LM v Secretary, Department of Communities and Justice

Case •

[2021] NSWDC 34

•

24 February 2021

District Court


New South Wales

Medium Neutral Citation: LM v Secretary, Department of Communities and Justice [2021] NSWDC 34
Hearing dates: 1 June 2020; 3 June 2020 (Newcastle); 30 November 2020-1 December 2020 (Sydney); 8 February 2021 (Sydney) (submissions)
Date of orders: 24 February 2021
Decision date: 24 February 2021
Jurisdiction:Civil
Before: Dicker SC DCJ (at Newcastle and Sydney)
Decision:

(1) The appeal is allowed in relation to A.

(2) The appeal is dismissed in relation to B.

(3) The orders of the Children’s Court dated 26 September 2019 in relation to A are set aside.

(4) Leave is granted to the plaintiff pursuant to s 86 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) to make a substantive application for contact orders in relation to A.

(5) The proceedings are remitted to the Children’s Court of New South Wales at Broadmeadow for hearing of the substantive application under s 86 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) by the plaintiff for contact orders in relation to A.

Catchwords:

CHILD WELFARE – care and protection of children – contact orders – appeal from Children’s Court to District Court – application for leave to bring application for contact orders by mother of children –whether appropriate to grant leave sought – relevance of views of children – utility of granting leave

Legislation Cited:

Courts Suppression and Non-Publication Orders Act 2010 (NSW)

Children and Young Persons (Care and Protection) Act 1998 (NSW)

United Nations Convention on the Rights of the Child (1989)

Cases Cited:

GR v The Department of Communities & Justice [2020] NSWSC 1622

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 M (No 6) [2016] NSWSC 170

Re Tracey (2011) NSWLR 261; [2011] NSWCA 43

S v Department of Community Services [2002] NSWCA 151

Category:Principal judgment
Parties: LM (Plaintiff)
Secretary, Department of Communities & Justice (First Defendant)
A by his guardian ad litem (Second Defendant)
B (Third Defendant)
Representation:

Counsel:
B Dean (Plaintiff)
G F Mahony (First Defendant)
N Callander and later K Phillips (solicitor) (Second Defendant)
W Strang (solicitor) then L Ticehurst (Third Defendant)
A L Roberts (solicitor) – withdrew (former Fifth Defendant)

Solicitors:
NLS Law (Plaintiff)
Crown Solicitor’s Office (First Defendant)
Legal Aid NSW (Second Defendant)
Strang Law (Third Defendant)
File Number(s): 2019/00350513
Publication restriction: Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010, order that information tending to reveal the identity of or otherwise concerning any party to the proceedings or any person who is related to or otherwise associated with any party in the proceedings before the court, is suppressed. The order is made as it is in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice
 Decision under appeal 
Court or tribunal:
New South Wales Children’s Court
Jurisdiction:
Children’s Court
Date of Decision:
26 September 2019
Before:
Skinner CCM
File Number(s):
2018/002928533

Judgment

  1. In these proceedings, the appellant/plaintiff Ms LM, who is the mother of the children to whom these proceedings relate, pursuant to an Amended Summons filed and dated 18 March 2020, seeks various orders including (in summary):

  1. That leave to appeal be granted from the whole of the decision of the Children’s Court dated 26 September 2019 refusing leave to the plaintiff under s 86 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Care Act") to hear the plaintiff’s substantive application for contact orders in relation to her two youngest children, B born xx 2007 and A born xx 2009;

  2. That the appeal be allowed;

  3. That the orders made by the Children’s Court on 26 September 2019 in relation to B and A be set aside;

  4. That the proceedings be remitted to the Children’s Court for hearing of the substantive application of the plaintiff under s 86 of the Care Act.

  1. Ms LM is the mother of the following children:

  1. An adult male, E, not relevant to this application;

  2. C born xx 2004 and D xx born on xx 2004;

  3. B born xx 2007; and

  4. A born xx 2009.

  1. Initially, the plaintiff sought to appeal in relation to the refusal by the Children’s Court to grant leave in relation to C, D, B and A: Summons filed 23 October 2019. However, in due course the application and the appeal were not pursued in relation to C and D and the Amended Summons was filed.

The parties

  1. The first defendant in the proceedings is the Secretary of the Department of Communities and Justice. The second defendant in the proceedings is A by his guardian ad litem Mr Stephen Stuart (previously his Independent Legal Representative). The third defendant in the proceedings is B by her Direct Legal Representative.

  2. All the parties were represented at the hearing of the appeal. There was no oral evidence called at the hearing.

Procedural

  1. At the commencement of the hearing, the court ordered that there be a closed court under s 104B of 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.

  2. The matter first came on for final hearing on 1 June 2020.

  3. At the commencement of the hearing, a joint tender bundle was tendered and became Exhibit 1 in the proceedings. The court was also provided with helpful detailed chronologies by counsel appearing for the plaintiff Ms LM and the Secretary. In addition, written submissions were provided on behalf of each of the parties to the appeal. On the second day of the hearing, soon after oral submissions commenced, and following comments by the Court following a perusal of the material in Exhibit 1, an application was made by the plaintiff to adjourn the proceedings for a period of about six months to allow for the provision of a joint report by an appropriate psychologist, Mr X, and to allow for a period of therapeutic intervention and counselling in relation to B and A. This application was either supported or not opposed by the other parties. After hearing submissions, the Court granted the adjournment as it was of the opinion that it was in the best interests of B and A to do so and to allow further therapeutic intervention without the immediacy of litigation being a significant present factor: s 94(4) of the Care Act. Although an adjournment of such a length is unusual in care proceedings, on the unusual facts of this case, the court considered that it was appropriate and in the overall best interests of the children in the circumstances.

  4. When the matter next came on for hearing, the court had the benefit of some additional material including the report of Mr X. This material was made Exhibit 2 in the proceedings. The additional material provided an update in relation to the positions of B and A and useful opinions expressed by Mr X in relation to the proposed contact position between B and A concerning the plaintiff, their mother. Additional submissions were also relied upon.

  5. On 30 November 2020, the Independent Legal representative for A and counsel for the Secretary referred the court to the recent decision of Sackar J in the Supreme Court of New South Wales relating to a child party to proceedings: GR v The Department of Communities and Justice [2020] NSWSC 1622. His Honour held, after a detailed consideration of the relevant provisions of the Care Act, especially s 98(2A), that the words “is to appoint a guardian ad litem” in s 98(2A) “clearly direct that the Court must appoint a guardian ad litem for a person when it is of the opinion that the person is “a party to the proceedings” and is “incapable of giving proper instructions to a legal representative””: at [54]-[75] especially at [57]. A is a party to the current proceedings.

  6. The court then received submissions from the parties as to: 1) whether this court should follow the conclusion and reasoning of Sackar J in GR; and 2) whether on the evidence, A is a person who is incapable of giving proper instructions to a legal representative within s 98(2A) of the Care Act.

  7. After consideration, I came to the view that I should follow the decision of Sackar J as it appeared, with respect, to be correct and was a considered and carefully reasoned decision. I also considered that A was a party to the proceedings who, on the evidence, was incapable of giving proper instructions to a legal representative. Therefore, a guardian ad litem was required to be appointed for A for the purposes of the proceedings.

  8. Following an unavoidable adjournment in the light of this ruling, Mr Stephen Stuart was appointed as the guardian ad litem for A. Written submissions were provided to the court on behalf of Mr Stuart following various meetings with A.

The relevant legislative provisions

  1. The legislative provisions relevant to the appeal should be set out or referred to.

  2. The objects of the Care Act are set out in s 8 of the Care Act which is 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.”

  1. The principles to be applied in the administration of the Care Act are set out in s 9 of the Care Act which is 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.”

  1. As indicated above, B is 13 years of age and A is 11 years of age. These children are accordingly not infants. They are, however, young persons. The materials before the court indicate that they have each expressed views in relation to contact with their mother, Ms LM. I note the principle of participation set out in s 10 of the Care Act. I also note the principles for the administration of the Care Act which I have set out above in s 9 of the Care Act include a principle that 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: s 9(2)(a) of the Care Act. This matter was emphasised in written submissions on behalf of the Secretary, B and A.

  2. The children's father, Mr F, unfortunately died on xx 2017. Mr F was an Aboriginal man. The plaintiff, Ms LM, is an Aboriginal woman. B and A identify as Aboriginal persons. In considering this matter, I take into account principles relating to Aboriginal and Torres Strait Islanders set out in Part 2 of the Care Act, particularly s 11. Ms LM has been given a full opportunity to make submissions and to put evidence before the court in relation to the application. I also note that s 9(2)(b) provides that the culture of the child needs to be taken into account in all actions and decisions made under the Care Act.

  3. Section 91 of the Care Act 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.”

  1. Accordingly, the following matters appear clear from s 91:

  1. An appeal pursuant to s 91 of the Care Act is brought by a party to proceedings who is dissatisfied with an order of the Children’s Court. In her Amended Summons dated 18 March 2020, the plaintiff states that she is dissatisfied with the orders of the Children’s Court made on 26 September 2019 dismissing her s 86 leave application for contact orders;

  2. Such a dissatisfied party may in accordance with the rules of the District Court, appeal to the District Court against the order made in the Children’s Court;

  3. An appeal is to be by way of 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: s 91(2);

  4. The District Court may decide to admit as evidence the transcript of proceedings before the Children’s Court and any exhibit tendered during those proceedings: s 91(3);

  5. In addition to any functions and discretions that the District Court has, the District Court has, for the purposes of hearing or disposing of an appeal, all the functions and discretions that the Children’s Court has under Chapter 5 and Chapter 6 of the Care Act: s 91(4);

  6. The District Court may confirm, vary or set aside the decision of the Children’s Court: s 91(5) of the Care Act;

  7. 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: s 91(6);

  8. 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 the hearing of a care application under Chapter 6: s 91(8) of the Care Act. In hearing the appeal, 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.

  1. As stated, the plaintiff Ms LM applied to the Children’s Court for leave to make an application for contact orders in relation to her four younger children. Section 86 of the Care Act provides as follows:

“86   Contact orders

(1)  An order may be made by the Children’s Court doing any one or more of the following—

(a)  stipulating minimum requirements concerning the frequency and duration of contact between a child or young person and his or her parents, relatives or other persons of significance to the child or young person,

(b)  requiring contact with a specified person to be supervised,

(c)  denying contact with a specified person if contact with that person is not in the best interests of the child or young person.

(1A)  A contact order may be made by the Children’s Court—

(a)  on application made by any party to proceedings before the Children’s Court with respect to a child or young person, or

(b)  with leave of the Children’s Court—on application made by any of the following persons who were parties to care proceedings with respect to a child or young person—

…

(iv)  a person from whom parental responsibility for the child or young person has been removed,

…

(c)  …

(1B)  The Children’s Court may grant leave under subsection (1A)(b) or (c) if it appears to the Court that there has been a significant change in any relevant circumstances since a final order was made in the proceedings.

(1C)  ...

(1D)  Before granting leave under subsection (1A)(b) or (c), the Children’s Court—

(a)  must take into consideration whether the applicant for the contact order and persons to whom the contact order applies have attempted, or been ordered by the Children’s Court to try, to reach an agreement about contact arrangements by participating in alternative dispute resolution, and

(b)  may order the applicant and those persons to attend a dispute resolution conference conducted by a Children’s Registrar under section 65 or alternative dispute resolution process under section 65A.

(1E)  ...

(1F)  A contact order made under subsection (1A)(b) on application of a person who was a party to proceedings in which an earlier contact order was made that has expired may be made in the same or different terms to the expired order.

(2)  The Children’s Court may make an order that contact be supervised by the Secretary or a person employed in that part of the Department comprising those members of staff who are principally involved in the administration of this Act only with the Secretary’s or person’s consent and must not be made in relation to contact with a child or young person who is the subject of a guardianship order.

(3)  An order of the kind referred to in subsection (1)(a) does not prevent more frequent contact with a child or young person with the consent of a person having parental responsibility for the child or young person.

(4)  An order of the kind referred to in subsection (1)(b) may be made only with the consent of the person specified in the order and the person who is required to supervise the contact.

(5) A contact order made under this section has effect for the period specified in the order, unless the order is varied or rescinded under section 86A or 90.

(6)  Despite subsection (5), if the Children’s Court decides (whether by acceptance of the Secretary’s assessment under section 83 or otherwise) that there is no realistic possibility of restoration of a child or young person to his or her parent, the maximum period that may be specified in a contact order made under subsection (1A) concerning the child or young person is 12 months.

(7)  Subsection (6) does not apply to a contact order made on the application of a former party to proceedings in which an earlier contact order was made that has expired.

(8)  …”

The principles applicable to the application before the court

  1. The parties in their various written submissions have made submissions in relation to the legal principles which are applicable to the court’s determination of the appeal before it.

  2. The plaintiff, Ms LM, was a party to care proceedings with respect to B and A in the past. Accordingly, it appears from s 86(1A)(b) of the Care Act, that any application to be made by Ms LM, as a person from whom parental responsibility for the children has been removed, may only be made with the leave of the Children’s Court. In the present case, the Children’s Court on 26 September 2019 refused leave to the plaintiff. There is no issue between the parties that an appeal may be made by the plaintiff in relation to the refusal to give leave to make an application for a contact order.

  3. Under s 86(1B) of the Care Act, the court may grant leave to make an application by a mother for a contact order in relation to children if it appears to the court that there has been “a significant change in any relevant circumstances since a final order was made in the proceedings”. Before granting leave, the court:

  1. Must take into consideration whether the applicant for the contact order and persons to whom the contact order applies have attempted, or been ordered by the Children’s Court to try, to reach an agreement about contact arrangements by participating in alternative dispute resolution; and

  2. May order the applicant and those persons to attend a dispute resolution conference conducted by a Children's Registrar or alternative dispute resolution process.

  1. The phrase “a significant change in any relevant circumstances” is also used in s 90(2) of the Care Act. However, s 90 of the Care Act provides specific statutory guidance in s 90(2B) and (2C) in relation to considerations to be taken into account by a court before granting leave under that section. Far more limited matters are referred to in s 86 of the Care Act.

  2. Nevertheless, the similarity of the wording in the sections appears to indicate that the ground for leave, as with s 90, 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”: JL v Secretary, Department of Family and Community Services [2015] NSWCA 88 per Basten JA (with whom Meagher JA agreed) at [200]. Similarly, as with s 90 of the Care Act, the required satisfaction under s 86 appears to be a matter of fact.

  3. In S v Department of Community Services [2002] NSWCA 151 at [53], Davies AJA (with whom Heydon and Hodgson JJA agreed), stated as follows at paragraphs 23 and 27 of his Honour’s judgment:

“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.”

  1. These comments are potentially relevant to the proper construction to be given to the phrase “since a final order was made in the proceedings” in s 86(1B) of the Care Act. This is considered further below. In relation to the proper construction to be given to the phrase “a significant change in any relevant circumstances” in s 86(1B) of the Care Act, the authorities on s 90(2) of the Care Act would appear to be relevant and of guidance.

  2. In LZ v Secretary, Department of Family and Community Services [2019] NSWDC 156 I stated as follows in paragraphs 23-25:

“23.  It is clear from the decision in Re Jeremy [2017] NSWCA 220 that the court must consider whether the alleged changes are “significant” and whether the circumstances raised are “relevant”. The court must then address the question whether if they are both relevant and significant, the court is disposed to grant leave to the applicant. The court must also consider the mandatory considerations set out in s 90(2A) of the Care Act. See Basten JA (with whom McColl JA agreed at [27] and [39] and per Adamson J at [47]. Adamson J stated at [47] as follows:

“[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.”

  1. .  Re Jeremy has not been relevantly considered by any later appellate authority.

25. What are “relevant circumstances” within s 90(2) of the Care Act? In Re Felicity (No 3) [2014] NSWCA 226 Basten JA (with whom Ward and Emmett JJA agreed) rejected the argument that the relevant circumstances were restricted to the circumstances which formed the basis for 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” which his Honour believed conformed to the primary object of the Care Act in s 8(a): see at [25]-[26]. Re Felicity was approved by Beazley P in Potkonyak v Legal Services Commissioner (No 2) [2018] NSWCA 173 at [118].”

  1. Section 86(1B) of the Care Act provides that the Children’s Court “may” grant leave if the relevant requirements under s 86 (1A)(b) appear to have been established. In my view, this indicates that the decision to grant leave is a discretionary one for the court. It follows that the court may decline to grant the leave sought even if the applicant for a contact order has established that there has been a significant change in any relevant circumstances since a final order was made in the proceedings. Whilst in my view that is clear on a proper review of s 86 of the Care Act in its context, the approach adopted is consistent with the approach taken to the similarly worded s 90 of the Care Act: Re M (No 6) [2016] NSWSC 170.

  2. Clearly the matters referred to in s 86(1B) and (1D) of the Care Act are the matters which must be taken into account by the Court. However, in my view the exercise of the court's powers must take into account the other sections which I have referred to above including ss 8 and 9 and Part 2 of the Care Act.

  3. Various views have been expressed by the parties in their submissions as to what is the correct order in the present case which would constitute “a final order” within s 86(1B) of the Care Act. No one submits in the present case that there has not been a significant change in any relevant circumstances if the final order was that made in 2011. Counsel for the Secretary disputes in her second submissions dated 30 November 2020 that there has been a significant change in relevant circumstances if the final order was made in 2016: see paragraphs 35-37 of the 30 November 2020 written submissions. A similar submission is made by the guardian ad litem. I will consider this further below. The main difference between the parties in their submissions appears to relate to the exercise of the discretion. The plaintiff strongly supports the allowing of the appeal and the grant of leave. The first defendant, the guardian ad litem for A and the direct Legal Representative for B oppose the grant of leave as a matter of discretion, largely because of the views of the children, the effect of continued litigation on the health of B, the potential disruption to A of further litigation and the lack of utility of leave being granted. It is submitted that the Secretary is already consulting widely from suitable and culturally appropriate persons to assist in having contact between the mother and the children facilitated and orders are not needed to commence and continue the process of re-establishing contact with the mother.

  4. Some of the parties in their submissions also refer to the United Nations Convention on the Rights of the Child (1989) (“CROC”). See in particular paragraphs 66 and 69 of the submissions on behalf of the plaintiff dated 1 June 2020. There was no submission to the contrary by the other parties and I take the provisions referred to into account consistently with the decision of the Court of Appeal in Re Tracey (2011) NSWLR 261; [2011] NSWCA 43 at [25]-[26]. It was not suggested by any of the parties that the provisions of CROC would lead to the court taking a different decision to the one indicated by the general provisions under the Care Act.

Issues to be determined

  1. I agree with the submission by counsel for the Secretary that s 86 raises four issues for determination:

  1. Should the parties be referred to a dispute resolution conference;

  2. What order is the “final order” referred to in the section;

  3. Has there been a “significant change in any relevant circumstances” since that order; and

  4. Should the discretion to grant leave be exercised in favour of the plaintiff (paragraph 25 of the written submissions dated 29 May 2018; paragraph 23 of the written submissions dated 30 November 2020. See also paragraph 17 of the submissions of the guardian ad litem dated 8 February 2021).

  1. The court focuses on the principle in making its decision under s 86 of the Care Act that the safety, welfare and well-being of the children in question are paramount. The evidence establishes that the couple caring for the two children includes a male carer who is Aboriginal. As indicated above, indigenous cultural issues ought also to be taken into account by the court in exercising its discretion: see paragraphs 67 and 68 of the written submissions on behalf of the plaintiff dated 1 June 2020.

Background facts

  1. Exhibit 1 before the court contained a voluminous amount of material relating to the plaintiff and her younger children. Exhibits 2 and 3 contained further extensive material. It is unnecessary for the purposes of this decision, to refer to that material in any great detail. The court has been assisted in its review of the material by highly detailed and cross-referenced chronologies provided to the court by counsel for the plaintiff and the Secretary.

  2. For the purposes of determining the application, the court makes the following findings of fact:

  1. As stated above, the plaintiff, Ms LM is the mother of five children: an adult male, E, C and D, B (13 years of age) and A (11 years of age). C, D, B and A are the biological children of the plaintiff and Mr F who is now deceased;

  2. The plaintiff is an indigenous Aboriginal woman. The father Mr F was also of Aboriginal heritage. Each of the plaintiff's children, including B and A, identify as Aboriginal. The plaintiff has Dhungutti/Kamilaroi heritage;

  3. B is, on the evidence, in good health. A has a diagnosis of Attention Deficit Hyperactive Disorder, Anxiety and Oppositional Defiant Disorder. This was made in 2018. The diagnosis is still current and A takes medication for his conditions;

  4. The relationship of the plaintiff with Mr F continued until about 2013;

  5. In January 2009, the children C, D and B were removed from the plaintiff’s care. At that time, C and D were aged four and B was aged one year seven months. The removal from the plaintiff's care was due to concerns of parental drug and alcohol abuse, domestic violence and issues concerning the plaintiff’s mental health. The three children were initially placed with their maternal aunt;

  6. In May 2009, the children were placed with G and H. Mr G identifies as Aboriginal. Mr G and Ms H are the biological parents of J, K and L and a kinship carer for a further infant child;

  7. On 25 August 2009, a restoration plan was filed and orders were made that the children be placed under the parental responsibility of the relevant Minister;

  8. On xx 2009, A was born and remained in his mother's care. On 25 August 2010, the children C, D and B were restored to the plaintiff’s care;

  9. On 9 December 2010, the plaintiff requested that the children C, D and B be placed in respite care. This was on the basis that the plaintiff was struggling with managing the children's care;

  10. The children returned to the care of Mr G and Ms H;

  11. Shortly thereafter, the child A joined his sisters in the placement with the authorised carers, Mr G and Ms H;

  12. The Secretary of the Department of Family & Community Services (as it was then known) commenced proceedings seeking final orders pursuant to s 90 of the Care Act. On 14 July 2011, final orders were made in the Children’s Court allocating parental responsibility for the children to the relevant Minister until each child attains 18 years of age. The care plan contemplated contact with the children and the plaintiff;

  13. In February 2013, case management responsibility for the four children was transferred from the Department of Family & Community Services to the organisation Life Without Barriers (“LWB"). LWB continues to have case management responsibility for the four children. Recently this responsibility was transferred from the xxx office of LWB to the xxx office. The various caseworkers changed at that time also;

  14. The plaintiff gave evidence that she ceased the use of illicit substances in early 2014. I accept that evidence;

  15. In June 2015, the plaintiff applied to the Children’s Court pursuant to s 86 of the Care Act for orders in relation to contact with the children. In February 2016, the Children’s Court made an order that the child A was to have contact with the plaintiff for two hours on six occasions in the 12 months following the order. Although the application was in relation to all of the children, the plaintiff did not press her application for orders with respect to the other three girl children;

  16. The children remain in the placement with Mr G and Ms H including D and C. D and C have been placed with J at different times, who is an adult and lives independently and is identified by the children as their sister. She is an approved authorised carer of LWB. Respite care is provided by K who is also an approved carer by LWB and is also identified by the children as their sister;

  17. The plaintiff has had limited and sporadic contact with the children in the period between 2012 and 2018. In the earlier years, the lack of contact was primarily due to the plaintiff. In the later years, some or all of the children on the evidence have indicated opposition to contact with the plaintiff at various times. In relation to D and C, this appears to have been the reason for the plaintiff filing the Amended Summons limiting her current application to B and A;

  18. In 2017, the plaintiff’s contact with A ceased on the basis that it was indicated that A did not wish to attend contact with the plaintiff;

  19. On 26 September 2018, the plaintiff filed an application in the Children’s Court under s 90 of the Act seeking leave to apply for an order that parental responsibility for the children be allocated to her. This application was withdrawn by the plaintiff in June 2019;

  20. As at late 2018, the plaintiff had not had contact with C and D since 2014 or with B and A since 2016. On 8 December 2018, the plaintiff had positive contact with the children B and A. There has not been any formal contact with B and A since 8 December 2018. After that date, B and A refused further contact with the mother;

  21. On 5 June 2019, the plaintiff applied to the Children’s Court under s 86 of the Care Act for leave to make an application for orders for contact with the children. As stated above, on 26 September 2019, the Children’s Court refused the plaintiff's application for leave and the plaintiff filed the current appeal before the court;

  22. There is substantial evidence before the court in relation to contact between representatives from LWB and the various children and their carers. [Confidential];

  23. However, there appears to have been intense work conducted in relation to the children of a therapeutic and cultural nature in the last year or so. [Confidential];

  24. Before the court was a report from Mr X, psychologist, and further contact reports relating to the children for the period from June to November 2020 (see the affidavit of Rachel Andrikidis affirmed 12 October 2020 paragraphs 18-19 and 45-56 and the affidavit of Caitlin Smith affirmed 24 November 2020 paragraphs 15-17). This material was created following the adjournment of the proceedings in June 2020 to allow a consideration of the children's position and to continue (where possible) with the therapeutic and cultural work referred to above.

  1. Mr X in his report considered all of the children of the mother who are currently in care but in particular the position of B and A (the report is annexed to the affidavit of Ms Andrikidis at Exhibit RA-2 pages 15-39). The report, which is dated 7 September 2020, was prepared following the briefing of Mr X to prepare a report by letter dated 11 August 2020 from the solicitor for the Secretary.

  2. Mr X notes that he has reviewed the court documents and other relevant material. This includes three affidavits of the mother not previously before the court: see Exhibit 3. He had no contact with any of the parties. In particular, he has not interviewed any of the relevant persons involved and he acknowledges this in his report as a limitation to be considered in assessing the views and opinions expressed by him (Exhibit RA-2 pages 16-17).

[Confidential].

  1. [Confidential]

  2. [Confidential]

Some criticism was made of the report of Mr X in submissions, particularly by the Secretary relating to his views as to LWB and the carers. I am unable to resolve these differences on the evidence. I accept that all parties have attempted to work in the perceived interests of the children, although different perspectives are held by the carers, the mother and LWB on some issues.

  1. The more recent contact reports included in the evidence for the period June-November 2020 do not indicate any real change in the children’s position or attitudes to the mother. B continues to assert strong opinions against the mother’s application and contact with her. A is younger and has not really expressed strong or reasoned opinions on the matter. However, he has expressed views against contact with his mother (Exhibit 2 pages 113 and 175). His carer has said that he stated that did not “need her” (Exhibit 2 page 76). See also paragraph 19 of Ms Caitlin Smith’s affidavit. The children all appear to be healthy and happy in their care placement;

  2. The guardian ad litem had various meetings with A in January 2021. A’s views as to contact with the mother have apparently not changed.

Submissions

  1. As indicated above, the parties have provided helpful and detailed written submissions to assist the Court on behalf of their clients.

  2. The plaintiff’s written submissions dated 1 June 2020 submit that there has been a significant change in relevant circumstances since the final order made on 14 July 2011, it is inappropriate to consider alternative dispute resolution or a dispute resolution conference as these are unlikely to be successful in the circumstances and that leave should be granted despite the children's indication that they do not wish to have contact with the plaintiff. The evidence suggests, it is submitted, that this may not be an entrenched position and that a contact order would have utility and would support indigenous cultural and heritage issues. It is said that the discretion should be exercised in favour of the appeal.

  3. These submissions were supplemented by the written submissions dated 30 November 2020. Counsel for the mother submitted that despite Mr X’s report and his recommendations, there was no evidence to support a finding that a contact order, if made, will cause psychological harm to the children as the children will not be forced to have contact, and a contact order would have utility to the extent it would encourage LBW and the Department consultants in their work, including the therapeutic work. It was submitted that the views of the children were relevant but should be viewed with caution [confidential]: submissions paragraphs 14-26.

  4. Similar helpful written submissions were prepared by counsel for the first defendant. It was originally submitted in the May 2020 submissions that the court should be satisfied that the relevant test for a significant change of circumstances is satisfied particularly since the refusal of leave in the Children’s Court. It was submitted that while the court is required to take the views of B and A into account, in the circumstances the children's views ought not to take primacy over the potential value to the children's overall health, safety and well-being if contact with the plaintiff can be progressed through the intervention of expert and appropriate therapeutic service providers. It was submitted that discretionary matters indicate that the court should allow the appeal and grant leave.

  5. In counsel for the Secretary’s 30 November 2020 written submissions the opposite view was taken in the light of Mr X’s report and more recent material. It was submitted that there was no utility in granting leave having regard to the views of the children as to engaging in contact (paragraphs 40-44) and the health, safety and well-being of the two children would not be met by allowing the appeal, particularly as to B (paragraphs 45-47).

  6. The guardian ad litem for A made submissions similar to those made on behalf of the Secretary in the later submissions.

  7. The Direct Legal Representative on behalf of B also made submissions opposing the appeal being allowed. Counsel on behalf of B in her written submissions dated 1 June 2020 submitted that having regard to the desirability of ending litigation including in relation to contact and B's opposition to contact with the plaintiff and the futility of a contact order, the court should exercise its discretion and dismiss the plaintiff's appeal seeking leave in respect to B. An updated position statement filed 12 November 2020 confirmed that B does not want further contact with the mother, [Confidential] and is content in her current care placement. [Confidential].

  8. The written submissions of the guardian ad litem for A dated 8 February 2021 refer to A’s views, the lack of utility of leave and the lack of success of previous orders for contact.

Consideration

Alternative dispute resolution

  1. Under s 86(1D) of the Care Act, before granting any leave, the court must take into consideration whether the applicant for the contact order (here the plaintiff) and persons to whom the contact order applies have attempted to reach an agreement about contact arrangements by participating in alternative dispute resolution. The affidavits of Ms Aumuller (Exhibit 1 Tab 7) and Mr Lawrence (Exhibit 1 Tab 8) establish to my satisfaction that the parties have, since the expiration of what on any view could be the last contact order, sought to reach agreement about contact arrangements by participating in alternative dispute resolution. Ms Aumuller’s affidavit annexes as Annexure A an agreement in relation to contact between B, A and the plaintiff. Despite that agreement, the objective of the agreement, being contact between the children and the plaintiff, has not been achieved apparently due to the refusal of the two children to participate in contact with the plaintiff as agreed. Attempts at counselling with the children through psychologists to encourage contact with the plaintiff have also not been successful: affidavit of Ms Andrikidis affirmed 29 May 2020 at paragraphs 24-27; written submissions for the Secretary dated 30 November 2020 paragraph 40a.

  2. I am accordingly satisfied that s 86(1D) of the Care Act has been complied with. At present, I am satisfied that a further dispute resolution conference between the relevant parties will not assist. The evidence in Ms Andrikidis’ 29 May 2020 affidavit and the report of Mr X satisfy me that a different approach is needed to attempt to resolve the issue of the views of B and A as to contact with the mother.

What is the relevant “final order”?

  1. Section 86(1B) of the Care Act requires the applicant to establish that there has been a significant change in any relevant circumstances since “a final order was made in the proceedings”. What is the final order for the purposes of the section in the present case?

  2. There are a number of views set out in the submissions of the parties as to what is the relevant “final order”. See for example paragraph 28 of the written submissions of counsel for the first defendant dated 29 May 2020, paragraphs 31-37 of the written submissions of counsel for the first defendant dated 30 November 2020, paragraphs 21-23 of the submissions on behalf of the guardian ad litem dated 8 February 2021 and paragraphs 32-39 of the written submissions of counsel for the plaintiff dated 1 June 2020. These submissions were expanded in some detail in the oral submissions. Various other sections of the Care Act and contextual considerations were relied upon in support of the differing arguments.

  3. It is noted that the 2016 contact orders in the end related to A not B. The mother did not press for contact orders in relation to the other children. In relation to B therefore, the relevant final order is the 2011 order. I agree with the oral submissions of counsel for B on this point.

  4. I do not consider the first instance decision in 2019 in the present case refusing leave is a final order within s 86(1B). This appeal is part of the appeal process from that decision and is a new hearing: s 91(2). It does not seem to be the case from sections 86 and 91 in the context of the Care Act as a whole, that this was intended to be a final order. That would make it very difficult for a party to establish “a significant change in any relevant circumstances” in the limited period in question and this strongly indicates that the relevant final order is not the one under appeal.

  5. I also do not consider that the court has a discretion in relation to what is “a final order” for the purposes of s 86(1B). The correct final order in the circumstances is a matter of proper construction of the Care Act.

  6. The term “final order” is not defined in the Care Act. It is noted that s 86(1B) contains the phrase “since a final order was made in the proceedings”. Section 90(2) of the Care Act contains the phrase “since the care order was made or last varied”. It is assumed that the legislature had a reason for the different phraseology in the two sections.

  7. In the decision of S which I have referred to above, Davies AJA stated at [27] that what was required was “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”. However, this opinion uses the terminology in s 90 of the Act.

  8. In my view, consistent with the view of the Magistrate below, the relevant “final order” in the present case was the order made on 14 July 2011 in the Children’s Court allocating parental responsibility for the children to the relevant Minister until each child attains 18 years of age. This construction gives some weight to the variation between the phrases in s 86 and s 90. I could locate no relevant appellate authorities on the issue.

  9. It is noted that the 2016 order was only made for 12 months in relation to A. This must be seen in the context of s 86(6) and (7). The Secretary submitted that the 2016 order was a final order as it determined an application for contact. This gathers some support from ss 62 and 89 of the Care Act. The latter refers to “a final order” which is “concerning the application”.

  10. However, as raised in argument, a series of 12 month contact orders following applications would require a significant change in any relevant circumstances from the previous determined application if the Secretary’s argument were accepted. A significant change also often but not always requires some time to be evinced. The interpretation urged on behalf of the mother more easily facilitates the establishment of a significant change in relevant circumstances. The Secretary’s construction would make the task a much more difficult one in many circumstances for a parent. This leans against that construction.

  11. Reviewing the Care Act as a whole, the phrase “a final order” in s 86(1B) is different to a “care order”. Section 60 of the Care Act refers to a care order as including a contact order under s 86. However, the term “care order” was not used in s 86(1B). Similarly, s 86(1B) does not refer to “a final contact order” as it could have. These matters support the mother’s construction of s 86(1B).

  12. The discretion which clearly exists in the section which the court has is the legislative safeguard to prevent children from persistent litigation in relation to contact based on an alleged change in relevant circumstances. My view also takes into account the limited period of 12 months for a contact order referred to in s 86(6) of the Care Act. This would be an indication that the relevant “final order” was not the s 86 application made by the plaintiff in June 2015 which was concluded with orders for contact only in relation to A in February 2016 for a limited period.

  13. If I am wrong in this construction, and the relevant final order is the 2016 contact order in relation to A, I consider below relevant changes from February 2016.

Significant change in any relevant circumstances

  1. Accordingly, the court has to look at whether there has been a significant change in any relevant circumstances since the 14 July 2011 final order.

  2. All the parties’ submissions accept that there have been significant changes in relevant circumstances since that time. This view is well-founded. I accept the various submissions which have been made by the parties in relation to this issue. Significant changes in relevant circumstances in the period include:

  1. On the evidence, the plaintiff has dealt with a number of issues that appear to have given rise to the 14 July 2011 orders including illicit drug use and mental health issues which negatively affected the plaintiff’s capacity to care for the children and to have appropriate contact with the children;

  2. The plaintiff is no longer in a relationship allegedly involving domestic violence;

  3. Although early on, the children were content to engage in contact with the plaintiff, since 2014 the contact has been limited, even in relation to B and A, largely, it appears, due to the children not wishing to have contact with the plaintiff or being reluctant to do so;

  4. The plaintiff now has secure housing and employment and on the evidence has made very positive changes to her life. For this, she should be strongly commended. The evidence establishes a clear desire in the plaintiff to have a close and loving relationship with her children and to further their indigenous cultural life and their connections with their maternal and paternal families.

  1. Even if I am in error in relation to the correct final order and the appropriate final order is the February 2016 order, I find that there have been significant changes in relevant circumstances since that time. I reject the submissions made by counsel for the first defendant in paragraphs 35-37 of her written submissions. The various casework efforts and the report of Mr X have given significant insight into the children and the plaintiff has continued to show for an even longer period her stability and altered lifestyle and insight. There was also contact between the plaintiff and B and A at various times in the period 2016-2018: LM 20 September 2018 affidavit paragraphs 58-62; LM 4 June 2019 affidavit paragraphs 7-13.

  2. In addition:

  1. The children’s father has died and the plaintiff is the children’s only living parent;

  2. The mother had significant work experience from 2017 to 2019 as a therapist and social worker including working with traumatised children;

  3. The mother received a Diploma [confidential] in August 2018 showing a commitment to further education and cultural insight;

  4. There have been substantial changes in the LWB caseworkers in the relevant period with numerous attempts at further interventions.

  1. The matters referred to are all significant changes in relevant circumstances that have some prospects in due course in effecting in a positive fashion the likelihood of worthwhile future contact arrangements between the plaintiff and B and A, despite the apparent refusal for contact by the children previously. I prefer the submissions of the mother to those of the Secretary and the guardian ad litem on this point.

Discretion to exercise the grant of leave

  1. The written submissions on behalf of the plaintiff submit that the court should as a matter of discretion grant leave in the present case and allow the appeal. I refer to:

  1. Paragraphs 44 and following of the written submissions on behalf of the plaintiff dated 1 June 2020; and

  2. Paragraphs 12-27 of the written submissions on behalf of the plaintiff dated 30 November 2020.

  1. These submissions were expanded in some detail in the plaintiff’s oral submissions.

  2. The written submissions of counsel for the first defendant oppose leave being granted: see paragraphs 38-59 of the written submissions dated 30 November 2020. In oral submissions, counsel for the Secretary pointed to the efforts which have been made to facilitate contact with the mother in 2019-2020 by LWB even though no contact orders have been made relating to B and A. Similar submissions are made by the guardian ad litem on behalf of the child A: written submissions dated 8 February 2021 paragraphs 25-36. These were also expanded upon orally. Emphasis was particularly drawn to the meetings between the guardian and A in January 2021, the views of A and the adverse effect of continued litigation on A.

  3. The written submissions on behalf of the child B are to a similar effect. They emphasise the desirability of ending litigation and point to the continued firm opposition of B to contact with her mother and the futility of a contact order. In particular, these submissions point to B’s wish that there be no further legal proceedings. This appears to be B’s consistent wish on the evidence and as at 28 May 2019 and 12 November 2020 her position had remained unchanged: paragraph 13 of the written submissions by counsel for B dated 1 June 2020; paragraphs 4-8 and 15 of the position paper filed 12 November 2020. As is pointed out, B is now aged 13 and a half years, is able to express a view in a responsible manner and a considerable period of her life has been involved in litigation. Emphasis is made to the distress, instability and uncertainty of recurrent litigation which points to the discretionary power being exercised against the grant of leave. It is accepted, however, that there could be a benefit to B should she be able to have a relationship with her mother. It is emphasised that therapeutic approaches can occur in relation to the children and Ms LM in the absence of litigation (paragraph 34). No further hearing is desirable or warranted.

  4. These matters were very relevant to the court granting the application for an adjournment on 2 June 2020 to allow obtaining a report from Mr X and to allow further counselling and other therapeutic processes in relation to A and B without imminent curial procedures casting a shadow over the children’s lives.

  5. I accept the written submissions of the guardian ad litem to the following effect: “This is a very difficult case”: written submissions dated 8 February 2021 paragraph 12.

  6. I have further reviewed the various written submissions made from May 2020 on behalf of the various parties and considered the matters raised orally on 8 February 2021.

  7. I reject the submission of counsel for the mother that the discretion is severely limited and only the matters in s 86(1B) and (1D) and ss 8-9 of the Care Act can be taken into account in its exercise. This limitation is not expressed in the section itself nor is it the clear effect of construing the Care Act as a whole. I accept the Secretary’s submission on this issue. It is assisted by the use of the word “may” in s 86(1B) of the Care Act.

  8. The factors I take into account in the matter include the following:

  1. The children have expressed views that they do not wish to have contact with the plaintiff. These views have been stronger in the case of B, on the evidence, than in the case of A;

  2. The ages of the children, particularly B, who is now 13 and a half;

  1. The consistency of the views expressed;

  2. The involvement of the guardian ad litem and Mr Stuart’s meetings with A in January 2021;

  3. Although the court must take into account the views of the children, those views should not outweigh the possible value to the children’s overall safety, welfare and well-being in the consideration of whether to grant leave: s 9(1) and (2)(a) of the Care Act. See also Mr X’s report;

  4. The court is satisfied that appropriate experts have been engaged in relation to the two children with the involvement of LBW to assist in bringing a positive view in relation to the plaintiff and the birth families. This has not presently been successful in altering the children’s views;

  5. The evidence establishes that A has been unable on a number of occasions to explain why he does not wish to see the plaintiff: see for example the [confidential] report quoted in paragraph 30 of the guardian ad litem’s submissions;

  6. I refer to the plaintiff’s evidence of a positive exchange with her children in January 2020; see the plaintiff’s affidavit affirmed 30 January 2020 at paragraphs 6-11. This is significant;

  7. I am satisfied that LWB is now devoting appropriate resources to assist the children in encouraging a positive view of the plaintiff and her family;

  8. Mr X’s report sets out in some detail the difficulties in facilitating workable contact arrangements between the mother and the children A and B. However, it emphasises the potential of positive contact with the mother and makes a number of recommendations. [Confidential];

  9. The effect of the litigation on the physical and mental health of B – see paragraph 47 of the first defendant’s submissions and the evidence there referred to;

  10. The effect of continued litigation on A, particularly if his views are not adopted and the litigation takes some time to conclude;

  11. The possibility that any orders made for contact will be futile;

  12. The opportunities of further cultural development if contact with the mother and her family can be facilitated;

  13. There is no evidence that contact with the mother would be harmful to the children.

  1. The position of the child B is a complex one. Her age and her persistent negative views in relation to contact with the plaintiff (as indicated clearly on the evidence) weigh strongly against the appeal being allowed. She has been with the carers for an extensive period. She has obviously formed a fairly close relationship with them. [Confidential]. Continued litigation as to contact with the mother has been confronting and challenging for her. Any contact orders relating to B are likely to be futile having regard to her firm views. In the end, having considered the competing factors raised by the parties in their submissions, I am on balance persuaded by the submissions of the first defendant and the Direct Legal Representative that the discretion should be exercised against the grant of leave in relation to B for the reasons I have given.

  2. The evidence seems to establish that A and B are close. They obviously live in a house with the relevant carers together and clearly at the end of the day, some positive relationship with the plaintiff is highly desirable. B is 13 and a half and her views have been firm and consistent. I take them into account while accepting that they are not decisive. I do not consider that it is in her interests that she presently be exposed to further litigation as to contact with the plaintiff. [Confidential]. B is still young and the various consultants involved may assist in achieving positive results in relation to her perceptions of her mother. The January 2020 informal contact also assists me in holding this view. However, until this occurs I think it highly likely that contact orders in relation to the mother will be negative to her and very likely be futile as she would refuse to attend. I reject the submissions for the plaintiff in relation to B. I refuse leave in relation to B.

  3. I have taken a different view in relation to A despite the careful and detailed submissions on behalf of the guardian ad litem and the Secretary and the concluding recommendations of Mr X as to the way forward. A is younger than B and on all the evidence, much less mature and sophisticated in his views. While negative in relation to contact with the mother, he has not been able to articulate in any real reasoned way the basis of his objection. It is unlikely he has any recollections in relation to his time in the care of the mother. The evidence that he has said that he does not “need” the mother reveals a simplistic approach. Mr X in his report places A in a different position compared to B and [confidential]. A’s concerns about remaining with his carer family are important and are currently not in issue. I also take into account A’s medical conditions which I have referred to above. I am not persuaded, as I am with B, that potential contact orders will be futile in the case of A.

  4. Balancing all of these matters, in my view the factors indicate that the appeal should be allowed and leave granted in relation to the child A. He is younger and his views as to the plaintiff have not always been consistent in their strength. Positive contact with the mother would be very beneficial to him. I have carefully considered the paramount principle and the submissions of the first defendant and the guardian ad litem. I accept paragraph 57 of the first defendant’s 30 November 2020 written submissions but note that the application before the Children’s Court will take some time to prepare and bring.

  5. [Confidential].

  6. Overall, I am persuaded by the submissions of counsel for the mother that leave in relation to A may result in orders which have some utility.

  7. Although the parties sought that this court determine the substantive application for contact orders I consider the matter should be heard by the Children’s Court. This allows some further time for progress to be made in relation to the perception of the mother by A. [Confidential].

Determination

  1. For the above reasons, I allow the appeal in relation to A only and grant the leave sought only in relation to him.

  2. I make the following orders:

  1. The appeal is allowed in relation to A.

  2. The appeal is dismissed in relation to B.

  3. The orders of the Children’s Court dated 26 September 2019 in relation to A are set aside.

  4. Leave is granted to the plaintiff pursuant to s 86 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) to make a substantive application for contact orders in relation to A.

  5. The proceedings are remitted to the Children’s Court of New South Wales at Broadmeadow for hearing of the substantive application under s 86 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) by the plaintiff for contact orders in relation to A.

**********

Decision last updated: 26 February 2021

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

9

Statutory Material Cited

3

GR v Department of Communities & Justice [2020] NSWSC 1622
JL v Secretary, Department of Family and Community Services [2015] NSWCA 88
LZ v Secretary, Department of Family and Community Services [2019] NSWDC 156