Joy Alleyne as independent legal representative for LC v Director General Department of Community Services

[2009] NSWDC 140

Reported Decision: 9 DCLR (NSW) 74

District Court

CITATION:	Joy Alleyne as independent legal representative for LC v Director General Department of Community Services [2009] NSWDC 140
HEARING DATE(S):	16 June 2009
EX TEMPORE JUDGMENT DATE:	16 June 2009
JURISDICTION:	Civil
JUDGMENT OF:	Goldring DCJ
DECISION:	1. Appeal allowed 2. Grant leave to seek a rescission or variation of the orders of the Children's Court 3. Direct matter be remitted to the Children's Court at Parramatta
CATCHWORDS:	CHILDREN AND YOUNG PERSONS - Rescission or variation of care order - significant change in circumstances
LEGISLATION CITED:	Children and Young Persons (Care & Protection) Act 1998
CASES CITED:	S v The Department of Community Services [2002] NSWCA 151
PARTIES:	Joy Alleyne as independant legal representative for LC (Appellant) Director General Department of Community Services (First Defendant/Respondent) The Minister for Comunity Services (Second Defendant/Respondent) JR (Third Defendant/Respondent)
FILE NUMBER(S):	2379 of 2009
COUNSEL:	J Alleyne, solicitor (Appellant) P Guterres, solicitor advocate (First and Second Defendant/Respondent) D J Chapman, solicitor (Third Defendant/Respondent)
SOLICITORS:	Alleyne & Co Solicitors, Woy Woy I V Knight, Crown Solicitor D J Chapman Solicitors, Gosford

JUDGMENT

1 HIS HONOUR: This is an appeal against a decision of the Children’s Court at Woy Woy on 11 September last year, where the learned magistrate refused leave to the applicant, LC, to seek a rescission or variation of a care order made by the Children's Court on 11 April 2007.

2 On 11 April 2007, Magistrate Ellis, sitting in the Children’s Court, made orders relating to three children: LC, DC and MC. The orders, among others, were that the parental responsibility for each of them was allocated to the Minister until each attained the age of eighteen. I will refer to Magistrate Ellis’ findings in due course.

3 This application, I emphasise, is made by LC, who is now fifteen years and some months old. It is supported by her mother, JR, and opposed by the Director General Department of Community Services. At the beginning of these proceedings, I indicated that I would not make any decision relating to D or M, because those children, although they were represented in the proceedings in the Children’s Court, are not represented here and I consider that s 87, which applies to me, would preclude me from making any order in respect of that. So I am concerned only with the applicant L.

4 S 90(1) of the Children and Young Persons (Care and Protection) Act provides that an application for the rescission or variation of a care order may be made with the leave of the Children’s Court. That is what this application is about. Subsection (2) provides that 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. Subsection (2A) provides that, before granting leave to vary or rescind the care order, the Children’s Court must take the following matters into consideration:

(a) the nature of the application, and
(b) the age of the child or young person, and
(c) the length of time for which the child or young person has been in the care of the present carer, and
(d) the plans for the child, and
(e) whether the applicant has an arguable case.

5 Mr Guterres, who appears for the Director General, pointed out that those provisions must be construed in the light of the purpose of the legislation. The overriding purpose of this legislation, of course, is set out s 9, which is a statement of principles applied in the administration of the Act and principally in para (a), which provides that:

“[I]n all actions and decisions made under this Act concerning a particular child or young person, the safety, welfare and wellbeing of the child or young person must be the paramount consideration. In particular, the safety, welfare and wellbeing of a child or young person which has been removed from his or her parents are paramount over the rights of the parents.”

6 The purpose of these provisions in s 90, I am told, is to ensure that once arrangements have been made for the care and responsibility of a child or young person, those are left in place without unnecessary changes, and I accept that that is the purpose.

7 What is required is that there be a significant change in any relevant circumstances. That does not mean that the circumstances, which led to the making of the original order, all have to be changed. It is enough that any one of them, if sufficiently significant, is changed.

8 In S v The Department of Community Services [2002] NSWCA 151, the court said this at para 27:

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

9 That passage itself raises some questions, because, as I have indicated, when the orders were originally made, the orders were not actually delivered until nearly six months after the hearing commenced, and certain things happened during that period.

10 I should summarise the findings made by Magistrate Ellis, and I am quoting from the transcript at page 31:

“(1) The summary evidence clearly shows chronic domestic violence perpetrated by Mr C upon the mother, but also extensively on the children, including regular beatings, psychological abuse including denigration of L after she had soiled herself, severe physical abuse of the children, including the probability that Mr C caused the black eye suffered by M. The evidence also points to strong psychological abuse perpetrated by Ms R on the children. This includes swearing at them, belittling them, raising inappropriate topics for discussion in their presence (her financial strains, Michelle’s waters breaking, part of the baby’s birth) amongst others.

(2) There is also chronic alcohol abuse by Mr C, but also sufficient evidence to allow the court to form the view that Ms R also regularly abused alcohol. The allowance by Ms R of L consuming alcohol is itself a notification of abuse. It appears from the evidence that there is a family culture of denial of the level of alcohol abuse, even in the face of independent evidence from hospital and police records.

(3) Ms R has a lack of understanding and insight into the affect [as said] of domestic violence upon the children; not only as to the cause of the encopresis in response to the fear suffered by the children, but also as to the affects upon their education.

(4) The inability of Ms R to understand the sexual propositioning by Mr C of his stepdaughter’s sexual abuse is alarming. By extension and with the view of Ms R that it is okay for L to share a bed with Mr C, the court is concerned as to the exposure of L in particular to future sexual abuse.

(5) Ms R has clearly positioned herself to support Mr C over and above her need and/or ability to protect the children from his violence.

(6) To a similar degree, Ms R has positioned herself to support JC, including purchasing illegal drugs as well as not recognising the affect upon the children of his consuming these in the home. This points to an inability of Ms R to protect the children from ongoing abuse by JC. While there are some position aspects of Ms R’s interaction with the children during contact, there are many instances where she has spoken in a derogatory way that is counter productive to the flourishing of an ongoing positive relationship.

(7) At times she has been abusive to the children by swearing at them; emotionally putting them down all in the context of knowing that her actions would be reported. This behaviour at a time when she would have been on better behaviour than without witnesses indicates a possibility of greater abuse when alone with the children.

(8) Ms R exhibited a total lack of ability of understanding as to what needed to be done by her if the children were returned to her care. It appeared as though Ms R is saying that all is needed is more of the same as to how she treated the children prior to their removal. She then went on to discuss problems relating to the absence of the children from school.”

She continued:

“(9) Dr Lennings expresses the opinion that Ms R fails to understand the difficulties her children faced. Further he has expressed the opinion that given the ‘extended family supports for her behaviour and hence little real incentive to arrive at an alternative view of her behaviour’, that Ms R has a total inability to change.”

11 Her Honour concluded that there was no realistic possibility of restoration of the children to the mother, and she therefore made the order, including those relating to parental responsibility. She also made orders for contact and, as I understand the evidence since those orders were made, Ms R has had contact with the children, usually together, for a period of four hours once a month. This involves some difficulty because Ms R lives on the Central Coast. The children are all placed with three separate carers, all of whom live north of Newcastle. So some travel is involved. Originally I am told the three children were placed with the same carers but that did not continue, and indeed L, with whom I am concerned in these proceedings, was placed with particular carers for some time; that proved to be unsatisfactory, and she has now been with her present carers for a little over two years.

12 As I have said, she is now over fifteen, and she brings this application. There is a statement of her position and that is that she wants to return to live with her mother. In the circumstances, that is extremely significant and, indeed, it is one of the matters that must be considered under s 90, subs (2)(A). If the mother had brought this application, perhaps the appellant’s grounds would not be so strong, but it is a fifteen-year-old child who makes this application. Although there is some evidence that she has had some learning difficulties, and some other problems, at that age I must assume that she is sufficiently cognisant to be able to express her own wishes clearly and succinctly.

13 I am also, for the purpose of subsection (2A), aware that she has been in her present care situation for some time. It is successful, to an extent, in that she is now attending school and socialising reasonably. However, we are talking here about a fifteen-year-old girl, not a child of more tender years who has not been able to develop her own feelings sufficiently.

14 There is no evidence, before me, relating to future plans for the child if leave is granted and the application succeeds.

15 I also must consider whether the appellant has an arguable case. This, being a leave application, does not involve consideration of the substantial issues in the case. If leave is granted, the matter will be remitted to the Children’s Court, and the Children’s Court will determine the application to vary or rescind the orders, in the light of full and proper evidence. That would include, I would imagine, an appropriate report, prepared by an independent clinician who has spoken to and considered the position both of the applicant L, and of her mother. It is a long process, but without that sort of information, and other information, it would be impossible for a court to decide that issue.

16 The issues before me are much more limited, and that is really whether there has been significant change in the mother’s position and whether the appellant has an arguable case. I think it is taken that, in all cases, there is a presumption that a child should live with his or her natural parents. In this case, that presumption was, to some extent, rebutted because of the circumstances found by Magistrate Ellis when she considered these matters. She took a long time for consideration, and prepared a lengthy and detailed statement of her reasons. I do not question those, although I must say that I might have differed with her on some points.

17 I am satisfied, however, that the making of the care orders was well and truly justified, because it appears on the evidence that the learned magistrate summarised that the best interests of the children, and their welfare and safety, were not being served by the arrangements that existed when the Department first took action, and which may have continued to some extent after that. I have summarised the findings made by the learned magistrate. Amongst those, it seems to me, that the principal influence on the learned magistrate was the existence of domestic abuse on the part of Mr C, and his behaviour when affected by alcohol.

18 There were other considerations which were important. The appellant and the natural mother have both indicated that, since the time when the learned magistrate considered the situation, there has been a significant change in the circumstances, and I find that that is the case, in two ways in particular. The first is that in 2005 Ms R stopped living with Mr C. There is evidence, before me, from one of the children, who is not concerned with this application, an adult woman, that she now cares for Mr C, who is an invalid; that Mr C does not know where Ms R lives, and it is certainly clear that he has not indicated any wish or concern to have contact with L, or indeed with her two younger brothers.

19 Secondly, there is the question of accommodation. The evidence discloses that L in particular has had, over the years, very considerable problems with faecal and urinary incontinence. And, indeed, one of the reasons, which apparently prompted physical abuse by her father, was the fact that she did soil herself from time to time. No doubt, that was an extremely frustrating situation for all members of the household.

20 It was exacerbated by the fact that, at that time, living with Ms R, were not only the three children and Mr C, but Mr C’s son or stepson, JC, and a married daughter, her partner and children, so that the premises were extremely crowded. There is reference in the learned magistrate’s reasons to people sleeping on the floor and sharing beds.

21 The evidence, before me, discloses that Ms R has now secured Housing Commission accommodation, where she lives by herself. Mr C no longer lives with her. JC no longer lives with her, and indeed, she refuses to have him in the house. That means that the situation in relation to a number of significant matters has changed. First of all, there is little possibility of domestic violence if those living in the house are Ms R and L.

22 Secondly, there is no evidence that Ms R herself was ever a user of drugs, and that is conceded. If that was not so, there is ample evidence to that effect. JC was the drug user, and the learned magistrate, in reaching her conclusions, found to that effect.

23 Mr C was also suffering from a very severe alcohol abuse problem. There was evidence, as I have indicated, on which Magistrate Ellis found that he did have alcohol problems, but also evidence which enabled her to conclude, on the balance of probabilities, that Ms R also had some alcohol-related problems. In the evidence before me, Ms R has indicated that she does drink socially on occasions, but does not consider that she has a alcohol problem. That, of course, is not conclusive, but when I take into account the numerous references which have been provided, both before Magistrate Williams last year, and additionally before me today, I get a picture of a woman who is socially responsible and is well behaved.

24 In particular, the references before me today indicate that she is a significant carer for a young woman who is immobilised, who is about fifteen, and who is confined to a wheelchair. The references come from the young woman herself, from her parents, or her father, and from various people in the local community. They attest that Ms R takes care of this young woman, and does so in a responsible way. That evidence was not before the learned magistrate in 2006 and 2007, and it represents, in my view, a significant change in the situation of Ms R.

25 There is also evidence that Ms R has undertaken some courses.

26 Mr Guterres has submitted that what she has shown is not enough. It is the case that it is for the appellant in this case to establish a case on the balance of probabilities. Ms R is not the appellant, nor is she the applicant. She supports the application, but she herself does not bear any burden of proof. I am satisfied, on the balance of probabilities, that she has undertaken courses in parenting, and in relation to domestic violence. It might not be as much as she could have done, in the circumstances, but all the evidence suggests that she is a woman who has had problems with reading and learning all her life, and it may be that she would benefit less from formal courses than other people would. What I am satisfied of, is that she has taken steps to try and address at least some of the issues which led to her children being taken into the Minister’s care.

27 A great deal of weight seems to have been placed by Magistrate Ellis on the report of Dr Lennings, who was, I think, the court clinician appointed in 2005. His report is dated 20 March 2006. The copy that I have, and indeed I think the copy that is available, is in very small type and is very difficult to read. I am familiar with Dr Lennings as an expert who frequently gives evidence in this court, and I have the highest respect for him. He has expressed conclusions, which no doubt were justified at the time, but I am, to some extent, concerned about what he says about Ms R’s insight into her children’s needs and her own shortcomings. That may have been the case three years and three months ago, when Dr Lennings prepared his report.

28 Ms R, in support of the proceedings in the Children's Court, did, through her solicitors, commission a limited psychological report from Ms Helen Carney, and the appellant relies on that. I have no reason to doubt Ms Carney’s qualifications. Her report is of limited value, because she did not have available to her a lot of the material that was before the learned magistrate, particularly Dr Lennings’ report, but she was able to form an opinion on the limited material available to her. She interviewed Ms R. She did not interview any of the children, including L. She was asked a series of eleven questions by Ms R’s solicitor, and she proceeded to answer those, which she did, in my view, comprehensively. She concluded that Ms R did have a degree of depression, which is not atypical in circumstances where children have been removed, but Ms Carney did not form a view that Ms R required any specific treatment. She alluded to some of the efforts Ms R had made on her own behalf to address her issues. She then made some findings which, in my view, are extremely significant. She said:

“[4] The most significant change Ms R has made to her life is that she has been separated from her partner, Mr C, who is allegedly the perpetrator of the domestic violence and other problems with the family affecting the welfare of the children. She is living alone and maintains that she has no intention of pursuing any other relationships in the future.”

29 She then goes on to refer to the courses that Ms R has undertaken. She says that she cannot ascertain the children’s attachment to the mother, and, as I have said, L has expressed very strongly the view that she wishes to return to her mother. Ms Carney was asked: “Does the mother present as having the capacity to provide for her children?” And she said this:

“Ms R has made significant changes to her life and has undertaken courses and counselling to improve her insight into her own and her children’s behaviour. She is willing to continue with any course of action that will enhance her capacity to provide a stable and loving environment for her children. She should have the capacity to care for her children, as the factors that resulted in the removal of her children were mainly related to problems associated with her partner and the issues that were associated with her ability to parent have been addressed by her.”

30 That report does appear to assume that, at the time Magistrate Ellis made her findings, Ms R and Mr C were still cohabiting, which we know was not the case, but, nevertheless, what Ms Carney says, supports and amplifies the proposition that, since the orders were made, Ms R has made significant attempts to change the situations she found herself in.

31 I emphasise that what I say today does not necessarily influence what will happen in the case of D and M, who are younger, who are probably less able than L to express their own wishes, and who may be in different situations, but in this case, I am satisfied that the matters set out in s 90(2) and (2A) influence me to grant leave. As I say, that does not determine the final issue, and I would not want to hold out any false hopes that the application to rescind or vary the care orders will necessarily succeed. However, I am of the view that, in the circumstances, leave should be granted so that those issues can be considered fully and properly by the Children’s Court.

32 I allow the appeal and grant leave to the appellant to seek a rescission or variation of the orders of the Children's Court.

33 I also direct that the matter be remitted to the Children’s Court at Parramatta.

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