Davies AJA stated as follows in paragraphs 23 and 27 of his Honour’s reasons for decision:

“23. I should observe that a person seeking leave to apply for the rescission or variation of a care order is not required to prove on such an application that, if leave be granted, the person would be entitled to the order sought. The first step is simply to establish that there has been a change of sufficient significance to justify the consideration of an application for rescission or variation of the care order.
…
27. The words "strictly on the evidence before me" and the reference to the date, 30 November 2000, indicate that the Magistrate unduly narrowed his consideration of relevant factors. Section 90(2) uses the expression "a significant change in relevant circumstances". This requires a comparison between the situation at the time when the application was heard and the facts underlying the decision when the order was made or last varied.”

Therefore, a person seeking leave to apply for the rescission or variation of a care order is not required to prove in that application that if leave were granted by the court, that the person would be entitled to the order sought. The applicant has to establish there has been a change of sufficient significance to justify the consideration of an application for a rescission or variation of the care order. What is required is a comparison between the situation at the time when the application was heard by the court and the facts underlying the decision when the order was last made being in 2013.
It was made clear in the decision of the Court of Appeal in Re Jeremy [2017] NSWCA 220 that the court must consider first whether the alleged changes are “significant” and whether the circumstances are “relevant”. The court must then proceed to consider the question whether if they are both relevant and significant, the court is disposed to grant leave to the applicant. In doing so the court must take into account the mandatory considerations under s 90: see at [27] and [39]. Adamson J stated as follows at [47]:

“47. The power conferred on the District Court by s 90(2) of the Care and Protection Act to grant leave is subject to the requirement that it must appear “that there has been a significant change in any relevant circumstances since the care order was made or last varied”. The applicants raised various matters in the Court below which they contended met this threshold, including the birth of two further children who remained in their care, since the care orders were made. The Court below was obliged to reveal in its reasons why the circumstances raised were not “relevant”; or, if it was the case, why they were not “significant”; or, if they were both relevant and significant why the Court was nonetheless not disposed to grant leave. For the reasons which are addressed by Basten JA, the Court below did not reveal that these matters were addressed sufficiently to permit a conclusion that s 90(2) was correctly applied.”

The principles stated in Re Jeremy have not been revised or reconsidered in any later appellate authority.
The term “relevant circumstances” in s 90(2) of the Care Act has been widely construed. In Re Felicity (No 3) [2014] NSWCA 226 Basten JA (with whom Ward and Emmett JJA agreed) rejected the argument that the relevant circumstances under the section were restricted to the circumstances which formed the basis of making the care order in the first place. Basten JA held that the phrase “any relevant circumstances” in s 90(2) of the Care Act refers to “any circumstances relevant to the safety, welfare and well-being of the child”. His Honour regarded that this was consistent with the primary object of the Care Act set out in s 8(a): cf [25]-[26].
Under s 90(2C) of the Care Act, an additional consideration to be taken into account by the court is whether the applicant has “an arguable case”.
In the matter of Campbell [2011] NSWSC 761 Slattery J stated as follows at paragraphs [48]-[50]:

“48. The Courts' s 90(1) discretion is limited not only by s 90(2), but also by the requirement to take into account the s 90(2A) list of considerations. Care Act , s 90(2A) was inserted into the legislation by the Children and Young Persons (Care and Protection) Amendment (Permanency Planning) Act 2002 (NSW).
49. I agree with the observations of the learned President of the Children’s Court, Marien DCJ in his judgment of 20 September 2010 in this matter, that establishing significant change in a relevant circumstance is a necessary, but not a sufficient condition for leave to be granted: Re Kurt , 20/9/10, Children’s Court of NSW, unreported , Marien DCJ, at [32]. The Court retains a general discretion whether or not to grant leave after considering whether there has been significant change in any relevant circumstances since the care order was made or last varied. Care Act , s 90(2A) identifies the mandatory considerations that must inform the exercise of that discretion. Perhaps the most frequently analysed of these mandatory considerations is "whether the applicant has an arguable case": Care Act , s 90(2A)(e).
50. In a number of cases sitting as President of the Children’s Court, Marien DCJ has applied statements of Malcolm CJ in Dempster v National Companies and Securities Commission (1993) 9 WAR 215, upon the meaning of the phrase "arguable case". With respect, I agree with Marien DCJ that the phrase "arguable case" carries a meaning in this legislation similar to that in the legislation under consideration by Malcolm CJ in Dempster v National Companies and Securities Commission. There the Full Court of the Supreme Court of Western Australia was considering Justices Act 1902 (WA), s 187(1), which provided that an application for leave to appeal from the decision of a justice may be made only on certain specified grounds, and that "the judge should grant leave to appeal unless he considers that the appeal is frivolous or vexatious or that the grounds of appeal advanced do not disclose an arguable case". In Dempster v National Companies and Securities Commission Malcolm CJ said at [262]:-
"It was contended on behalf of the appellant that the expression "arguable case" in s 187(1) meant "capable of being arguable" (see The Shorter Oxford Dictionary). In my opinion, having regard to the context, an arguable case is one that is not merely capable of being argued, but one that is reasonably capable of being argued in the sense that it has an argument which has some prospect of success. In this context, "arguable case" necessarily has the same meaning as "reasonable case", as that expression is used in O 20 r 19 of the Rules of the Supreme Court 1971. The case must be one which has some chance of success: Republic of Peru v Peruvian Guano Co [1887] 36 Ch D 489 at 495."

Again, this decision considered a prior version of the legislation but the comments from his Honour remain of assistance.
Therefore, the concept of “an arguable case” under s 90(2C) of the Care Act is a case that is not merely capable of being argued, but one that is reasonably capable of being argued in the sense that it has an argument which has some prospect of success. It means a reasonable case which has some chance of success.
In Campbell, above, Slattery J held at [39] that although the court must consider the mandatory considerations under the section, a court in considering whether the applicant has an arguable case when considering a grant of leave under s 90(1), may need to look ahead to the relevant s 90(6) considerations which will be heard if leave is granted when analysing the arguable case requirement. Having regard to s 90(2) of the Act, it appears that the matters set out in s 90(6) are not mandatory considerations but remain relevant: see JL, above, at [124] and [185] and Re Campbell, above, at [39].
In Campbell, above, Slattery J held that what the section required was a realistic possibility of restoration which is real or practical and not fanciful, sentimental or idealistic or based upon unlikely hopes for the future. A sensible approach must be adopted by the court in considering the prospects if leave were granted.
The court retains a discretion in relation to the grant of leave. This is made clear by the use of the word “may” in s 90(2) of the Care Act. Thus, the court may decline the leave sought even if the applicant has established that there has been a significant change in any relevant circumstances since the care order was last made or varied: Re M (No 6) [2016] NSWSC 170 at [66]. The court must always take into account the paramount consideration of the safety, welfare and well-being of the child as referred to in s 9(1) of the Care Act.
Having regard to the statutory history, the authorities and the wording of s 90(2A), the main matters for the court to consider are the primary considerations in s 90(2B) and the additional considerations in s 90(2C). These will also be the main matters for the court to consider in the exercise of its discretion.
There was no reference in the submissions before this court to relevant provisions of the United Nations Convention on the Rights of the Child (1989) (“CROC”). It was not suggested by any party that the provisions of CROC would lead the court to a different determination. Certain provisions of CROC were referred to in Ms C’s submissions before the Children’s Court.
Under s 90(2D) of the Care Act, the court may dismiss an application for leave under the section if it is satisfied that the application is frivolous, vexatious or an abuse of process. No party suggested that the application fell within that description. I am comfortably satisfied that the application by Ms C is a genuine one and she has the safety, welfare and well-being of the two children in question as a prime consideration for her. I note that Ms C, from her evidence and submissions, believes that she has been treated unfairly and harshly by Wesley Dalmar and the Department which, in her view, have not properly taken into account the interests of the children, her submissions and the desirability of the children remaining with her. However, despite having those strong opinions, the application by her is a proper one and is clearly not frivolous, vexatious or an abuse of process.

Relevant background facts

It is necessary to set out some relevant background facts in the matter. Many of these facts are uncontroversial. More contested issues will be considered further below. Unless indicated to the contrary, these constitute my factual findings in the matter, subject to later factual findings in the course of considering the issues in the light of the submissions made:

The biological mother of the two children, Ms F, was born in June 19xx. As indicated above, Ms F appeared before the Children’s Court Magistrate and supported the two children remaining in their current placement. The children's biological father, Mr E, was born in November 19xx. He was legally represented before the Children’s Court Magistrate and opposed the leave sought by the plaintiff, Ms C.

The appellant is Ms C, who is a former carer of the children from 2013 to April 2019. At all times during that period, she was married and lived with Mr D who was also a former carer of the children. Those two persons separated on 5 April 2019.

The two children in question have various half siblings ranging in age from xx to very young children. The two children in question have had limited contact with those half siblings. Some of those siblings were, in 2010, placed under the parental responsibility of the Minister until age 18 by way of final orders from the Children’s Court.

On x August 20xx, the child A was born.

On x February 20xx, the child B was born.

In early 2013, the father Mr E allegedly assaulted Ms F. An apprehended violence order was made against Mr E in relation to Ms F in February 2013. Also in February 2013, the child A was taken into care. Also at about this time, the child B was taken into care.

The two children were placed in various temporary placements at the direction of the Minister.

Wesley Dalmar was the designated accredited agency in relation to the provision of out of home care for the two children.

On 26 July 2013, final orders were made in the Children’s Court placing the two children under the parental responsibility of the Minister until age 18.

The evidence suggests that a care plan prepared in June 2013 determined that restoration of the children to their biological parents was not recommended.

On about 9 August 2013, the two children were placed by Wesley Dalmar with authorised carers Mr D and Ms C. Mr D and Ms C have an adopted daughter, G, born in July 20xx. At all relevant times between 2013 and April 2019, G lived with Mr D and Ms C and the two children.

Between about 9 August 2013 and 5 April 2019, the two children remained under the care of Mr D and Ms C.

During the period 15 April 2014 to 28 November 2019, 21 risk of significant harm reports were received by the Department of Communities and Justice's helpline in relation to alleged concerns relating to the two children concerning Ms C and their care. These reports included that Ms C hit A on numerous occasions, pushed A's head underwater whilst in the bath, the children witnessed domestic violence perpetrated by Ms C against Mr D, Ms C treats differently and unfairly punishes A, Ms C locks A in her room at night, Ms C made A sleep in the bath tub and Ms C engaged in “raging behaviour”. The details of the risk of significant harm reports referred to are set out in an affidavit of Ms Rupp filed on 29 July 2020 in the Children’s Court and in the documents annexed to that affidavit. See Exhibit A page 20.

A number of these incidents were reviewed in a detailed report. On the evidence, it appears that Ms C disputes most but not all of the reports.

On or about 9 March 2019, there was a domestic violence incident at the home of the C and D when Ms C punched and kicked Mr D. At Mr D's request, Ms C left the home for a short period before returning. In her written submissions (pages 18-19), Ms C refers to the incident as “one episode early in 2019 where I lost control in a time of complete sensory overload, burnout and as a victim of years of emotional and psychological abuse” and states she “lost it”. In her affidavit sworn 3 June 2020 at paragraph 12 (Exhibit A page 7), Ms C admitted that she:

“…slapped Mr D with an open hand and punched and kicked him. This incident lasted for approximately 30 seconds. This was on 9 March 2019. I was deeply embarrassed by what happened and that the children saw the incident”.

A more detailed account of the incident is set out in the Complex Carer Review and Risk Assessment at Exhibit A page 200. Ms C attributes the cause of the incident to a lack of support from Wesley Dalmar, her husband's conduct, marital issues and difficult behaviour from A. The more detailed account includes phrases such as “I had reached my limit” and “I lost it”. Ms C described the two younger children as being “really upset” as was her older daughter who kept telling her to “stop”. Ms C agreed, according to the Risk Assessment, that the incident could be classified at least in present terms, as “domestic violence”.

It appears from the evidence that at about this time Ms C consulted her general practitioner. A mental health plan was devised for her. On the documentation, Ms C's general practitioner referred her to Dr K, psychologist, on 29 March 2019. He has seen Ms C on a number of occasions with their first appointment being 2 April 2019. Later consultations appear to have been focused on the effect on Ms C of the breakdown of her marriage and of the two children in question being taken out of her care.

Prior to the domestic problems between Mr D and Ms C, they were contemplating adopting the two children.

In March and early April 2019, Ms C attended an interview with representatives from Wesley Dalmar to review the position of the children. Ms C asserts in her submissions that the representatives were satisfied with the adequacy of the care provided by Ms C in that review which was never finalised.

On 5 April 2019, Mr D collected the subject children and G from school. He made contact with Wesley Dalmar and informed them at least in relation to the domestic violence incident at home involving Ms C. The two children were taken into emergency respite care by Wesley Dalmar pending a review. It appears that Mr D and G went to stay with G’s maternal biological grandmother for a period.

The evidence establishes that Ms C was “overwhelmed with the situation” and was “not coping”. A friend of hers attended her home and was of the view that Ms C should get medical attention as she had previously been diagnosed with anxiety and depression. Ms C presented to the emergency department at Z Hospital on 5 April 2019 but left the hospital before speaking to a social worker: Exhibit A page 371, paragraphs 19-22. The police attended the home of Ms C on 6 April 2019 and escorted her back to the hospital as they had indicated that a scheduling order had been issued under Schedule 1 of the Mental Health Act 2007 (NSW). Ms C then returned to Z to speak to staff and for a review and assessment. Ms C was discharged from hospital and consulted her general practitioner. She readily concedes in her affidavit that she had previously attended her general practitioner for mental health plans and had also been seeing a counsellor since 2015: Exhibit A page 372, paragraphs 23-29. In her October 2020 affidavit in the Children’s Court, Ms C noted that she regularly saw Dr K, her psychologist, and a counsellor. At the time of swearing that affidavit she also was taking prescribed medications which were antidepressants and for anxiety management where required: Exhibit A page 372, paragraphs 30-32. At paragraph 34 of the same affidavit Ms C states:

“Looking back at the time when my mental health was suffering, I was having difficulty with low mood and fatigue, as well as feeling overwhelmed. I also had peri-menopause … All of that exacerbated my anxiety and depression”.

Ms C states that, being aware of the issues with her health, she has “undertaken work to help prepare me for the return of the children to my care”. In later paragraphs in the affidavit, Ms C makes clear that she did not feel supported by Wesley Dalmar and it became difficult managing A's behaviours and caring for two other children in circumstances where she did not feel supported by Mr D and was seeking her own mental health treatment. Ms C describes in her October 2020 affidavit, A's behaviour in some detail and states that what she felt she needed at the time for the girls was for there to be “some respite care, structured and consistent therapeutic treatment for [A's] ongoing issues” and appropriate follow-up and support through school as well as trauma informed and “holistic family based therapeutic support”: Exhibit A pages 374-375 paragraphs 44-53.

In September 2019, the two children were ultimately placed with other Wesley Dalmar authorised carers in a country urban location in New South Wales where they remain.

Wesley Dalmar arranged for a Complex Carer Review/Risk Assessment to be undertaken by a person who they regarded as an independent assessor. The assessment was 96 pages in length: Exhibit A page 174. The assessment indicates that there was an interview with Ms C at her home on 28 September 2019. The assessment is very detailed. Parts of it are redacted. The recommendations in the assessment were that A and B not be returned to Ms C's care with the assessor holding concerns regarding her parenting capacity, mental health and ability to work cohesively with others. There was a reference to the need to repair the significant “fractured relationship” between Ms C and A. It was recommended that Wesley Dalmar de-authorise Ms C as a foster carer and that where there was contact between the two girls and Ms C, it remains supervised until Wesley Dalmar determined that Ms C had demonstrated sustained change pertaining to the risks identified in the report. It is also recommended that:

“[A and B] to be regularly consulted about their willingness to maintain their contact with [Ms C] and for observations of their emotional well-being and behaviours pre- and post-contact to be considered.”

Ms C criticises the assessment as being prepared following a confronting interview when she was still upset and being prepared without obtaining detailed material supporting her position.
The assessment document is very detailed. It is unnecessary to set out all the matters considered. Whilst providing a number of positive comments in relation to Ms C, the assessment also raised matters of concern. First, it indicated that the relationship between Ms C, Mr D and Wesley Dalmar had been “extremely strained”. Ms C's affidavit evidence and submissions support that view. Secondly, it was noted that a number of child protection reports had been sustained by Wesley Dalmar following a review with the concerns predominantly relating to Ms C's treatment of A. The report referred to Ms C's presentation to Z Hospital on 5 April 2019 with her being in a distressed state with a history of PTSD, anxiety and depression being noted. Positive 9 March 2019 case reviews were noted.
The report referred to the physical assault by Ms C on Mr D. It also referred to the difficulties and challenges in the relationship between Mr D and Ms C prior to the couple's separation. Ms C stated that Mr D “had emotionally left the marriage” and for 12 months she had been focusing on getting through the day with the children. The report records Ms C as saying that in relation to A, she became “exhausted and I lost sight of the little girl and just saw the behaviours”: Exhibit A page 201. The report records that Ms C accepted that she sometimes spent weekends in bed leaving Mr D to care for the girls due to “complete burnout and exhaustion from life as we were living it".
Ms C's health issues were discussed in some detail: Exhibit A page 204. Ms C is recorded as reporting suffering anxiety since her childhood and in 2018 she began having “panic attacks”. The report records Ms C as taking antidepressants since 2018. The report notes Ms C presenting at hospital in April 2019 “with suicidal ideation” which has been rejected by Ms C in her submissions. The report records that Ms C as accepting that she had burnout. The report records Ms C as saying that she experienced stress in her day-to-day life during the 18 months before her separation from Mr D and the children, and suffering migraines, nausea and becoming “teary”.
The various incidents of reportable conduct were then considered in the report. In relation to the allegation that Ms C had pushed the head of A underwater while in the bath, Ms C is recorded as agreeing that this occurred to rinse shampoo out of A's hair. It is reported that Ms C said that she had “lost her temper”. The conclusion was drawn that it was reasonable to find that this action potentially caused A distress: Exhibit A page 221. Ms C is recorded as agreeing that she had different parenting and behaviour management techniques for A, due to A having different needs and displaying different behaviour to the other girls. The report records that A was secured in her bedroom at night by the use of rope connected to A's door handle. Ms C is recorded as agreeing that this was done for the purpose of preventing A from leaving her room. The report records Ms C initially denying making A sleep in the bath tub and then later disclosing that she had made A sleep in the bath tub with a pillow. This appears to have been for behavioural reasons: Exhibit A pages 222-223. It was recorded that Ms C had a poor recollection in relation to some of the incidents: Exhibit A pages 224-225.
Importantly, the report indicated that Ms C presented as being highly motivated to care for the children in the long-term and was eager to provide additional information to the assessor that might influence the recommendation. Ms C’s skills as a carer were mentioned. Interviews were also conducted with A and B. The response from B was generally positive in relation to Ms C. The response from A was mixed, with A stating that she wished that Ms C “would stop being mean to me”. Some critical comments were made by A in relation to Ms C as recorded by the assessor.

There was extensive correspondence between Ms C and Wesley Dalmar following the children no longer being in Ms C's care. This voluminous correspondence was in evidence before the court. It would be fair to describe the correspondence as relentless and highly critical of Wesley Dalmar by Ms C. She clearly wished to have the children returned to her care as soon as possible and regarded the process of their removal from her care as being unwarranted and unfair. In doing so, she relied in particular on her perception of the situation as opposed to the events proceeding 5 April 2019.

On 29 October 2019, Ms C received a letter from Wesley Dalmar advising her that her authorisation as a foster carer for the out-of-home care program had been withdrawn.

On 12 November 2019, Ms C forwarded an email to Ms Edler at Wesley Mission commenting on the assessment report. This important and frank email included the following:

“... I wish to acknowledge that I have looked through the PCA report for common threads around my due diligence and concur that there is evidence of:
* poor parenting
* a lack of adequate protection
* disproportionate parenting choices and styles.
I clearly see opportunities to:
* prove my genuine remorse
* improve my own discernment and interpretations and abilities
* establish measures to make amends to repair and move forward.
The common personal threads I recognise include:
* My reactiveness and at times in the past my inability to control my temper.
* The at times unfair and unbalanced treatment / discipline (bullying) of [A] in comparison to [B and G].
* An inability to give up being right / winning
Due diligence in regards to the Parenting Capacity Assessment & Reporting/Recommendations process and documented material is of significant concern as briefly discussed with April This will be addressed elsewhere. However, I offer these personal understandings and undertakings above in good faith hoping that they will be considered fully, fairly and with integrity in terms of a collaborative way forward with reinstatement of my foster Carer authorisation and a restoration plan that involves shared parenting of the girls between [Mr D] & I.
My goals are:
* to develop healthy relationships
* repair and restore
* provide the best space for psychological, emotional and relational healing for my girls and us as a (separated) family as requested as part of the local resolution and appeals process.”

On one level, Ms C is to be applauded for being frank and open in this email. On another level, the email provides evidence of an honest and sincere desire on her part to improve her parenting skills. However, the email makes a number of concessions of evidence of poor parenting, a lack of adequate protection and disproportionate parenting choices and styles with an inability to control her temper and unfair and unbalanced treatment and discipline of A in comparison to B and G. These matters are concerning.

The email was sent soon after Ms C received a copy of the Assessment Report. After Wesley Dalmar confirmed their decision not to restore the children to her care and to de-authorise Ms C as a foster carer, on 10 December 2019, Ms C commenced proceedings in the New South Wales Civil and Administrative Tribunal against Wesley Dalmar. The evidence establishes that in June 2020 Ms C sought to withdraw the application and the Tribunal proceedings were apparently formally withdrawn on 26 June 2020.

A Ms N, psychologist, prepared a psychological report dated 18 May 2020. The two children were interviewed by video link for the purposes of the assessment. The report indicates that the interview by video link was difficult. B apparently wished to see Ms C again but A was more critical of Ms C referring to her “out of control” behaviour. She then indicated that she would be willing to see Ms C. Ms N stated that the girls' ambivalence about contact with Ms C and Mr D did not provide a strong argument in favour of contact and that both girls only wanted contact if it was positive. Ms N states:

“It is my view that [Ms C] (in particular) and [Mr D] must illustrate that they have heard the voices of the children and have come to an understanding of the damage they have caused before any contact is facilitated. [Ms C] must demonstrate that she has taken responsibility not only for the distress of recent years but possibly of the effects of preferential parenting and scapegoating”.

The view was even expressed that further work needed to be done before contact could occur.

Ms C is highly critical of this report as being selective and not involving her views or material.

In early June 2020, an addendum to the Complex Carer Review/Risk Assessment Report was issued following Ms C filing and serving evidence in NCAT in support of her application and requesting the assessor to review the information and considering if the evidence altered the recommendations made in the original assessment report: Exhibit A page 287. Following a review of the material, the assessor determined that the majority of the information was previously reviewed and considered when conducting the assessment report. The assessor described Ms C's “attempts to discredit individual remarks, inconsistencies, and actions, and to address some issues by enhancing her lifestyle and seeking support” but expressed the view that it did not adequately address the concerns identified over several years by numerous people in different situations. It said there were still significant questions about whether it would be in the girls’ best interests to restore them to Ms C's care. The assessor who prepared both reports was Ms L.

Ms C had numerous contact visits with A and B from April 2019 to mid-2020. A summary in relation to the contacts is at Exhibit A page 280. Clearly different perceptions can be held in relation to the contacts. Overall, the summaries of the contact visits are positive in relation to Ms C but with B being much more positive to Ms C than A.

On 4 June 2020, Ms C filed her application for rescission/variation of care order in the Children’s Court under s 90 of the Care Act. This has been described in detail above. This application was heard by Children’s Court Magistrate Devine on 23 October 2020 and 10 November 2020 and the learned Magistrate handed down his decision on that day following receiving submissions. Ms C's application for leave was dismissed as set out above.

As indicated, the children were placed with their current carers in September 2019. There is extensive evidence in the affidavit of Ms H, a case manager at Wesley Dalmar, in relation to the current placement: Exhibit A page 107 paragraph 31 and following. The evidence overall shows that both children are progressing well at school and are receiving therapeutic intervention from a psychologist, and being reviewed by a paediatrician. A has been diagnosed with complex childhood trauma/PTSD, reactive attachment disorder/generalised anxiety disorder and attention deficit hyperactivity disorder and oppositional defiance disorder. B has been diagnosed with complex PTSD and attention deficit hyperactivity disorder. More recently, the paediatrician has been very positive in relation to B's progress. Both girls take medication related to their diagnoses which has been prescribed by the paediatrician which is reviewed every month: see Exhibit A at pages 1079-1082.

On 12 June 2020, Ms C was asked to sign undertakings in relation to her future conduct at contact visits with the children. She agreed to the undertakings with a slight variation. Since June 2020, the two children have had contact visits with both Ms C and Mr D. Contact visits have been affected by the COVID-19 pandemic. The two children have had face-to-face visits since August 2020 on 4 October 2020, 13 December 2020 and 6 June 2020. On 7 March 2021, B only had a face-to-face visit with Ms C, apparently because A did not wish to attend the visit. There are detailed contact reports in relation to the visits: Exhibit A page 1008 paragraph 38 and the documents there referred to.

The children's current carers have told Ms H during home visits to the children on a number of occasions that both girls are “heightened” for a week or so after the visits with Ms C and that it takes about a week before they become calm and settled again. Further visits with Ms C are scheduled for September and November 2021. Visits with Ms C were suspended for a period of time between March 2020 and July 2020 as the children informed Ms H that they did not wish to see her. There were also COVID-19 restrictions in place. After some time, the children agreed to start attending visits with Ms C again with the first occurring on 4 October 2020.

Ms C presents in her evidence and submissions that these contact visits have been very positive. The contact reports show in particular that B has a positive relationship with Ms C. Ms C has also been diligent in sending presents and letters/cards to the children which is to her credit. Ms H expresses the opinion in her affidavit that some of the visits with Ms C have been “strained” and a “particularly negative experience”, especially for A. Anger from A towards Ms C was shown in the December 2020 visit. Ms H expressed the opinion that Ms C was rude to staff. Ms H claims that A indicated on 1 March 2021 that she did not want to attend the planned visit on 7 March 2021 with Ms C and that the visit went ahead with only B an attendance. However A attended the 6 June 2021 visit with Ms C, although A later indicated to Ms H that she did not enjoy herself at the 6 June 2021 visit and did not want to attend the next visit with Ms C. B told Ms H that she liked the visit.

The evidence establishes to my satisfaction that Ms C is enthusiastic about contact visits with the children, wishes to retain close contact with them and makes every effort to make the contacts a success. It is clear that B is closer and more positive in relation to the visits with Ms C. A is varied in relation to her reaction to the visits but is on a number of occasions negative and critical of Ms C.

The evidence satisfies me that the two children are currently settled in their schools in the major town on the north New South Wales coast and are progressing well at school. I am also satisfied that the placement with their current carers is a happy and successful one and that the children are receiving proper care and engaging in a wide range of activities. On the whole, the children appear to have settled well following the termination of their placement with Mr D and Ms C.

I will discuss Ms C's submissions further below. The whole of the evidence and the submissions satisfy me that Ms C is determined and enthusiastic in attempting to regain care of the two children. She is highly critical of the Department and Wesley Dalmar in relation to their past actions. I will refer to some of her language used in submissions further below. This raises real issues in relation to the likelihood for there to be a constructive relationship between Ms C and the Department and Wesley Dalmar in the event that an initial restoration of care or the ordering of parental responsibility with Ms C in relation to the two children occurred.

Additional comments on the evidence

Reference has been made above to the voluminous documentation which was provided to the court as part of Exhibit A. This included some of the material which had been reduced placed before the Children’s Court and substantial additional material placed before this court.
The appellant, Ms C, was legally represented before the Children’s Court. In her material, she has indicated that not all her evidence was placed before the Magistrate in the Children’s Court as she believed, based on advice, that leave was likely to be granted and she could place her entire material at the full hearing as to parental responsibility orders. Despite this, it is clear that substantial materials were placed before the Magistrate and Ms C has had a full opportunity to place further affidavit evidence before the court.
Ms C relied on two affidavits before the Children’s Court dated 3 June 2020 and 9 October 2020. In the affidavit filed 3 June 2020, Ms C gives a background to the matter including the circumstances relating to the removal of the two children from her care, matters relating to the relationship with her husband and a discussion about the incident of domestic violence committed by her on 9 March 2019 in the context of difficulties in the marriage. Ms C provided details relating to her work, the medical conditions of the two children and the efforts which she took to support the two children in the light of behaviour issues with A. She asserted that she sought assistance from Wesley Dalmar which was not forthcoming.
Ms C gives evidence that in the three to four years prior to the preparation of the affidavit she “began to struggle with anxiety and depression as a result of these ongoing issues and the lack of support I received from [her husband] at the time”: Exhibit A page 10, paragraph 41. She describes the act of domestic violence as a “minor event in an otherwise safe, suitable and stable placement for the children”: Exhibit A page 10, paragraph 44. Ms C gives detailed evidence relating to the care of her adopted daughter. She also provides substantial commentary on her carer de-authorisation and the allegations made of her of inappropriate conduct concerning the two children. There is also detailed evidence in relation to the period after the children left her care and the NCAT proceedings which she commenced. Complaints were made about the lack of contact with the children in the light of the significance of her role in the eyes of the children: Exhibit A page 15, paragraph 107. Ms C’s proposals for the reintroduction of contact in the light of her application were provided. She gave evidence of her ability to provide the children with a safe, stable and suitable placement and there is evidence given in relation to her family support.
In her affidavit dated 9 October 2020, Ms C provides detail of her work experience and qualifications, her mental health issues on 5 April 2019, her subsequent treatment, the medication she takes and the medical and other treatment which she had arranged for the children prior to April 2019. Ms C states that since 2 April 2019 she has “engaged with a psychologist, [Dr K]” and has found that “incredibly helpful”: Exhibit A page 381, paragraphs 101-102. There is substantial material of a critical nature relating to her dealings with Wesley Dalmar, both before and after the cessation of her day to day care.
The Department filed an affidavit of Kathleen Rupp on 29 July 2020. This provided the background to the relevant family relationships, the current orders and care plan and risk of harm reports received relating to the children between 2014 and 2019 which are discussed in some detail. A copy of the reports is annexed to the affidavit.
There is included an affidavit of Tim Goble of Wesley Dalmar dated 5 August 2020 in the NCAT proceedings noting that Ms C had withdrawn her application in NCAT on 26 June 2020. The annexures to the affidavit include matters relating to the investigation undertaken following the removal of the children from Ms C’s care by Wesley Dalmar (Exhibit A page 146) and various correspondence with Ms C. An important document is at Exhibit A page 158 where Ms C admits issues with her parenting, inability to control her temper and differential treatment of A compared to B and G.
At Exhibit A page 174 is the detailed Complex Care Review Risk Assessment report which has previously been discussed and which is criticised by Ms C. Also in Exhibit A is the addendum to the Complex Carer Review dated 2 June 2020 which in essence came to the same conclusion.
At Exhibit A pages 562-578 are various documents relating to Ms C’s parenting courses and other courses she has attended and a detailed curriculum vitae which has already been discussed, above. At Exhibit A page 613 and following are photographs from contact visits with the children. Also included from page 615 are references provided in support of Ms C and her objective to retain care of the children including from the mother of the biological father (at Exhibit A page 615).
At Exhibit A page 621 is a Position Statement dated 21 July 2020 by the Independent Legal Representative for the children which indicated that the Independent Legal Representative was not yet able to adopt a position in relation to the application. At the hearing, the Independent Legal Representative opposed leave: Exhibit A page 660.17.
Included in the bundle are the detailed submissions prepared by the legal representative for Ms C before the Children’s Court. I have reviewed these including the transcript before the Children’s Court and the decision of the Children’s Court Magistrate: Exhibit A page 693.
From page 716 of Exhibit A is the documentation in this court. Ms C has provided three affidavits in this court dated 11 March 2021, 23 June 2021 and 24 July 2021 as well as detailed written submissions.
The first affidavit dated 11 March 2021 largely relates to procedural matters but asserts in paragraph 9 that there is significant evidence that showed Wesley Dalmar was more inclined to be “weaning the children away and severing the attachment than they are in strengthening it”: Exhibit A page 722. In paragraph 11, Ms C indicates that she intends to do all she can to ensure the best possible life for the children.
In her second affidavit dated 23 June 2021, Ms C provides a detailed analysis by her of the period after the children ceased to be in her care which is highly critical of Wesley Dalmar and refers to a “significantly compromised” investigation with Wesley Dalmar having “colluded with [Mr D] and another family member who reported malicious, unbalanced and self-justifying slander”: Exhibit A page 771, paragraph 14. Ms C in paragraph 20 states that she was “unrelenting” in her continuing efforts with Wesley Dalmar to provide support for the children’s behaviour issues. Ms C asserts that she has remained fully committed to the girls and the preservation and strengthening of “her family unit”: Exhibit A page 772, paragraph 21. Of course, this family unit no longer includes Mr D since the separation.
In paragraph 22, Ms C asserts that she spent the last two years “healing herself, her xxx daughter and our family unit whilst attempting to counteract the further trauma that has been inflicted by the funded service provider and DCJ”: Exhibit A page 772. Substantial commentary is provided in the various reviews following April 2019 which need not be summarised in these reasons. At paragraph 49, Ms C again asserts that she intends to do all she can to ensure the best possible life for the children. Some detail is given in relation to the plaintiff’s employment and ability to look after the children. There is voluminous material annexed to the affidavit including reports from the plaintiff’s psychologist, Dr K, which express the opinion that Ms C has responded well to psychological treatment and management following the breakdown in her marriage and her children being removed from her care: Exhibit A page 836. [Not for publication - confidential].
In her affidavit dated 24 July 2021, Ms C gives evidence of the work she did in preparing photo books and life story books for the two children and attempts she has made to remain in contact with the children including through personal contact, the sending of letters, gifts and photographs. She asserts in paragraph 14 that Wesley Dalmar has continued “to systematically undermine the emotional well-being of the children by their relentless refusal to consider any changes to the current family contact plan with me”. In paragraph 10, she asserts that the treatment by Wesley Dalmar of her is “antagonistic, neglectful and abusive”. In paragraph 15 she refers to an allegation of “systemic abuse of process” by Wesley Dalmar.
In the evidence in this court is an affidavit of Ms H, a case manager at Wesley Dalmar, dated 16 July 2021. This has been referred to above. It provides a detailed background to the two children, the placement with the Ms C and Mr D, the allegations against Ms C of inappropriate conduct relating to the children, the NCAT proceedings, the proceedings in the Children’s Court and a detailed discussion of contacts of the children with Ms C up to the date of the affidavit. As discussed above, the affidavit annexes reports of the children’s current paediatrician, Dr J Kerr, in relation to the treatment of their conditions and their current medication.
As has been stated above, no oral evidence was given in the proceedings.

Submissions

Submissions of the appellant Ms C

Ms C provided detailed written and oral submissions in support of her appeal. These submissions had a covering email dated 4 August 2021 sent at 11.47am which is on the court file and includes the following:

“I trust that it is appreciated how emotive it is to be the participant in this matter let alone, self-representing. It has therefore been extremely challenging to detach as I might if working on behalf of someone else."

The submissions overall emphasise Ms C's basic case that it was, in her view, in the children's best interests to be restored to her care with her having parental responsibility for them. The submissions were at times emotive in their terms, which is not surprising in the circumstances. The submissions are highly critical of Wesley Dalmar and the first defendant Department. In particular, it is asserted by Ms C that for many years she was a parent who lived with a lack of support from her former husband and Wesley Dalmar. She emphasised the steps which she had taken in the children's best interests including obtaining appropriate psychological and medical help for them.
These submissions include the following phrases which give an indication of a number of aspects of the submissions:

“As a result of a judgment call made by [Wesley Dalmar] and by default [the first defendant], which resulted in brutal circumstances and traumatic consequences, I am here today…";

Ms C appeals to “preserve [the children's] innocence & identity not just of their loved foster & almost adopted family but their family of origin story”;

Ms C appeals to “attend to their broken trust, disarranged thoughts & emotions and stuck sense of reality”;

Ms C asserts that without support from her ex-husband and Wesley Dalmar she was left “to help manage the cumulative effects of ongoing trauma based behaviours on [her] own [which] left me in burnout”;

“Wesley Dalmar provided no insight at any stage or offered any suggestions at a time when the placement was difficult”.

It is unnecessary to set out in great detail all of Ms C's submissions. They have been reviewed and considered by the court. In summary, the following submissions were made:

The threshold for the original s 90 application in the Newcastle Children’s Court in 2020 was met by Ms C and uncontested by all parties - it is assumed that this is a reference to there being established a significant change in relevant circumstances within s 90(2) of the Care Act;

Procedural fairness was not met in the Newcastle Children’s Court in 2020 as the first defendant “submitted more than was needed for the granting of leave purposes” - having reviewed the transcript and the submissions of the legal representative appearing for Ms C, I saw no arguable breaches of procedural fairness. Ms C was represented by a lawyer in the hearing in the Newcastle Children’s Court and the Children’s Court Magistrate appeared to give every opportunity for appropriate submissions to be made. There is no basis in law and on the facts for this submission. Similarly, the court rejects the submission that Ms C was never given an opportunity to submit her complete evidence;

On the leave application, if leave is granted, Ms C would have an opportunity to submit further evidence where appropriate;

The first defendant Department inappropriately relied heavily on Wesley Dalmar for information about the case. The evidence provided by the first defendant was based on “inconsistent, incomplete, unproven, skewed, and slanderous material provided by Wesley Dalmar”;

Ms C gave a detailed account in her submissions of her family circumstances and the placement of the children with her;

Ms C's xxx adopted child is happy for the children in question to return to Ms C's care;

Throughout the children's placement, there was no or limited case management or carer support provided by Wesley Dalmar. Ms C was forced to rely on her own family and other contacts. The case managers from Wesley Dalmar changed frequently. Limited information was given about A's childhood trauma with her birth parents to Ms C. The stress and lack of support from Wesley Dalmar was impacting on Ms C's marriage “greatly”;

The intensity of A's behaviours was also having an impact on the mental health of “her sisters and [Ms C]”;

There was frequent challenging behaviour of A, due, it appears, to earlier trauma;

The intention of Ms C was always for adoption as the permanency plan for the children with Mr D and Ms C. It was raised at all case plan reviews;

The children, particularly A, had a number of medical conditions, which were diagnosed and a treatment plan put in place following actions by Ms C. Substantial steps were taken by Ms C at the time in relation to these matters;

Ms C complained about Wesley Dalmar and a complaints process was put into action which resulted in communication and interaction with Wesley Dalmar by Ms C becoming “more fractious”. From 2017-2019, there were behavioural issues with A and “life became increasingly hard going for all in our family”. Little support was provided by Wesley Dalmar;

Ms C agreed that she treated A differently at times because “her trauma and behavioural responses were different to that of her younger sister”. Ms C was struggling to deal with A's “trauma based behaviours” without Wesley Dalmar support. Wesley Dalmar's inaction was the “key to the situation that eventuated in the breakdown of the placement”. Their action to remove the children had the effect of “destroying the family unit”. There was alleged collusion between parts of Wesley Dalmar and Mr D regarding “the relinquishment of the children back into the care of the agency”;

Ms C was an active advocate in relation to the interests and needs of the children with Wesley Dalmar. She submitted that she was “often quick to point out where problems or potential problems lay and did not hold back in advocating for the children”;

The Parenting Capacity Assessment Report was flawed and not independent. The interview of Ms C occurred when she was still undergoing trauma, uncertainty and grief and was therefore inappropriately timed;

There were similar problems with other reviews;

The Parenting Assessment Report is now out of date and Ms C offers to participate in any independent assessment;

The investigations relating to child protection allegations and concerns were inadequate. Allegations were substantiated despite them being unproven and untrue. Allegations of repeated domestic violence within the home had been made when there was only “one episode early in 2019 where I lost control in a time of complete sensory overload, burnout and as a victim of years of emotional and psychological abuse” and “lost it”;

In Re Tracey [2011] NSWCA 43, Giles JA (with whom Spigelman CJ agreed on the least intrusive point) stated that it was not correct that compelling reasons were normally required in order to interfere with existing care arrangements. The safety of the child was paramount. Different circumstances arise where there is interference with care arrangements with outside carers as opposed to the position where there is consideration as to whether the child should be returned to his or her family, but preference for continuance of existing care arrangements may be a material matter in determining where the paramount safety, welfare and well-being of the child lies on an application to vary or rescind a care order: at [78]-[83].
As stated, the two children have been in a secure and long term placement for nearly two years and the evidence supports the conclusion that the children are settled, happy and appear to get on well with their carer family.
The first defendant submits that to disrupt the security and attachment they have established over the last two years, particularly given the vulnerabilities and diagnoses of the children, increases the risk of psychological harm to the children in the context of there being plans in place to meet their current psychological and medical needs. It is submitted that the least intrusive option that is in the children's best interest is for the continuation of their current stable and secure placement, including in their current school environment where they have done well.
Ms C points to the positive and happy long term placement of the children with her and her adopted daughter and her positive arrangements for housing and their well-being if she is given parental responsibility.
I find that the children have been in a secure, happy and permanent placement for nearly two years with the current carer family and they appear to be doing well. They have moved to a new country town, in a new school and appear to be doing well at that school. They are receiving appropriate medical and therapeutic care with plans which have been prepared. Returning the children to the care of Ms C would involve them changing schools where they are currently settled and doing well and also changing the care environment which previously involved Mr D.
Having considered all the submissions of the various parties, in my view in the light of my finding that the current care arrangements are stable and secure and the children are happy, the course that would result in the least intrusive intervention in the life of the young children is for them to remain in their current care placement. I have considered the submissions and evidence of Ms C and do not doubt her sincerity and belief that it is in the children's best interests to return to her care. However, nearly two years have passed since the children left her care, they have grown older and they are doing well at school. They are involved in outside school activities. The stability of the current arrangements and their current schooling in a different town strongly indicate in my view that it is in their best interests to stay in their current stable and secure placement.

Section 90(2C)(a) - The age of the children

I have already referred to the ages of the children above. The child A is 10 years of age. The child B is eight years of age.

Section 90(2C)(b) - The nature of the application

The substantive orders sought by Ms C in her Notice of Appeal are for parental responsibility to be allocated to her with the result that the two children will return to live with her and her adopted daughter. Ms C has indicated a desire to have more regular contact but that matter is not before the court on the appeal. That is something she can pursue in the Children’s Court.
As indicated in the history which has been set out, Ms C has been de-authorised as an approved carer by Wesley Dalmar. As a result, the allocation of parental responsibility to her is the only order available if the children are to be returned to her care.

Section 90(2C)(c) - The plans for the children

Ms C's plan is for the children to be returned to live with her following the allocation of parental responsibility to her. On the evidence, she has secure housing and there is satisfactory schooling available where she lives.
If the children remain in their current placement, the evidence indicates that they will continue with their current schooling and the current care plans for them which have been approved.

Section 90(2C)(d) - Whether the applicant has an arguable case

As has been set out above, In the matter of Campbell [2011] NSWSC 761 Slattery J approved the description of an arguable case as one that is not merely capable of being argued, but one that is reasonably capable of being argued in the sense that it has an argument which has some prospect of success. It means a reasonable case: at [50]. See also paragraphs 26-27 of LZ v Secretary, Department of Family and Community Services [2019] NSWDC 156.
As submitted by the first defendant, the assessment as to whether the applicant has an arguable case is one made of the substantive s 90 application if leave were granted. Therefore, on the authorities, the matters in s 90(6) of the Care Act which relate to the substantive action must be taken into consideration.
As submitted by the first defendant, there is a significant overlap between the matters set out in s 90(2B) and 90(2C) and s 90(6). The factors in s 90(6)(a), (b) and (c) have already been considered.
Section 90(6)(d) of the Care Act refers to the strength of the child's or young person's attachments to the birth parents and the present caregivers. On the evidence, the children have had limited involvement with the birth parents since they were taken into care in 2013. The children have been with their present care givers for nearly two years and there seems to be a good attachment with them. As indicated, the children were with Ms C for a considerable number of years but that was in the context of Mr D also being in the relationship at that time.
There is no doubt that Ms C is an intelligent person who is committed to the children and is forthright in standing up for them. B is attached to Ms C and appears to enjoy contact with her. The position of A is more complex and she occasionally does not want to see Ms C or is upset during or after visits.

Section 90(6)(e) - The capacity of the birth parents to provide an adequate standard of care for the child or young person.

The court accepts the submission on behalf of the first defendant that although this subsection refers to the capacity of the birth parents to provide an adequate standard of care for the child or young person, this would appear to direct attention to Ms C in the present case. There is no evidence that the birth parents have any current capacity to provide an adequate standard of care for the two children. Ms F did appear to be concerned about the children during her presence before the court by AVL.
Ms C in her submissions and affidavit evidence states that she has good housing available for the children and a loving home environment with her and her adopted daughter, in circumstances where the children have spent a considerable portion of their lives in her care. Of course, Mr D is no longer in that household and he was also involved in the care of the children in that period. The current focus of consideration is Ms C herself.
The first defendant submits that Ms C does not have the capacity to provide an adequate standard of care for the two children. The first defendant refers to various substantiated incidents involving A and the children's exposure to domestic violence involving an assault by Ms C on Mr D. The first defendant also refers to Ms C's admitted conduct in providing differential treatment to A which is said to have continued through contact events. [Not for publication – confidential]. It is said that the reports of Ms L involving an assessment of Ms C's parenting capacity in 2019 and 2020 are persuasive and found a significant risk to the children from the parenting of Ms C. It is submitted that the court would conclude in respect of Ms C's capacity that although Ms C has some strengths, including a strong desire to care for the children, she lacks the overall capacity to care and this poses a significant risk to the children particularly in the light of inappropriate stress reactions and her having limited insight into her own capacity. In particular, it is submitted that Ms C lacks the capacity to provide for the children's emotional and psychological well-being.
Ms C disputes these submissions and criticises the reports of Ms L as being based on limited information and a consultation with her at a time when she was upset following the collapse of her marriage. Ms C points to the material referred to in her submissions as showing that she has the capacity. She criticises the approach of Wesley Dalmar strongly and submits that she was given limited support prior to April 2019.
Having considered the evidence and the submissions made, I am not satisfied that I can make the positive conclusion sought by the first defendant that Ms C does not have the capacity to provide an adequate standard of care to the children. However, the evidence leads me to the conclusion that I have serious reservations about the capacity of Ms C to provide an adequate standard of care to both children in all the circumstances for the following reasons:

The domestic violence involving Ms C and Mr D in the presence of the children is significant. Although it may have been a one-off incident, it was violent and completely unacceptable. Ms C acknowledges that. She clearly lost her temper which is of concern despite her recent treatment with Dr K;

There are a number of incidents which I am satisfied occurred on the evidence, relating to A being locked in her room and required to sleep in a bath tub which in my view are unacceptable. The latter is denied by Ms C but is supported in the 2019 interview with Ms C by Ms L which is more contemporaneous. The former may have been initiated by Mr D as Ms C asserts, but she accepted it;

Ms C has accepted on the evidence that she provided differential treatment to the child A compared to the child B. The contacts with the children have shown in my view that Ms C is much closer to B than A and that A is wary of her. Ms C also agreed to “bullying” in an email in 2019;

[Not for publication – confidential];

The reports of Ms L and Ms N raise significant issues relating to Ms C's care of the children. While no assessment can be complete, the parenting assessment of Ms L in 2019 was in my view substantial and thorough and included an interview of Ms C. I accept that Ms C may still have been upset at the time due to the collapse of her marriage. The conclusions of Ms L are consistent with the content of Ms C’s email sent on 12 November 2019: Exhibit A page 158;

The picture created by the evidence before me was that Ms C was under extensive stress and was burnt out in the year to two years prior to 5 April 2019. This was the period in which the domestic violence incident occurred. Ms C, to use her own words, “lost it” at that time. This raises concerns as to Ms C’s temper: see Exhibit A page 158. I accept that Ms C has made efforts to obtain appropriate treatment since that time;

All parties accept that the children should not be separated. On all the evidence, Ms C seems to have a lesser capacity to relate to and manage A and in my view, there is a risk to A, given her complex medical condition, if she returns to Ms C's care. I have real doubts whether Ms C has appropriate parenting capacity in relation to A;

Although Ms C has obtained appropriate professional support from a psychologist, her stress reactions to various incidents give me cause for real concern if there was repeated behavioural conduct by A following a resumption of care with Ms C;

Ms C's submissions show a strong inclination to blame others and to be defensive in relation to her own situation. These submissions particularly focused on Wesley Dalmar and limited mention was made of Ms C’s own issues and conduct leading up to 5 April 2019. I am unable on the evidence to determine whether there is substance in Ms C’s complaints about Wesley Dalmar;

The court notes Ms C's extensive qualifications as a counsellor. In the light of her extensive experience and training it is of concern that she acted as she did prior to April 2019;

The contact reports display a continuing differential between A and B and raise concerns about Ms C's ability to deal with A in circumstances where A is critical of Ms C and appears to recall incidents of differential conduct by Ms C towards her.

Section 90(6)(f) - The risk to the child or young person of psychological harm if present care arrangements are varied or rescinded

The first defendant has real concerns for the children's safety, welfare and well-being if they are returned to the care of Ms C. It is submitted that the children, particularly A, have experienced significant psychological harm arising from Ms C and their care in the placement of Ms C. It is submitted that Ms C has demonstrated a lack of insight into the difficulties the children would find in adjusting back to living with her and that the placement of the children with Ms C would constitute an unacceptable risk of harm in her care.
Ms C submits that there is no risk and that with management it is in the children's best interests to be returned to her loving care.
In considering this issue, I take into account the material before me including the affidavits, the contact reports, the mental health history of Ms C and the treatment which she has received since 5 April 2019, the references made in relation to her and the views of the children which I have referred to above.
As stated, the children appear happy in their current placement and they are doing well in their new schools. They have been there for nearly two years. They are receiving appropriate medical and allied health care. Having reviewed the material before me and considered the submissions made by the parties, in my view there is an unacceptable risk to the children of psychological harm if the present care arrangements are varied and disrupted and the children are returned to Ms C's care for the following reasons:

As indicated, the children have been in their current placement for nearly two years. They are well settled. They are doing well at a new school in a new town. The relationship with their current carers appears to be good;

Both children have indicated that they do not wish to be returned to Ms C. If they were required to do so, I believe it would indicate to them that their views were not properly taken into account or were ignored or given little weight;

The evidence before me establishes that while there is a good relationship between B and Ms C there is not a strong relationship between A and Ms C. The relationship since April 2019 has proved difficult and on at least one occasion A has refused to attend a contact visit. On another occasion, A appears to have alleged clearly inappropriate conduct by Ms C. The fact that A appears to believe this is relevant;

Mr D, with whom the children appeared to get on reasonably well, is no longer in Ms C's household. He receives separate contact access. There will be no other adult in the household as there was before 5 April 2019;

The fact the children have already been diagnosed with complex PTSD is relevant to the risk of being placed with Ms C compared to their current arrangements;

Ms C had mental health issues prior to 5 April 2019 which have been acknowledged by her. She has received treatment for those issues but they are relevant to a consideration of the risk of psychological harm;

Ms C was involved in a serious act of domestic violence against Mr D in the presence of the children which is completely unacceptable;

Ms C appears to focus on complaining about the conduct of others rather than having a proper assessment of her own failings prior to 5 April 2019. This demonstrates a lack of insight by her. In my view this is something which she should carefully consider. No detailed plans have been put forward to the court by Ms C about how she would deal with the children's psychological needs into the future if the children were returned to her care and there was conflict or bad behaviour;

The de-authorisation of Ms C as a carer indicates that the orders sought by Ms C must see her exercise parental responsibility for all aspects of the children's care without regular oversight;

There is not before the court evidence adduced by Ms C of a comprehensive mental health assessment although the court notes the reports of Dr K;

In the end, the disruption to the children after nearly two years in their present position where they are happy and settled in my view poses a real risk to the children of psychological harm having regard to their medical reports.

In my view, in all the circumstances, the return of the children to the care of Ms C, particularly in the light of the views of the children and the position of A, would pose an unacceptable risk to the children of psychological harm having regard to the period which has passed since they were in the care of Ms C.
For all of these reasons, in my view Ms C does not have an arguable case within the authorities. The various factors which I have set out lead to the conclusion that the case of Ms C is not one that is reasonably capable of being argued in the sense that it has an argument which has some prospects of success.

Section 90(2C)(e)

There is no evidence of there being a s 82 or a s 85A report prepared in these proceedings.

Conclusion on the relevant factors

Clearly the Care Act indicates that the factors in s 90(2B) and 90(2C) are the relevant considerations which must be considered by the court. The matters in s 90(6) have also been taken into account as indicated above.
Section 90(2) of the Care Act clearly indicates that the court has a discretion in relation to the granting of leave. In my view, having considered all of the evidence and the submissions of the parties including the views of the children in the context of their ages, I accept the submission of the first defendant, the mother and the Independent Legal Representative, that the court should not be satisfied that leave should be granted to Ms C as sought. The paramount consideration in s 9(1) of the Care Act is crucial. The following factors are significant in my view:

The period of time the children have been in their current placement;

The success of the current placement. The fact the children are doing well at school is important. Also important is the fact that the children are getting appropriate medical and allied health care and are engaged in positive recreational activities;

The fact the children have a positive relationship with their current carers;

The circumstances of the breakdown of the family unit in April 2019 following the act of domestic violence and Ms C having significant mental health issues;

The differential treatment by Ms C of A;

The children's views in relation to returning to Ms C's care;

The unacceptable risk of psychological harm to the children if their current arrangements are interfered with.

I wish to make it clear that I have no doubt that Ms C is an intelligent and capable parent who has the potential to provide children with a positive caring environment. Her success with her adopted daughter should be applauded. Her commitment to the children over many years in getting treatment and in advocating for their interests is noted. Her close relationship with B is particularly significant.
However, the above matters lead me to the conclusion that it is inappropriate to grant leave in the exercise of my discretion. I do not believe Ms C has an arguable case if leave were granted.

In all those circumstances the court makes the following order:

The appeal is dismissed.

The order of the Children’s Court made on 10 November 2020 is confirmed.

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Decision last updated: 10 September 2021

Medium Neutral Citation:	C v NSW Department of Communities and Justice [2021] NSWDC 479
Hearing dates:	3 August 2021 (mention); 4 August 2021; 5 August 2021 (Newcastle) 12 August 2021 (Newcastle at Sydney)
Date of orders:	1 September 2021
Decision date:	01 September 2021
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) The appeal is dismissed. (2) The order of the Children’s Court made on 10 November 2020 is confirmed.
Catchwords:	CHILD WELFARE – care and protection of children – care and protection orders – appeal from Children’s Court to District Court – application by prior carer for leave to apply to the Children’s Court to vary or rescind orders made
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 (NSW) Children and Young Persons (Care and Protection) Amendment Act 2018 (NSW) Court Suppression and Non-publication Orders Act 2010 (NSW) Mental Health Act 2007 (NSW)
Cases Cited:	In re Jeremy [2017] NSWCA 220 In the matter of Campbell [2011] NSWSC 761 JL v Secretary, Department of Family and Community Services [2015] NSWCA 88 LZ v Secretary, Department of Family and Community Services [2019] NSWDC 156 Re Tracey [2011] NSWCA 43 S v Department of Community Services [2002] NSWCA 151
Texts Cited:	United Nations Convention on the Rights of the Child (1989)
Category:	Principal judgment
Parties:	Ms C (Plaintiff) New South Wales Department of Communities and Justice (First Defendant) Mr E (Second Defendant) Ms F (Third Defendant) Martin Reilly (Fourth Defendant – Independent Legal Representative)
Representation:	Counsel: In person (Plaintiff) S Mahony (First Defendant) Second defendant – no appearance Third defendant – in person M Reilly (Fourth Defendant – Independent Legal Representative) Solicitors: Crown Solicitors (First Defendant) MGR Legal (Fourth Defendant – Independent Legal Representative)
File Number(s):	2020/00350387
Publication restriction:	Closed Court Pursuant to s 7 of the Court Suppression and Non‑Publication Orders Act 2010 (NSW), information tending to reveal the identity of or otherwise concerning any party in the proceedings or any person who is related to or otherwise associated with any party in the proceedings is suppressed.
Decision under appeal	Court or tribunal: Children’s Court Jurisdiction: Broadmeadow Date of Decision: 10 November 2020 Before: Children’s Magistrate Devine File Number(s): 2020/00166629