LZ v Secretary, Department of Family and Community Services

[2019] NSWDC 156

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	LZ v Secretary, Department of Family and Community Services [2019] NSWDC 156
Hearing dates:	18 March 2019; 4-5 April 2019
Date of orders:	01 May 2019
Decision date:	01 May 2019
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) The Summons filed 11 September 2018 is dismissed. (2) The appeal is dismissed.
Catchwords:	Child welfare - care and protection of children - care and protection orders - appeal from Children’s Court to District Court - application for leave to apply to Children’s Court to rescind orders made
Legislation Cited:	Court Suppression and Non-Publication Orders Act 2010 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Children and Young Persons (Care and Protection) Amendment Act 2018 (NSW)
Cases Cited:	In the matter of Campbell [2011] NSWSC 761 JL v Secretary, Department of Family and Community Services [2015] NSWCA 88 Nan v Secretary, Department of Family and Community Services [2016] NSWDC 271 Potkonyak v Legal Services Commissioner (No 2) [2018] NSWCA 173 Re Felicity (No 3) [2014] NSWCA 226 Re Jeremy [2017] NSWCA 220 Re M (No 6) [2016] NSWSC 170 Re Tracey [2011] NSWCA 43 S v Department of Community Services [2002] NSWCA 151
Category:	Principal judgment
Parties:	LZ (Appellant/Plaintiff (the mother)) Secretary, Department of Family and Community Services (First Respondent (The Secretary)) PC ((Second Respondent/Defendant (the father)) Independent Legal Representative
Representation:	Counsel: In Person (Appellant/Plaintiff (the mother)) Mr J Harris (First Respondent (The Secretary)) In person (via AVL) (Second Respondent/Defendant (the father)) Mr R Clack (Independent Legal Representative)   Solicitors: Crown Solicitor for NSW (First Respondent (The Secretary)) Legal Aid NSW (Independent Legal Representative)
File Number(s):	2018/00280034
Publication restriction:	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 except in relation to the first defendant, the Secretary, and the third defendant, the Independent Legal Representative, Mr Raymond Clack.
Decision under appeal	Court or tribunal: New South Wales Children’s Court Jurisdiction: Care and Protection Date of Decision: 16 August 2018 Before: Duncombe CCM File Number(s): 2017/00292350

Judgment

1. In these proceedings, the appellant/plaintiff LZ, who is the mother of the child who will I refer to in these reasons as AB, pursuant to a Summons filed on 11 September 2018, seeks various orders including:

1. That a decision of the Children’s Court on 16 August 2018 be set aside refusing leave to the plaintiff LZ to apply to rescind and/or vary a care order made in relation to AB; and

2. To grant leave to LZ to “prosecute the application for rescission or variation of the care order of 16 August 2018”.

2. It appears that this latter request for relief is erroneous because the care order in question was made not on 16 August 2018 but on 30 March 2017.

3. The first defendant in the proceedings is the Secretary of the Department of Family and Community Services. The second defendant in the proceedings is the biological father of the child AB, PC. The third defendant in the proceedings is the Independent Legal Representative, Mr Raymond Clack.

4. In substance, final care orders were made in relation to the child AB on 30 March 2017 placing the child AB under the sole parental responsibility of the Minister, Family and Community Services, until AB attains the age of 18 years. AB is currently 9 years old. On 30 April 2018 the mother of the child, LZ, applied to rescind or vary those care orders. Leave to make that application was rejected by the Children’s Court on 16 August 2018 and an appeal is made from that decision to this court. All the parties were represented or appeared at the hearing of the appeal. The mother, LZ, was self-represented. The second defendant, PC, was also self-represented and appeared by audio-visual link. The first defendant, the Secretary, was represented by Mr Harris of Counsel.

Procedural

5. As indicated above, the Summons was filed on 11 September 2018.

6. At the commencement of the hearing, 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.

7. At the commencement of the hearing, a joint tender bundle was tendered and became Exhibit A in the proceedings. Later, some further documents were added to the tender bundle by agreement. The mother, the Secretary and the Independent Legal Representative provided to the court detailed and helpful written submissions. The father, PC, made oral submissions on the third day of the hearing.

8. On the first hearing day, oral evidence was given by a child psychologist, Ms NK. Ms NK was cross-examined by the father and questions were also asked of her by the plaintiff, LZ, and the Independent Legal Representative.

The legislative scheme

9. It is important to set out the legislative scheme applicable to these proceedings.

10. In 2018 the Children and Young Persons (Care and Protection) Amendment Act 2018 (NSW) was passed. It was assented to on 28 November 2018. The amendments to s 90 of the Care Act came into force in February 2019. However, s 51 of Schedule 3 to the Care Act provides as follows: “An application for leave under section 90(1) that was pending before the commencement of the amendments made to section 90 by the amending Act is to continue to be dealt with under section 90 as in force immediately before that commencement”. Accordingly, this appeal is to be determined by s 90 of the Care Act in force immediately before the February 2019 amendments. I accept paragraph 11 of the written submissions of the first defendant dated 17 March 2019 to this effect.

11. Section 90 of the Care Act in force as at 3 February 2019 is as follows:

“90   Rescission and variation of care orders

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

(1A)  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 vary or rescind the care order, the Children’s Court must take the following matters into consideration:

(a)  the nature of the application, and

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

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

(d)  the plans for the child, and

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

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

(i)  a report under section 82, or

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

(3)  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.

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

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

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

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

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

(7)  If the Children’s Court is satisfied, on an application made to it with respect to a child or young person, that it is appropriate to do so:

(a)  it may, by order, vary or rescind an order for the care and protection of the child or young person, and

(b)  if it rescinds such an order—it may, in accordance with this Chapter, make any one of the orders that it could have made in relation to the child or young person had an application been made to it with respect to the child or young person.

(8)  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.”

12. 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.”

13. The principles to be applied for 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.”

14. 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.”

15. Accordingly:

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 Summons the plaintiff says she is dissatisfied with the order of the Children’s Court made on 16 August 2018;

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

3. An appeal is to be by way of a new hearing and fresh evidence or evidence given in addition to or in substitution for the evidence on which the order was made may be given on the appeal: s 91(2) of the Care Act;

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

5. 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: s 91(4) of the Care Act;

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 affect accordingly: s 91(6) of the Care Act;

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 a 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.

Principles applicable

16. The parties in their written submissions have made submissions in relation to the legal principles which are applicable to the court's determination of the issues before it.

17. 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. It is established that the term “order” in s 91(1) of the Care Act, encompasses an order of the court refusing an application for a care order or for rescission or variation of a care order: S v Department of Community Services [2002] NSWCA 151 at [53] per Davies AJA (with whom Heydon and Hodgson JJA agreed).

18. Under the Care Act, the court may grant leave to make an application for the rescission or variation of a care order if it appears to the court that there has been “a significant change in any relevant circumstances” since the care order was made or last varied: s 90(2) of the Care Act.

19. 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. 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, para (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 para (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.”

20. Accordingly:

1. The power to grant leave is only triggered where the court is satisfied that a significant change in relevant circumstances has occurred;

2. That is a matter as to which the applicant bears the onus of proof;

3. The required satisfaction is a matter of fact;

4. The court must take into account the matters in s 90(2A) of the Care Act which are mandatory considerations to be considered before the court may grant leave to vary or rescind a care order.

21. In S, above, Davies AJA stated as follows in paragraphs 23 and 27 of his Honour’s judgement:

“[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. S90(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.”

22. Therefore:

1. 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 the person would be entitled to the order sought;

2. The applicant has to establish there has been a change of sufficient significance to justify the consideration of an application for rescission or variation of the care order;

3. What is required is a comparison between the situation at the time when the application was heard (March-April 2019) and the facts underlying the decision when the order was last made or varied, in this case being March 2017.

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.”

24. 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].

26. Under s 90(2A) of the Act, before granting leave to vary or rescind the care order, the court must take into account whether the applicant has an arguable case amongst other matters set out in that subsection: s 90(2A)(e). 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.”

27. Accordingly, the concept of “an arguable case” within s 90(2A)(e) 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 must be a reasonable case.

28. In Campbell, above, Slattery J held at [39] that while s 90(2A) of the Care Act identifies the mandatory considerations for s 90(1) leave applications, and s 90(6) identifies the mandatory considerations that apply upon a substantive application to vary or rescind a care order once leave has been granted under s 90(1), 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 at the relevant s 90(6) considerations when analysing the arguable case issues. It seems clear, however, that the matters in s 90(6) of the Care Act are not mandatory considerations for the court in considering the leave issue: the mandatory considerations are those in s 90(2A): see JL, above, at [185] and Re Campbell, above, at [39]. See also JL, above at [124].

29. The first defendant submits that in order to rescind the care orders and have the child AB placed in the care of the mother, the court would need to be satisfied that there is a realistic possibility of restoration to the mother within a reasonable period: s 83(7): written submissions paragraph 17. Slattery J in Campbell, above, held that what the section requires is 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. Slattery J held as follows:

“It is going too far to read into the expression a requirement that an applicant must always at the time of hearing of the application for recision or variation have demonstrated participation in a program with some significant “runs on the board”. That in my view is to put a gloss on the words which are not in the legislation.”

30. Thus, there must be a realistic possibility at the time of assessment not merely a future possibility: see Campbell at paragraphs [54]-[57].

31. The Secretary also submits that if the court upholds the appeal and grants leave, the court should remit the proceedings to the Children’s Court for determination of the mother’s substantive application: written submissions paragraph 18. Reference was made to Nan v Secretary Department of Family and Community Services [2016] NSWDC 271 at [14].

32. The plaintiff, LZ, submitted that the court should find that this court should determine the substantive application if leave were granted, not the Children’s Court: reply submissions paragraphs 46-58. LZ believed she would not get a fair hearing in the Children’s Court: reply submissions paragraph 49. LZ submitted that ss 56-60 of the Civil Procedure Act 2005 indicated that this court was the preferred forum. She also distinguished a number of cases where the proceedings were remitted to the Children’s Court. In my view, the substantive hearing, if leave were granted, should not be heard in this court although there does not appear to be any binding authority at an appellate level on the issue. In my view, if leave is granted, it is appropriate for the matter to return to the Children’s Court. As submitted by Mr Harris, an applicant will then preserve a right of appeal to this court in the event that the substantive hearing is determined against the applicant. In addition, I accept Mr Harris’ submission that the Children’s Court is a specialist court. I do not see ss 56-60 of the Civil Procedure Act as mandating a different result. There is no indication that a faster hearing would be obtained in this court or at less cost.

33. The decision to grant leave is a discretionary one. The court may decline the leave sought even if the applicant has established that there has been a significant change in any relevant circumstances: Re M (No 6) [2016] NSWSC 170 at [66] where Robb J stated as follows:

“[66] I respectfully agree. Section 90(1) authorises an application for the rescission or variation of a care order with the leave of the Children’s Court. For the reasons given above, the Children’s Court has a general discretion as to whether or not to grant leave, even if the applicant establishes that there has been a significant change in any relevant circumstances since the care order was last made or varied. The wording of s 90 of the Care Act does not require the court to give or refuse leave in respect of the entirety of the application foreshadowed by the applicant. Both the words “rescission” and “variation” are naturally capable of referring to all or any part of a particular care order. The overriding principle in s 9(1) of the Care Act that the “safety, welfare and well-being of the child or young person are paramount” justifies a construction of s 90(1) of the Care Act that gives to the Children’s Court power to grant leave for an application to be made in relation to limited aspects of a care order, on whatever condition may be appropriate. Otherwise, the Children’s Court would be obliged to refuse leave where the applicant had not satisfied the Court that leave should be given for an application to rescind or vary the care order in all respects sought by the applicant, but the basis for leave had been established in respect of some aspects of the care order, and it was in the interests of the child or young person that those aspects be revisited by the Children’s Court. That result would not facilitate the safety, welfare and well-being of the relevant child or young person.”

34. Clearly, the statutory matters in ss 90(2) and 90(2A) are primary matters in the exercise of the discretion.

35. Having reviewed the written submissions of the Secretary, the Independent Legal Representative and the plaintiff, there do not appear to be any substantial relevant differences in relation to the legal principles which it is said should be applied in this matter. LZ in her reply submissions submitted that the United Nations Convention on the Rights of the Child (1989) (“CROC”) Articles 8, 29 and 30 should also be taken into account relying on Re Tracey [2011] NSWCA 43 at [25]-[26]: reply submissions paragraphs 37-40. Mr Harris of counsel for the first defendant submitted that the court could properly take into account CROC and that it was capable of influencing the court’s discretion in the matter, but that the provisions of CROC would not lead the court to a different determination. He also referred to Article 9 which he submitted was relevant to the present case. Mr Clack adopted this submission. PC said CROC should be considered by the court.

Relevant background facts

36. The child AB was born in January 2010 and accordingly is now nine years old. She attends a government primary school. AB is the daughter of the plaintiff mother and the second defendant father, PC. PC is currently on remand at a correctional facility pending a trial. As stated above, AB is placed in the parental responsibility of the Minister of Family and Community Services until she is 18. AB has been placed with foster parents successfully for the last three years.

37. In order to assist in understanding the matter and in assessing the position as at 30 March 2017 compared to the current position, it is useful to set out a number of background facts. Unless indicated to the contrary, these constitute my factual findings in the matter:

1. The second defendant, PC, the biological father of the child AB, was born in April 1978;

2. The plaintiff applicant, the biological mother of the child AB, was born in October 1980;

3. The child AB has a brother, NW. He is a half-brother to the child AB. His mother is the plaintiff LZ. His father is a third party. NW was born in October 2006 and is currently in the care of his father. The plaintiff has had a number of occasions of contact with her half-brother, NW, and appears from all the material to enjoy the contact with him;

4. As stated above, in January 2010 the child the subject of the proceedings, AB, was born;

5. On 8 February 2010, AB was removed from her mother's care and placed into foster care. The evidence seems to establish that this was following her half-brother, NW, being removed from the mother’s care. There were alleged issues in relation to the mother being homeless, unwilling to cooperate with the Department of Family and Community Services and having a lack of insight into concerns relating to the health of the child's father, PC. I only refer to the allegations made and make no findings as to the truth of the allegations;

6. On 26 May 2011, final orders were made in the Children’s Court allowing for the return of the child AB to her mother LZ at the expiry of a six month period. The plaintiff mother, LZ, gave undertakings to the court not to have contact with the father PC and not to allow the father to have contact with the child AB outside set times specified by the then Director-General of the Department. The father also signed undertakings. The relevant orders and the undertakings of the mother LZ and the father PC are in the tender bundle Exhibit A behind Tab 1.

7. On 22 December 2011, following restoration of AB to the mother’s full-time care on 5 August 2011, a report was received with allegations that the mother was drug affected and had absconded overseas with the child: care plan Exhibit A behind Tab 2. LZ strongly attacked the drug allegation in her reply submissions: paragraph 14. I make no findings in relation to the accuracy of the drug allegations as there is no relevant evidence before me on the issue.

8. On 26 April 2012, a report was received by the Department with allegations that the father was having unsupervised contact with the child AB, despite orders that he was not supposed to have unsupervised contact.

9. In May 2014, the mother informed caseworkers that the child was currently in China in the care of her aunt and maternal grandmother. Information received from the Department of Immigration noted that the child had been outside Australia since 7 January 2014;

10. In her affidavit affirmed 30 April 2018, the mother LZ gave evidence that she had been living in her then current place of residence since October 2015: paragraph 15L;

11. Information was received that the mother, who was in China, had called the father asking him to look after the child. The plaintiff indicated that she believed that at this time the father was in another relationship with a woman who had a child and that that woman was suitable to look after AB. Having regard to the fact that the father PC seemed to have responsibility for collecting the child from her school, caseworkers attended the relevant school at which the child was attending and assumed responsibility for the child and conveyed her to a foster parent placement. This was in late April 2016;

12. It appears that the child AB was having contact with her paternal grandmother, IB, with whom she is fairly close, prior to being taken into care by the caseworkers;

13. On 3 May 2016, the child AB was placed with her current foster carers and has remained with them since. The evidence establishes that the child AB is settled in the placement with the foster parents, sees herself as part of the family, is happy, and is progressing well in that family relationship and at school. Accordingly, the child AB has been with her current foster carers for nearly three years: see the affidavit of Amy Schofield affirmed 13 November 2018 at paragraph 14;

1. On 4 May 2016, an application for rescission/variation of a care order was filed by the Secretary of the Department of Family and Community Services, the first defendant: Exhibit A Tab 2. The grounds relied upon included that both the mother and the father had breached undertakings given to the court by permitting the father to have unsupervised access with the child;

2. On 28 May 2016, the mother LZ returned to Australia from China;

3. On 8 July 2016, the Department of Family and Community Services filed a detailed care plan with the Children’s Court proposing final orders that parental responsibility be granted to the Minister until the child AB attains the age of 18 years;

4. Before the Children’s Court in 2018 and this court was affidavit evidence which was before the Children’s Court in 2017. This evidence established that at times the plaintiff mother left the child AB in the care of an 18-year-old nanny from Germany whom she had employed. An urgent need for the nanny to return to Germany arose, leading to the child being cared for by her maternal grandmother, IB. The evidence establishes that the mother had fairly regular Skype contact with the child in this period but was absent in China partly because of reasons connected to her work.

5. The hearing of the May 2016 application commenced in the Children’s Court on 15 February 2017. The transcript was in evidence: see Exhibit A page 10 and following. In the course of the hearing, the plaintiff was cross-examined and made a number of admissions which included:

1. The plaintiff went overseas in March 2016 leaving the child in Australia: T41.43;

2. Her contact with the child was daily contact by telephone: T41.50;

3. The child had been out of the mother’s care since March 2016, a period of nearly a year: T42.5;

4. The plaintiff challenged the suggestion that the child did not want to see her: T42.44;

5. She was of the view that the child was a “little bit” manipulative and told lies as well as being “a bit lazy”: T44. This was despite the child only being six years old at the time she made this assessment;

6. The plaintiff did not accept that the child was scared of her: T47.11;

7. The mother would be strict with the child in relation to the completion of homework: T47.41;

8. She needed to go to work and she would arrange for the child to be placed in before and after school care: T48.4;

9. The father promised that his wife would do all the supervising of the child for him in the plaintiff's absence overseas: T49.24;

10. This was despite the plaintiff claiming that the father had made threats: T50.31;

11. The mother gave the child to the father as she thought that contact with him was normal despite the undertakings: T51;

12. The mother did not know the detail of how long the child was with the father before going to the maternal grandmother: T54;

13. The child was left with the father and the maternal grandmother due to work commitments of the plaintiff: T55;

14. The child was left with the German nanny on 2 March 2016 whilst the plaintiff went to China: T57-58. The nanny was 18 at that time: T58.27. The plaintiff accepted that that was not appropriate: T59.23. She said she could not return to Australia when the nanny had to go to Germany because she had made work commitments to assist someone in China: T59.46. She did not return because she did not wish to breach her promise to a person to assist them with the work: T60.24. As she believed that the child was being cared for by the child’s paternal grandmother, she thought she did not need to worry: T61.19. She now recognised that the choice she made was wrong: T63;

15. The plaintiff accepted that she needed a counsellor to help her re-engage with the child: T5.41 (16 February 2017). A concession was made on 16 February 2017 by the mother of a non-realistic possibility of restoration to her;

19. On 16 February 2017, judgment was given by Hogg CCM, granting leave to the Secretary under s 90 of the Act;

20. Commencing on 16 March 2017, the child AB had a number of sessions with NK, the child psychologist who has been referred to above. The child indicated to NK negative feelings connected with the mother including being scared, lonely and worried;

21. On 14 March 2017, an amended care plan was filed with the Children’s Court which confirmed the placement of the child with the foster carers on an ongoing basis;

22. On 30 March 2017, final orders were made in the Children’s Court allocating parental responsibility for the child AB to the Minister of the Department of Family and Community Services until the child reached 18 years of age: Exhibit A behind Tab 5;

23. The child continued having sessions with the child psychologist, NK, in 2017. The child reported to NK that she felt safe and happy with her current foster carers and in the light of that, felt more positive with sessions with her mother. A further session indicated continued happiness with the placement with the foster parents and with her position at her school;

24. On 10 May 2017, there was a session between the mother and NK to assist the mother in her relationship with the child and to gain insight with the child. Further sessions occurred on 30 June 2017 and on 31 August 2017. A contact was organised on 10 October 2017, so that NK could observe the mother and child together. In her report, NK stated:

“No further joint sessions are recommended at this time. [Child] and [Mother] should benefit from naturally occurring experiences during contact visits to strengthen their relationship.”

25. One document completed by the child in this period included the following: “I only want to see my mum sometimes. I have seen her too much already”. The child indicated that she did not wish her mother and father to come to the review. She said she felt very unhappy at this time after seeing her family;

26. On 30 April 2018, the mother filed an application under s 90 of the Care Act with a supporting affidavit in the Children’s Court: Exhibit A Tab 7. The matters relied upon by the mother in support of her application included that she had attended supervised contact regularly and on time with the child and demonstrated appropriate parenting skills during supervised contact, she had completed individual therapy with NK, she had completed a joint session with the child and NK, no concern was expressed in relation to her insight or empathy by NK, she had not made any overseas travel since December 2016, the child missed connection to her family members in China, she has not breached any orders of the court and she stated that she was “self-sufficient and stable. I have been living in current place since October 2015”. An affidavit was filed by the plaintiff: Exhibit A tab 8. The plaintiff set out in her affidavit what she submitted were significant changes, being the matters referred to in the application. She set out her plans for the child including that she would reside in the apartment where the mother and child lived prior to her removal, the child would remain in her school, and she would remain in contact with her foster siblings and foster parents as she wished;

27. On 2 May 2018, a s 82 report was prepared for submission to the Children’s Court: Exhibit A tab 6. The report was very positive in relation to the child's placement with her foster parents. It was noted the child continued “to settle and thrive in the long-term care of her carers” and felt very much part of the carers’ family. It was said that she was settled and was adapting positively to the home environment and had made substantial progress at school. The child enjoyed contact with her half-brother. Comments were made in relation to the contact between the child and the plaintiff which occurred six times per year. It was noted that a contact occurred between the child and the maternal grandfather in the presence of the mother. He was visiting from China. It was said that that contact visit “proved very traumatising for [the child] as she confided in the case manager and her carer that she thought that her grandfather was going to take her back to China.” Following contact with the grandfather the child sought psychological support. It was recommended that contact visits between the mother and the child still needed to be supervised “as there still appears to be an emotional disconnection between [the mother] and [the child]”;

28. The evidence discloses that the child continues to attend the local public school and is doing reasonably well as a student, including being a member of the Student Representative Council and excelling in one aspect of sport: see the affidavit of Ms Schofield affirmed 13 November 2018 at paragraphs 26-30;

29. On 21 June 2018, the child's caseworker prepared a report which suggested that there had been some criticisms by the mother of the child. There was also allegedly some indication by the mother to the child that she would get her and remove her from the foster carers which caused the child to be “scared”. As this information came from the child and the child is still quite young, some care must be exercised in relation to this information. However, it shows the child’s perception at the time. Although the child said that her interaction in the visits with her mother was “good”, the care worker noted that there had never been any response from the child about her interaction with her mother through her own initiation. Also, any gifts given by the mother to the child at contact visits were hidden out of sight by the child or placed in the bin. The caseworker stated that the child went to contact visits with the mother because she knew that was part of the “case plan” but there was said to be no attachment: see affidavit of Ms Duceva affirmed 15 June 2018 paragraph 40: Exhibit A Tab 9;

30. On 16 August 2018, Duncombe CCM gave her decision in relation to the application by the plaintiff. Her Honour rejected the application and found that there was “overwhelming evidence” that leave should be refused. See Exhibit A tab 11. Clearly this court must form its own view on this issue;

31. As stated above, on 11 September 2018 the mother filed her application for leave for rescission/variation;

32. There was various contact by the mother with the child over the period from September 2018. This is outlined in the affidavit of Ms Schofield affirmed 13 November 2018 for the period up to that date: see paragraphs 19-25 of Ms Schofield's affidavit. The contact appeared to be generally positive although on occasions the child appeared to be uncomfortable with the mother's physical interactions and was particularly concerned in relation to the mother seeking for there to be contact between the child and her current partner. The foster parent mother indicated that the child was scared that her mother would follow her and take her at the end of a contact visit: Schofield affidavit paragraphs 24-25;

33. On the second day of the hearing, certain exhibits from Ms Schofield’s affidavit were tendered by the Secretary without objection and became Exhibit 1. These included various records relating to the supervised contact visits between the mother and the child in September and October 2018. The records confirmed the matters in Ms Schofield’s affidavit. The child appeared to be confused when she saw the plaintiff’s current partner with her and particularly when he said goodbye to AB (Exhibit 1 page 15). The child also expressed some concern when the mother asked which way the caseworker and child were going at the end of the contact visit as she (AB) thought her mother may follow her (Exhibit 1 pages 7, 18, 30). Overall, the records indicate that the mother made every effort to be affectionate and kind to AB and show interest with her school life and progress (Exhibit 1 pages 9,15-16) but there appeared to be very limited reciprocity from the child (Exhibit 1 pages 9, 10-11, 15, 16, 17). Obviously the age of the child needs to be considered when reading these records. A request by the mother to have contact visits at her home was rejected as being contrary to the caseworker’s policies (Exhibit 1 page 19);

34. The affidavit of Abigail Peralta affirmed 21 February 2019 provides more details in relation to contacts with the mother and the child in December 2018 and January 2019: Exhibit A Tab 15. The contacts were said to be “generally positive”. There was an alleged attempt by the mother to face time her current partner during a visit but the child did not want to have that contact: affidavit annexure B. The child also indicated that she did not want the mother’s partner to attend the contact: affidavit annexure A;

35. A diagrammatic form completed by the child was annexed to Ms Peralta's affidavit indicating that on 23 January 2019 the child believed her parents were not included in her concept of a “safety house”: affidavit annexure C;

36. On 6 February 2019, there was a meeting between NK and the child. NK indicated that the child appeared very settled living with the foster carers: Exhibit a Tab 16. The child indicated that she felt scared when left at home with her foster siblings for a short period as her “Mum might come” and take her from the home. It was again suggested that the child felt a lack of safety around her birth mother but that she feels “okay” as soon as she leaves her contact. The child indicated that she did not want anything to change in relation to her contact visits with her birth mother. She also indicated that she continued wanting to live with her foster parents as opposed to her birth mother and did not want “anything to change in her life”. NK recommended that the child continue to attend contact visits with her birth mother at the child's discretion and no further psychological intervention was recommended at that time;

37. A case plan was prepared on 13 February 2019 which indicated that the child was happy to be in a stable placement with her long term carers and wished to remain living with them long term. It was noted that the child displayed concerning behaviour at home at the moment and “shuts down” when the carers tried to speak to her about what was going on for her. Contact with the birth mother was said to be difficult for the child.

38. The plaintiff mother filed an affidavit in the proceedings sworn on 23 October 2018. The affidavit set out the variation of the current care orders sought by the mother including that the child be placed under the supervision of the Secretary for a period of 12 months but that there be a three month period of transition of the child to her care.

39. In her affidavit, the mother sets out what are said by her to be significant changes to the relevant circumstances:

1. The child's wishes were said to have changed and at the recent contact on 6 September 2018 the child expressed to the mother that she wishes to see her and her half sibling more and that she “wants to come home”;

2. That there was affection between the mother and child which was a sign that there was bonding between them which was still strong and that they were significantly connected;

3. The mother accepted that she was wrong in her assessment of the sincerity of the father and that she no longer trusted the father and would not accept any orders that compelled her to deal with him in any manner;

4. She explained her reasons for leaving the child with the 18-year-old nanny and eventually with the father and paternal grandmother;

5. The mother said that she no longer needed to go back to China for business. She no longer needed a nanny to care for the child and no longer wanted to have anything to do with the birth father;

6. There was no prospect of the child being abandoned by the mother. The mother said that she had learned the process of bonding, attachment and attachment bonding and the impact on brain development of the child when there were disruptions to attachment and the ways to respond to the child’s emotional needs;

7. By completing the sessions with NK, the plaintiff believed that she was able to identify and fix the issues identified by the Magistrate in 2017. She had also taken responsibility for and gained insight into her previous actions;

8. That the plaintiff had attended all scheduled contact with the child and has sought further contact but claimed that it was not available due to insufficient funding: see paragraphs 14-17;

9. That the mother could provide stable accommodation for the child at her new home which she had purchased. It was proposed that the child would reside with the mother at the new home in a suburb in Sydney and that she would stay in her school. The plaintiff also said that she would facilitate contact with her two foster siblings and her foster carer as much as the child wished. The mother also stated that she had stable employment with regular hours;

10. She wished that the child maintain her cultural heritage and maintain her working knowledge of the relevant foreign language;

11. Overall, it was submitted by the plaintiff that there had been significant changes to relevant circumstances.

Evidence of NK

40. Oral evidence was given by NK, the child psychologist, whose reports were before the court.

41. In her evidence in chief, NK stated that she was a registered psychologist based in Sydney and had prepared four reports in relation to the child AB: T22.24. Those reports related to consultations in 2017 and in February 2019, the latter with the child AB.

42. NK was cross-examined by the father of the child, PC. NK gave evidence that she was a registered psychologist having been registered in 2000 and specialising in child psychology since that date: T23.49-24.3.

43. In relation to the information provided to her for her consultation sessions, LK stated that she was provided with basic information including the affidavit prepared on behalf of the Secretary of the Department of Family and Community Services for the application: T24.22. It is noted that an affidavit of a care officer dated 4 May 2016 is referred to in the application filed by the Secretary on 4 May 2016: Exhibit A behind Tab 2. NK believed that she also had discussions with the caseworker which reinforced matters in the affidavit. She did not recall receiving further documents other than the initial information and she also did not recall receiving further emails prior to the first consultation other than correspondence creating the contact through giving instructions.

44. NK was asked questions about the consultation which occurred in April 2017 between NK and the child. NK confirmed that this occurred in a private room at the child's school: T24.45. NK's attention was brought by the father PC to that part of her consultation report where she states “when asked about her natural father, [the child] indicated that she does not see her father”. NK said that the child did not give her more information than that and did not elaborate on her father. It was put to her that it was relevant to explore her contact with her father in more detail. NK did not agree with that as the concerns which had been raised with her concerned the safety of the child’s contact with her mother.

45. NK was taken to her second report which covered consultations between May 2017 and October 2017.

46. In relation to the consultation on 10 May 2017, reference was made to the mother being advised that the court orders were for access for six times per year. It was put to NK that she needed to have access to the court orders to understand the child's relationship with the mother. NK disputed this and said that the main purpose was to help the mother in relation to her contact with the child: T25.49. She indicated that she believed the frequency of contact was verbalised to her. NK was asked about that aspect of her report where she indicated that the mother stated that she had a “strong focus” on the child's academic progress and physical health. NK said that she talked with the mother about the child's identity and the understanding of herself: T26.31. This needed to be considered as well as the mother’s emphasis on the child's academic progress and health.

40. In relation to the notes for the contact on 10 October 2017, NK agreed that the mother appeared to utilise the strategies that she had discussed with her during individual sessions in a contact with the child.

41. NK was then asked about her report for a consultation on 6 February 2019. NK was taken to that part of the report which was as follows:

“[The child] has a sense of who her birth mother is, but she does not identify any value in the contact visits. [The child] was very clear in stating that she does not want to live with her birth mother but she wants to live with [her foster parents]. [The child] also does not want her birth mother to bring other people to the contact visits.”

49. NK stated that the child appeared comfortable if contacts with the mother were at her (the child’s) discretion: T27.12. She stated that the child continued to have a fear of being taken from her current foster situation: T27.14. However, she regarded her mother as being a source of play and food.

50. NK was asked whether she saw value in continuing visits from the mother. NK said that she did. It was important to the child’s identity, family and sense of history: T27.20. However, she noted that the contacts should continue to be at the child's discretion.

51. NK was asked whether she could do further work to assist the child through additional consultations. NK said that the child had no mental health issues, no globalised sense of fear but needed a sense of safety. Her mother provided no perceived threat to her in the structure of the visit.

52. NK was then taken to the mother's affidavit sworn 23 October 2018 in paragraph 12 in which the mother set out matters that she had learned from NK in the course of their consultation. These included the process of bonding and attachment, the impact on brain development where there was a disruption to an attachment, ways to respond to the child to develop the attachment and responding to the child's emotional needs. NK confirmed that it was important to understand these matters. NK agreed that from her observation, there was progress in the development of the relationship between the child and the mother.

53. NK was asked whether the mother’s proposal of a restoration of the child to the mother in three months was realistic. NK said that she did not think it was: T28.22. When asked to suggest an appropriate timeframe for a restoration, NK declined to do this as she had not made an assessment of the mother's current situation: T28.26. She said that the child still had traumatic memories and she was very secure where she was: T28.28. She said any change would be extremely disruptive for the child: T28.31.

54. The father asked whether the mother’s evidence of the changes which had been made including her registration as a professional, her ability to pick the child up from school, her regular working hours, her agreement to the child staying at her current school, there being no trouble with secure accommodation and her devotion to the child were signs of significant change. NK said that in her view they would be: T28.45. This is relevant but not binding on the court. She also said that she thought that contact six times a year between the child and the mother was sufficient to develop their relationship: T29.19. When asked whether there could be an increase in contact, NK said that that was possible but it was important that it was at the discretion of the child.

55. The mother then asked a number of questions of the child psychologist NK. It was put to NK that it was difficult to assess the child's wishes as the authorities had only heard one side of the story and there was no meaningful opportunity during the contact visits to have discussions with the child because of the supervision and the circumstances of the visit. NK stated that the child appeared to believe that there had been a denial of what had happened to her. The background was important in relation to the child. Also, it appeared to be the situation that the child was not expressing to her mother her wishes.

56. It was put to NK by the mother that NK's role was to assist in repairing the relationship between the child and the mother. As NK was no longer recommending consultations, she must believe that the repairs to the relationship had been achieved. NK said that the child was concerned in relation to an apparent failure to accept by the mother what had occurred in the past and this had reinforced the child's fear. NK believed that the growth in the relationship in a natural environment through contact was better than dealing with it in a consultation contact.

57. The mother asked NK why no opportunity had been given to the child to see the changes in the mother's life and the positive things which had occurred. NK said that a child understands matters through past experiences. She expressed the opinion that the child would not understand that the mother had made changes for her. She said that to the child, security, safety and a secure environment were the most important.

58. The mother asked whether it would be good for the child to participate with the mother in other activities such as swimming and climbing rather than in the limited contact situation which had occurred to date. NK said that participation in such activities would be beneficial provided the other conditions were satisfied, being contact at the child’s discretion, having a contact worker for support for the child and without third parties present.

59. Mr Clack, the Independent Legal Representative, asked what the necessary conditions would be for increased contact between the mother and the child. NK said that there should be a contact worker present for support for the child and there needed to be a structure for the contacts. Contact should also be at the child’s discretion. It was stated that she definitely recalls the past and a perception of being left alone and separated from her mother and having physical symptoms when having anxiety and being scared of being left on her own. NK said these matters were still present, as the child had brought them up in the consultation in February 2019.

60. The court was very impressed by the evidence of NK and her reports. NK appeared to have a thorough understanding of the child's position and her perceptions. In the court’s view, it is important to take into account the views of NK having regard to her professional status as a child psychologist, her contact with the child, with the mother and seeing them together on a contact visit. It is also noted that NK had a consultation with the child recently in February 2019.

Submissions

61. The plaintiff made written and oral submissions. The plaintiff’s submissions in chief, in general summary, were as follows:

1. There have been significant changes in the position in relation to the child. It is no longer the position that the child does not wish to come home to the mother. At the contact on 6 September 2018, the child expressed to the mother that she wished to see her and her half-brother more and that she wanted to come home. During the 6 September 2018 contact, there was significant physical affection between the mother and child. There seemed to be an inconsistency in the evidence relating to the child's wishes. This suggests an exertion of influence on the child by someone, for example by being told that her restoration to the mother was not an option;

2. The mother accepted that she was wrong in her assessment of the sincerity of the father PC. The mother no longer trusted the father and would not accept any orders that compelled her to deal with him in any matter. She accepted it was wrong of her to break the undertakings given in 2011;

3. The mother accepts that she went overseas and left the child with an 18-year-old nanny. This was for her work. She could not find any other work and it was quite inexpensive to engage a nanny in exchange for providing her accommodation. She had met the nanny’s mother who was visiting Australia and judged the nanny and the mother both to be of good character. What occurred thereafter was “an unfortunate chain of events”. At all times the mother thought the child was in a safe place;

4. The mother no longer needed to go back overseas for business. The business is established and provides the mother with a modest income with very little time required of her. She has now completed her professional studies;

5. She no longer needs a nanny to look after the child and she has regular hours of work. She can manage to send the child to school and pick her up from after-school care;

6. In relation to there being little contact between the child and the mother before the child was taken from the mother, the mother agreed that the contact was not adequate. She now seeks greater contact with the child;

7. The child was never left alone. At the least, the child was left in the care of the nanny. The mother has been attending each arranged contact on time, the child enjoys each contact even though it is in a confined environment and this has built trust and affection between the mother and child;

8. The mother has done work with NK to understand the potential impact on the child because of her extended absences. As her affidavit establishes, she has learned a number of aspects in relation to responding to the child's development and the process of bonding and attachment. NK has determined that no further joint sessions are necessary or recommended;

9. Through these changes, the mother has been able to identify and correct the issues which concerned the Children’s Court Magistrate;

10. The child stated to the mother on 6 September 2018 that she wished to see her more and go climbing and swimming with her. She also sought more contact with her half-brother and her maternal grandmother;

11. The mother undertakes not to travel without the child in the future or leave her with any other person the child does not feel comfortable with. She cannot see why it would be necessary to travel again on any business from now on;

12. The mother acknowledges that in the past her actions have put the child at risk. She can now provide accommodation for the child as she has purchased a property;

13. The mother seeks more contact including with the child’s half-brother. She has been told that more contact is not available. The mother is concerned about the child's changing attitude with the long-term placement. She speculates that this is because of having so little contact with the child and the child being under the constant influence of the foster carers. The mother notes an apparent decrease in the child's academic performance which she regards as important;

14. The mother clearly has an arguable case. The child has had no chance to hear the mother's side of the facts or of the positive changes which have occurred. The child has not been provided with any opportunity or suitable assistance to participate in a truly informed decision making process about her long-term future;

15. There has been no indication that the child's spiritual awareness has been taken into account;

16. The child is not the main beneficiary of being held in foster care. It is the foster care system that is the main beneficiary;

17. The mother does not seek any assistance from the Department of Family and Community Services if the child is restored to her care. The child’s carers have nothing in common with the child. The child's culture, language and religion are important and must be taken into account. The mother's circumstances are “vastly different” to the circumstances at the time of the Minister's intervention;

18. If the child is restored to the mother's care it is a certainty that this will heal the wounds of their disrupted relationship before she turns 18 years of age. If the child remains in foster care until the age of 18 she will have no relationship with anyone with whom she is biologically linked;

19. The child's culture must be taken into account;

20. The background history of the mother shows that she has made remarkable advances in the security of her position. It is also important for the half-brother NW to have contact with the child, his sister;

21. It is incorrect that the mother has a lack of insight into her position with the child. The mother has learned a lot of skills through her struggles for her economic survival. The mother has positive plans for the child's future if restoration occurs. If it does not, the child will be cut off from the mother, the rest of her family, from her language and culture. The child is not expressing her true wishes but rather what she hears from others. While the mother has been heavily criticised for her past actions, no one has suggested a viable alternative having regard to her financial needs and work needs at the time.

62. The first defendant also made oral and written submissions. These, in general summary, were as follows:

1. In her affidavit, the mother identifies a number of changes in her life. These were also identified by the Children’s Court Magistrate in the court below;

2. To the extent there has been any change in relevant circumstances since the 2017 care orders, those changes are not significant. The mother’s changes in her work and no longer needing a nanny do not reveal that she has developed insight into why leaving her child with various people for extended periods was a concern. Her assertion that she has taken responsibility for the previous situation is inadequate;

3. In relation to the changes put forward by the mother, many already existed as at March 2017. These include the absence of a need to travel for work, having settled accommodation (affidavit Exhibit A Tab 3 paragraph 14L) and no longer having anything to do with PC;

4. While the mother’s improved accommodation and employment situation represent changes, they are not significant compared to the prior history from the mother. The mother has also not taken any responsibility for her past actions, as she asserts the desire to have an opportunity to explain to AB her side of the story. This is significant. In relation to desired “minimum outcomes” in the 2016 care plan (Exhibit A Tab 3 page 11), LZ has not taken responsibility for her actions in the past or undertaken a mental health assessment;

5. The mother's recent contact with the child does not reveal a close relationship between them as she asserts but instead that the child remains fearful of her and reluctant to be in her company. It is accepted that the mother has attended contact consistently;

6. Even if there has been a significant change in relevant circumstances, leave should not be granted having regard to the s 90(2A) factors. The nature of the application, being a transition into the mother's care within three months and seeking sole parental responsibility, is relevant. The fact the child is nine years old is relevant. The fact the child has been in foster care for nearly three years is relevant. The fact the child has been placed in a long-term placement is relevant. The mother does not have any reasonable prospect of successfully rescinding the 2017 care orders. The child has been with the carers for almost 3 years and is settled and does not want change. The records as to contact do not reveal a close bond between mother and child and, accordingly, the mother is not likely to be successful in having the child placed in her care;

7. As the child is nine years old some weight should be attached to her views although they would not be determinative. The child clearly states that she wants to stay with her foster carers. This was confirmed by the child to the psychologist NK. The mother's claims that the child told her that she wanted to see more of her are not supported by records of the contact. The child appeared to show some anxiety prior to contact with her mother and only tolerated the contact;

8. NK’s evidence about the need for future contact with LZ to be supervised and at AB’s discretion is significant;

9. The child is very settled and secure in her current placement and has a strong attachment to her carers. She identifies her carers as her closest relationships and sees herself as part of their family;

10. The mother has reduced parental capacity and has not demonstrated proper insight into her leaving her child with other people in 2014-16;

11. The child is highly likely to suffer psychological harm if orders were made as sought by the mother.

63. The father made oral submissions. These were, in general summary, as follows:

1. Leave should not be granted to LZ as she seeks;

2. Whilst there have been significant changes to relevant circumstances within s 90 of the Care Act, LZ does not satisfy the requirement of having an arguable case to vary or rescind the care order made in 2017;

3. NK’s views and reports should be given significant weight. She had substantial experience as a child psychologist, was the only expert to give evidence and had seen both AB and LZ on a number of occasions. She had sufficient material and contact for her views to be given weight. However, her reports had a fairly narrow focus on the relationship between mother and child and emotional issues;

4. NK accepted that the changes to LZ were significant but did not see the 3 months’ timeframe proposed by the mother as being realistic;

5. The fact LZ had gone from rental to owned premises was relevant as showing security of accommodation;

6. It was not necessary for LZ to have a mental health assessment: see Exhibit A Tab 3 page 11. No mental deficiencies in LZ had been suggested or identified by anyone;

7. He agreed with the submissions of the first and third defendants on the s 90(2A) issues. A major problem for LZ on her application was s 90(2A)(d). Her plans for the child did not include contact with the paternal grandmother which was a significant issue. AB saw the paternal grandmother in a very positive light. She had unsupervised contacts with her. The plaintiff should have plans for this to continue and it is not referred to in her affidavit;

8. The child’s wishes should be given some weight especially in the light of NK’s views;

9. In reply to LZ, PC made some further submissions. First, there needed to be proper consideration of the common cultural heritage of AB and LZ. A multi-cultural caseworker should be considered. Secondly, CROC should be taken into account. Thirdly, if leave were granted, the matter should be remitted to the Children’s Court unless there was going to be a very long delay

64. The Independent Legal Representative made both written and oral submissions which were, in general summary, as follows:

1. The Independent Legal Representative (“ILR”) does not support the leave application of the mother;

2. It is submitted that the correct decision was reached in the Children's Court by Duncombe CCM. There is no evidence offered by, or on behalf of, the mother that she has any insight whatsoever on the harm she caused to the child when she “abandoned” her. The fact the mother describes the events of the time as “an unfortunate chain of events” shows a lack of insight;

3. The applicant bears the onus of establishing a significant change to relevant circumstances;

4. The changes the mother points to are not enough. There is no guarantee the mother will not travel again. The mother has not demonstrated any insight in her role leading to the child being assumed to care in 2016 or the anxiety and abandonment issues she has caused for her daughter at the time;

5. The child has expressed for herself as late as February 2019 to NK that she wishes to remain living with her foster parents and does not want anything to change in relation to her contact with her mother. The child is happy, comfortable and stable in her foster care placement. Breaking this attachment may cause the child further attachment and abandonment issues. It is unlikely, from the mother’s comments, that the mother would have adequate skills to meet the child's emotional and psychological needs. NK’s report should be given considerable weight;

1. The evidence does not establish that the plaintiff has an arguable case. The harm caused by the mother was significant and she has failed to demonstrate any insight into either her role in causing the child harm or the child’s needs at all. She has done nothing to gain or enhance any of her parenting skills. There is a real risk that the child if restored may be abandoned and neglected all over again. As there is no significant change, her application must fail;

2. The factors in s 90(2A) do not support the plaintiff's application. The child's wishes must be given some weight in the matter. She wishes to remain in her current placement and not change her contact with her mother;

3. The placement has been for nearly three years and the child has developed a positive and significant attachment to her carers and their family. There is nothing to demonstrate that the mother now has changed and has the skills to meet the child's emotional, psychological or physical needs; and

4. The ending of the current care arrangements would be devastating for the child;

5. He otherwise adopted the submissions of the first defendant.

65. The plaintiff also relied on detailed written reply submissions. These submissions denote a rather frustrated and terse tone in the mother, LZ. Upon questioning, the plaintiff confirmed she relied on all the reply submissions. The submissions, in very general summary, were as follows:

1. There is no need for any authority as to s 90. The Care Act is clear. If the circumstances have not been considered at the original hearing they are irrelevant to the case: submissions paragraph 4;

2. The circumstances justifying removal of the child were never proved by the Minister: submissions paragraph 5;

3. The Secretary has not undertaken a proper assessment in the care plan: submissions paragraph 10;

4. The mother has addressed the issues which almost certainly will never be repeated: submissions paragraph 11;

5. AB has “been totally alienated from [the mother] by the deliberate policy of breaking bond between the child and the natural parents. No regard has been given to [the child’s] culture, language and her family. That is more like forced assimilation practiced in the period of the “stolen generation””: submissions paragraph 12;

6. CROC should be considered;

7. A problem has been that the mother has not had “a meaningful contact with [the child], frequent and for reasonable duration, unsupervised”: submissions paragraph 17;

8. There is a denial in procedural fairness in accepting the caseworkers’ account over the mother: submissions paragraphs 19-20. The supervised contact reports are “subjective and biased” and intrude on the mother and child’s privacy: submissions paragraph 21. Surveillance could occur of unsupervised contact;

9. The length of time with the carers was “worthless” as there was a different environment and time of contact. It was “disgraceful’ for the first defendant to undermine the “blood connection” between mother and child: submissions paragraph 22;

10. The mother has excellent parenting capacity;

11. No weight should be given to the Children’s Magistrates’ opinions: submissions paragraph 26;

12. Little weight should be given to NK’s reports as she was given instructions from the first defendant: submissions paragraph 34;

13. The first and second defendants have denied the child’s “cultural inheritance”; submissions paragraphs 37 and 40;

14. Mr Clack and the first defendant’s caseworkers “have no genuine concern for [the child’s] best interests”: submissions paragraph 42;

15. The mother will have no further future relationship with the father: submissions paragraph 43;

16. The child should be able to travel particularly to visit relatives in her mother’s country of birth: submissions paragraph 44;

17. The child has not had a chance to express her wishes freely but is pushed away from the mother: submissions paragraph 45;

18. The arguments of the first defendant’s representatives and the Independent Legal representative are “childish and philosophical”; submissions paragraph 59;

19. There is no risk to the child from the mother in the future: submissions paragraph 62;

20. There is no basis for the mother to have a mental health assessment: oral submissions.

Consideration

The mother

66. The mother relied on an affidavit of hers for the purposes of the appeal. She also made written and oral submissions to the court. Having observed her carefully, the court is in no doubt that the mother sincerely wants to do the best thing for the child and she regards that as a restoration of the child to her care. The court has no doubt that this is for sincere reasons and that she regards it as being in the best interests of the child to have unsupervised contact regularly with her, her half-brother and her maternal side of the family. She appears to the court to honestly believe that the circumstances have significantly changed and she is now able to provide a safe and secure environment for the child following gaining an insight into the child's needs and what occurred in the past.

67. The fact that the mother has made positive changes in her life including becoming a professional, purchasing a home, obtaining regular work and diligently pursuing contact with the child, is to her real credit. The court recognises that between 2017 and the present, the mother has made improvements in her life, which would be of benefit to the child (compared to her former situation) if the child was restored to the mother’s care.

The proceedings

68. The appeal before the court is by way of a new hearing. Fresh evidence has been prepared and relied upon for the purposes of the appeal: see s 91(2) of the Care Act. I refer to the authorities above which establish that the onus rests on the plaintiff to establish her case.

The evidence before the court

69. I have set out above in some detail the evidence which was before the court. Of significance to me was the evidence of the child psychologist, NK, who was cross-examined and whose reports were before the court. I found NK to be a measured and impressive witness. Her firm view was that the current arrangements for foster care should continue and that it was not realistic to have a restoration to the mother in three months as sought. NK was unable to give any timeframe for a restoration as she had made no assessment of the position of the plaintiff. She regarded the child as being in a safe and secure foster situation and it would be severely disruptive for her to be removed and placed with the mother. This evidence in my view is important and should be given some significant weight.

70. I saw no basis for the mother’s assertion that NK was in any way biased or that her views were based on limited information or instructions. NK appeared informed and independent to me. She had seen the mother on a number of occasions and the child recently.

Whether there has been a significant change in any relevant circumstances since the care order was made or last varied

71. An application for the rescission or variation of a care order may be made with the leave of the court: s 90(1) of the Care Act. The 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: s 90(2) of the Care Act. I have set out above the relevant legal principles to be applied. The court may only grant leave if it is satisfied that there has been a significant change in relevant circumstances. As the authorities referred to above make clear, this requires a comparison between the situation at the time when the application was heard (here March-April 2019) and the facts underlying the decision when the order was made or last varied (March 2017). The changes must be of sufficient significance to justify the consideration of an application.

72. When the final orders were made in March 2017, the child had been taken from the care of the mother and had been placed with her current foster carers. The evidence at the time showed the position to be as follows:

1. The plaintiff appeared clearly to be placing her work arrangements ahead of her care of the child;

2. The plaintiff had been leaving the child with family members for extended periods;

3. The plaintiff left the child in the care of an 18-year-old nanny while she went oversees for a period;

4. The plaintiff breached undertakings to the court by permitting the father to have care and access to the child on a non-supervised basis while she was overseas;

5. These arrangements had left the child feeling fearful, insecure and unsafe;

6. The plaintiff appeared to have little insight into the child's emotional and security needs compared to her own needs and desires particularly as to work.

73. In giving this summary, I do not doubt that the mother loved the child at all times and was seeking to do the best for the family unit in difficult financial circumstances. However, what occurred was, in my view, inexcusable, clearly against the overall interests of the child and no doubt led to the plaintiff accepting that a restoration order to her was inappropriate and that the orders that were made ultimately in March 2017 were inevitable.

74. Since that time there have been, in my view, changes in relevant circumstances within s 90(2) of the Care Act. The plaintiff:

1. Has completed a course and obtained professional registration;

2. It appears has obtained secure employment;

3. That employment has regular hours;

4. She has purchased a home which provides more security;

5. She has plans for the care of the child when she is working including, where necessary, before and after school care;

6. She has attended sessions with the psychologist NK;

7. She has gained some insight into the child's needs and her previous actions;

8. There have been a number of positive contact sessions between the plaintiff and the child.

75. In my view, however, while there have been changes in relevant circumstances, looking at the evidence as a whole, there has not been a significant change in any relevant circumstances between March 2017 and the present for the following reasons:

1. The child is in a safe, secure foster carer placement. This placement has existed for nearly three years. On the evidence, I am satisfied and find that the child is happy in this placement and regards it as safe and secure for her;

2. Whilst there has been an improvement in the relationship between the child and the mother, I do not accept, as the mother asserts, that the child wishes to leave the foster placement and go home to her. Even if this was stated by the child to the mother on one occasion, I do not believe, on the evidence, that this reflects the child's real view. The vast majority of the evidence, including the contact reports before me and the reports of NK, is to the contrary. The child has expressed a firm wish to remain in her current carer placement long term. I reject the submission of the mother that the contact reports are subjective and biased. I did not form this impression from reading them;

3. The mother proposes a three month transition period for restoration in her affidavit. This appears to be somewhat different to the orders sought in the Summons: see paragraph 3 of the plaintiff's 23 October 2018 affidavit. NK believed that this was not realistic: T28.22. Having regard to all the evidence, I accept that evidence. It is far too short a proposed transition period, even if restoration orders may otherwise have been arguable;

4. Despite the plaintiff's affidavit, I accept and find that the child continues to have anxiety and concerns in relation to her contact with her. This has improved and the plaintiff has made a real effort in this regard in the contact which has occurred. However, I am not satisfied that things have altered to such a degree that the proposed orders set out by the plaintiff in her affidavit would have any realistic possibility of being made in a considered application;

5. The plaintiff has focused on the child’s spiritual, cultural, educational and economic well-being. However, I do not believe that there has been such a significant change in the child's emotional needs and her perceptions of her relationship with the mother as is required for there to be found to be a significant change;

6. Whilst the mother has shown some insight following her consultations with NK, I do not believe that the mother has yet reached the stage where she fully understands and comprehends the damage done to the child in the past through her being away from the child for lengthy periods and leaving the child with the nanny. This will be an ongoing process for the mother;

7. The mother also, through her description of the events in 2015/2016 as an “unfortunate chain of events” (affidavit paragraph 8), has failed to understand the significance of those events in relation to the well-being of the child at the time. These events appear to have had a profound effect on the child’s view of her mother and her safety;

8. The contact notes and the reports of NK provide strong evidence that such a fundamental change as proposed is not in the best interests of the child at present;

9. For all of the above reasons, in my view although there are relevant changes, there has not been “a significant change in any relevant circumstances” to satisfy the test in s 90(2) of the Act.

The factors in section 90(2A)

76. I also take into account the factors listed in s 90(2A) of the Care Act:

1. “The nature of the application” – the application of the mother is to rescind the orders made in 2017. In the plaintiff's 2018 application she sought sole parental responsibility. In her appeal summons the plaintiff seeks orders placing the child in her sole parental responsibility, subject to the Minister retaining responsibility for the child's contact with the father and with a proposal for supervision for 12 months. As stated above, the current proposal is for a transition within three months. NK expressed the opinion that such a transition was unrealistic;

2. “The age of the child or young person” – the child is nine years of age and although her views are not determinative, she clearly wishes, it appears on the balance of the evidence, to stay with her current foster parents. I am satisfied this view has not been created by the caseworkers or the foster carers;

3. “The length of time for which the child or young person has been in the care of the present carer” – the child has been in the care of her present foster carers for nearly 3 years which is significant and has provided a happy and secure environment for the child;

4. “The plans for the child” – the first defendant's plans are described in the materials before the court and it is intended that the child remain in the parental responsibility of the Minister until 18 years of age and for her current placement with her foster carers to be a long term one. The mother’s plans have been indicated above and include a three month transition and then the child living with the mother in her new home in Sydney. To the mother's credit, she plans for the child to remain at the same school and to have contact when the child wishes with her foster siblings and her foster carers. She has not referred to contact with her paternal grandmother which appears to be important to the child;

5. “Whether the applicant has an arguable case” – I will consider this further below;

6. Matters concerning the care and protection of the child or young person identified in relevant reports – in Exhibit A behind Tab 6 is a s 82 report prepared following the March 2017 orders. This report should be reviewed in detail. However, it emphasised that the child had been successfully attending her local public school, was reaching her educational milestones and that no issues of concern regarding her behaviour had been identified. It was stated that the child continued to settle and thrive in the long-term foster care placement. The child was described as being “an active member of the family in her placement with her carers”. It was also stated that the child appeared to be settled and was adapting positively. A remarkable improvement in the child's educational position was noted. This included making friends. Although efforts had been made for the child to embrace her culture, she was reported as not embracing her culture and often ignored it or changed the subject when it was discussed.

77. It is noted that there was successful contact between the child and her mother as well as a strong bond with her paternal grandmother. A contact between the child and her maternal grandfather was not successful as the child was fearful that he was going to take her back to China. Following the visit, the child had to seek psychological support in order to assist her in relation to the contact. It was noted that there would be future supervised sessions between the child and the mother. The mother needs to accept that the child is anxious in relation to contact with people she does not know.

Whether the applicant has an arguable case

78. In my view, the plaintiff does not currently have an arguable case within s 90(2A)(e) of the Care Act. Whilst there is a case that is capable of being argued, it is not in my view a case that has some prospect of success on the current evidence: see The Matter of Campbell, above, at [50].

79. The child has been with her foster carers for almost three years and appears on the balance of the evidence to be settled and happy. Despite the evidence of the plaintiff as to the child wanting to “come home”, the overwhelming evidence is to the contrary. Whilst the bond between mother and child has improved, it has not developed to the stage that orders restoring the child to the mother are realistically possible. The overwhelming evidence is that the child is very content in her current situation. Despite the suggestion of the mother to the contrary, I do not believe that this is through any form of suggestion. The evidence of NK is in my view strongly supportive of the current situation. I also accept that the mother does not fully appreciate the damage she has done to the child in the past. I do not exclude the possibility that the situation may improve as to the mother/child relationship in the future.

The section 90(6) matters

80. I take into account the matters set out in s 90(6): see The Matter of Campbell, above, at [39] and JL, above, at [185].

81. I have already considered the age of the child, above. The wishes of the child or young person are to be taken into account. As the child is only nine, this is not determinative. However, I am satisfied on the balance of the evidence that the child wishes to stay with her current foster carers and does not wish the situation to be changed. See for example NK’s February 2019 report. I take into account the fact that the child has been in the care of her present carers for nearly three years which is a significant period having regard to the age of the child. The evidence satisfies me that the child is attached to her present foster carers. Whilst she already recognises and is close to the mother, the evidence establishes to my satisfaction that she still has real reservations about the mother and is much happier in her present care arrangements. Hopefully, her relationship with her mother will continue to improve. While I accept that the mother has the financial capacity to provide an adequate standard of care for the child and earnestly wishes to provide the child with a good home, I am not yet satisfied that the mother has the capacity by herself to deal with the child’s existing emotional and development needs and concerns. Having regard to the happy and settled nature of the foster carer placement, in my view there is a real risk that the child will suffer psychological harm if the orders are made as sought by the mother. I do not believe that risk is “highly likely” as the first defendant suggests, but the degree of the child’s security and happiness in her current situation is significant.

The discretion

82. Even if I am wrong in my analysis that there has not been “a significant change in any relevant circumstances” within s 90(2) above, I would still not have made the orders as sought by the plaintiff in the exercise of my discretion under the section. In considering the discretion I take into account the provisions of CROC and the child’s cultural background. The child currently seems to be in a happy, secure and content situation with her foster carers. While the relationship with the mother has improved with the contact visits and the mother has made admirable advances in her position, I am not satisfied, having regard to the child's current circumstances and the success of her current placement and her progress at school, that any application would have arguable prospects of success. In coming to this conclusion I also take into account the evidence of NK that a three month restoration period is not realistic and the observations of the caseworker in the contact reports which I accept as accurate. The mother should continue with her contact visits in order to build on her current relationship with her daughter AB.

83. There are a number of submissions of the mother which I should specifically deal with. I accept that some of these may be informed by the mother’s frustration and annoyance at the current position and her desire to do the best by her daughter:

1. I do not accept that what has occurred is “more like forced assimilation”. The child needs to be encouraged as to cultural matters but there is a limit as to what can be done if the child does not wish to become involved in language and cultural aspects;

2. I reject the suggestion there has been a deliberate policy of breaking the bond between the child and her parents except in relation to the relevant matters under the Act where the Minister acted in 2011 and 2016;

3. I reject the suggestion there has been any denial of procedural fairness in relation to the contact reports. The purpose of the contact reports is to record the independent observations of the caseworker. The mother has the benefit of the current proceedings to state her case and be heard;

4. As stated above, the contact reports do not appear to be biased to me. They record matters which are also positive in relation to the mother, including her obvious affection and concern for the child;

5. I have not formed the view that any conduct of the first defendant could accurately be described as “disgraceful” in undermining what the plaintiff calls the “blood connection’ between mother and child: reply submissions paragraph 22;

6. I specifically reject the suggestion that Mr Clack and the FACS caseworkers have no genuine concern for the child’s best interests. Different views can be held legitimately by the mother and others without there being any proper suggestion that concerns are not genuine. Mr Clack appeared at all times to me to be properly fulfilling his duties.

84. For all of the above reasons, in my view the appeal should be dismissed.

85. Accordingly, I make the following orders:

1. The Summons filed 11 September 2018 is dismissed.

2. The appeal is dismissed.

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Amendments

09 May 2019 - In relation to the Publication Restriction on page 2 and paragraph 6 of the judgment, on 9 May 2019 the court made a new publication suppression order to the effect of that set out on page 2.

Decision last updated: 09 May 2019