M v Department of Communities and Justice; M v Family and Community Services

[2023] NSWDC 485

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

M v Department of Communities and Justice; M v Family and Community Services [2023] NSWDC 485

Hearing dates:

23 October 2023

Date of orders:

23 October 2023

Decision date:

23 October 2023

Jurisdiction:

Civil

Before:

Acting Judge I Coleman SC

Decision:

(1) The summons for leave to appeal filed 20 August 2023, and amended summons for leave to appeal filed 18 August 2023, are dismissed.

Catchwords:

CARE APPEAL – application to extend time to appeal – where plaintiff seeks extension of time to appeal against orders of the Children’s Court pursuant to ss 90 and 90A of the Children and Young Persons (Care and Protection) Act 1998 (NSW) – whether plaintiff’s delay in appealing inordinate – whether plaintiff’s explanation for delay in appealing adequate – whether plaintiff has fairly arguable appeal – whether extending time to appeal prejudicial to child the subject of proceedings or otherwise contrary to child’s best interests

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 9, 10, 10A, 90, 90A and 99C

Interpretation Act 1987 (NSW), s 9

Uniform Civil Procedure Rules 2005 (NSW), rr 50.1 and 50.3

Cases Cited:

Blackmore v Browne; Kara Kar Holdings Pty Ltd v Blackmore [2011] NSWCA 114

Gallo v Dawson (1990) 64 ALJR 458; (1990) 93 ALR 479; [1990] HCA 30

In the matter of Campbell [2011] NSWSC 761

J v C (an infant) [1969] UKHL 4; [1969] 1 All ER 788; [1969] 2 WLR 540; [1970] AC 668

JE v Secretary, Department of Family and Community Services [2019] NSWCA 162

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40

Re Felicity; FM v Secretary, Department of Family and Community Services (No 3) [2014] NSWCA 226

Re M; Application of YA [2014] NSWSC 1736

Tomko v Palasty (No. 2) [2007] NSWCA 369

Category:

Principal judgment

Parties:

Plaintiff: M
First Defendant in 2023/207227: Department of Communities and Justice
First Defendant in 2023/207267: Family and Community Services
Second Defendant: Karen Peters, Independent Children’s Lawyer

Representation:

Plaintiff: Self-represented

Counsel:
First Defendant in each matter: Ms J Wong (solicitor)
Second Defendant: Ms S Leis

Solicitors:
First Defendant: Crown Solicitor’s Office

File Number(s):

2023/207227; 2023/207267

Publication restriction:

Non-publication order made pursuant to s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). The pseudonyms “M” and “I” have been used in place of the names of the mother and the child respectively throughout this judgment.

Judgment

1. By Amended Summons filed 18 August 2023, the plaintiff sought orders pursuant to r 50.1(c) Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), extending the time in which to appeal against a decision made by the Children’s Court of 22 July 2022 in proceedings pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“Care Act”), the reasons for which were given on 19 July 2022. The time in which the plaintiff was entitled to file a summons appealing against the decision of the Children’s Court was a period of 28 days from the material date pursuant to r 50.3(1)(a). As an appeal is against orders rather than the reasons for orders, time to appeal ran from the date on which the Children’s Court Magistrate determined the proceedings. The plaintiff filed her summons commencing an appeal on 20 June 2023, some ten months after the time for appealing as of right had expired.

2. The Amended Summons commencing an appeal filed 18 August 2023 addressed the requirement of r 50.3(2), which is that a prayer for an extension of time must be included in a summons commencing an appeal out of time.

3. The defendants to the appeal, variously recorded as first and second defendants, are the Secretary, Department of Communities and Justice, herein after referred to as the Secretary, and the independent child’s lawyer, being the legal representative of the child the subject of these proceedings.

4. As is not in doubt, the plaintiff seeks an extension of time to commence proceedings pursuant to the provisions the Care Act. The proceedings have been heard in closed court, consistently with the requirements of the Care Act, which prohibits disclosure of the identity of the child who is the subject of the proceedings. The plaintiff’s identity, and thus that of the child, has been preserved by anonymising each of their names.

5. The summons arises out of a decision of the Children’s Court, as I have recorded. The starting point for present purposes is the decision and the reasons for it of the Children’s Court Magistrate. The transcript of those reasons is found at Court Book 693 to 704, behind Tab 23.

Background

6. In the circumstances of this application, which is an application for extension of time to appeal under s 90, unlike what might be the case if this were an application for extension of time to appeal against an original order for care and protection, the reasons of the Children’s Court assume particular significance. In the Court below, the plaintiff sought relief pursuant to two sections of the Care Act, and relief on another asserted jurisdictional foundation. The last mentioned claim was held by the Children’s Court Magistrate to fall beyond the jurisdictional competence of the Children’s Court. The Court does not understand that the plaintiff seeks an extension of time to appeal against that decision.

7. The relief sought by the plaintiff in the Court below was pursuant to s 90 of the Care Act, which is concerned with recission and variation of care orders. Necessarily, reference will be made to specific provisions of that section later in these reasons. The plaintiff also seeks an extension of time to appeal against the Children’s Court’s refusal to disturb orders previously made pursuant to the provisions of s 90A of the Care Act, which is concerned with prohibition orders.

8. The reasons for the decision of the Children’s Court Magistrate commenced (Court Book 695), with the consideration of the plaintiff’s application for relief with respect to the existing s 90A order, the effect of which was, broadly speaking, to prohibit the plaintiff from contacting or approaching the carers of the child I. Before the Children’s Court was an affidavit filed in the Secretary’s case by Nacre Fury of 14 July 2022, addressing the s 90A issue. In that affidavit, the reported concerns of the current carers for the child, I, were detailed (Court Book 696). There was also included evidence from a former carer for the child, I, expressing concerns not dissimilar to those expressed by the child’s current carers.

9. The Children’s Court Magistrate found, for reasons which were later detailed, that the plaintiff’s application to vary or set aside the s 90A prohibition order should be dismissed. Her Honour then dealt with the second issue, which was the plaintiff’s application to set aside expert opinion evidence of Dr Kate Renshall, dated 9 August 2019, which had been before the Court in proceedings which were determined by Judge Robison late in 2019. That report is found behind Court Book Tab 15, pages 477 – 515.

10. Dr Renshall’s report, it is clear from his Honour’s reasons, and those of the Children’s Court Magistrate of 19 July 2022, assumed considerable significance in the determination of the proceedings adversely to the plaintiff by Judge Robison in late 2019, and the Children’s Court Magistrate on 22 July 2022.

11. The Children’s Court Magistrate then turned (Court Book 698) to consider the application of the plaintiff for relief pursuant to s 90 of the Care Act. The Magistrate identified that the child, I, was at that time nine years, 11 months and 24 days of age. The child is now 11 years and some months of age.

12. The Court below referred to a final order of 18 October 2018, assigning parental responsibility for the child to the Minister, until the child attains 18 years of age. Care of the child has been case managed by Anglicare since 27 August 2018. The Children’s Court Magistrate found the arrangements to be a “stable placement in which [the child] is happy and thriving, and wishes to stay in accordance with the views and wishes statement that the Court has received in this matter, and she has been with that family since 20 August 2018” – a period now of five years and two months.

13. Since being taken into care of 22 February 2017, the child has not been in the care of the plaintiff for a period which now exceeds six and a half years. The Children’s Court Magistrate recorded the extensive history of proceedings post I being taken into care in early 2017. There is no suggestion that such record is inaccurate or incomplete.

14. In the outline of submissions on behalf of the Secretary in this Court, there is a concise summary of the procedural history with respect to I (paragraphs 10 to 35). Each of those entries is footnoted with a source document. The Court is satisfied that the summary of the history of proceedings there recorded is accurate, as was that of the Children’s Court Magistrate, in the reasons of 19 July 2022. The essential difference between the two accounts is that the outline on behalf of the Secretary in this Court refers, in somewhat more detail, to particular dates and events than did her Honour.

15. The Children’s Court Magistrate referred to a document before the Court which expressed the child’s views. Given that the determination which this Court must make is on the evidence as it is today, and as there is evidence about that and other relevant matters of more recent times, I will refer to the later evidence in the course of these reasons. The evidence is found in the affidavit upon which the Secretary moves this Court, that being of Nacre Fury, filed 22 September 2022, and the exhibits to that affidavit, paragraph 44, exhibit NF1, in particular pages 49 to 52, and paragraph 45, pages 53 to 55 of exhibit NF1, which is found in Court Book, Volume 3, Tab 31, pages 945 and following.

16. The Children’s Court Magistrate recorded, accurately, that the s 90 application with which the Court was concerned in July 2022 was the second s 90 application by the plaintiff, the first having been dismissed by a Magistrate on 22 May 2020. The application which the Court determined on 19 July 2022 was filed on or about 26 November 2021. The Children’s Court Magistrate identified the grounds upon which the plaintiff moved the Court in that application, and summarised those as being that the Secretary did not have the correct information at the time the orders were made to have I put into the care of the Minister, and that it was based on “poor case management.”

17. The plaintiff further asserted that full care to the Minister was no longer needed, and that I should be returned to her care, as the plaintiff now has working arrangements, has her own home, which she is renting, has been in that accommodation for twelve months, is a “functioning adult” with no substance or other relevant issues, no criminal record, and had a “right to have my child returned.” The plaintiff asserted, in the Children’s Court, and re-asserted in this Court, that she had met all the requirements suggested by Dr Renshall in the 2019 report which had assumed determinative significance before Judge Robison.

18. The Children’s Court Magistrate recorded the basis on which the plaintiff further asserted that her daughter should be returned to her care, pursuant to s 90 of the Care Act, and referred to the evidence (Court Book page 696, point 8 and following) with respect to the child I’s particular needs, and the s 82 reports, which had been filed in the proceedings on 19 February 2019 and 17 September 2019.

19. Her Honour engaged with the plaintiff’s asserted “mental health concerns”. As has been submitted by the Secretary in these proceedings, whilst Dr Renshall expressed concerns about aspects of the plaintiff’s personality, and “provisional diagnoses of Post Traumatic Stress Disorder and Narcissistic Personality traits” (Report, paragraph 77, Court Book, page 508), neither Dr Renshall nor any other competent expert has asserted that the plaintiff suffers from a psychiatric condition. Her Honour referred to an ongoing concern with respect to the “historical mental health” of the plaintiff insofar as it affected her parenting capacity. That concern was supported by Dr Renshall’s evidence.

20. The Children’s Court Magistrate referred to passages of the reasons in the second decision of Judge Robison in 2019, the effect of which was that His Honour, in significant reliance upon the expert opinion evidence of Dr Renshall of 9 August 2019, came to a different view with respect to whether restoration of I to the plaintiff was realistically likely, to the preliminary view, which His Honour formed earlier that year, prior to the advent of Dr Renshall’s report. The Children’s Court Magistrate recorded a number of observations which emerged from the report (Court Book page 701). Her Honour referred to Dr Renshall’s opinion that the plaintiff was “documented to present with various abnormalities suggestive of a psychotic disorder. She reported to present with delusions including both persecutory and grandiose and disorganised thinking.”

21. The Children’s Court Magistrate recorded that it was Dr Renshall’s view, however, “that the beliefs and her disorganisation were not sufficiently severe to warrant a diagnosis of psychosis.” Her Honour recorded, again by reference to the evidence of Dr Renshall, that the lack clarity and the plaintiff’s descriptions provided an incoherent and thus unreliable narrative of her mental health history. For those reasons and the others which were recorded subsequently, the Children’s Court found that the plaintiff was “an unreliable historian”.

22. Although there is no evidence to the contrary, as submitted by each the Secretary and counsel for I, the plaintiff has not presented any medical or other reliable evidence before this Court to suggest that the finding of the Magistrate in the court below was wrong or other than reasonably open.

23. The Children’s Court Magistrate accepted (Court Book 702) that the plaintiff had maintained employment, but that it had not been entirely or necessarily stable. It was further found that the plaintiff had maintained accommodation, though it was not entirely stable or consistent. The evidence before this Court with respect to the plaintiff’s current personal circumstances is vague.

24. The court below referred to domestic violence. Judge Robison made some comments about the plaintiff’s apparent reliance upon domestic violence which last occurred in 2017 in his reasons in 2019. Nothing this Court records in this context is in any way intended to diminish or dismiss the impact which domestic violence may have had on the plaintiff. The fact is, however, that, as the plaintiff has confirmed on a number of occasions during the course of her submissions before the Court today, the last occasion involving domestic violence perpetrated against her was in 2017. It is not in dispute that the domestic violence, which the plaintiff suffered in 2017, could have an enduring impact on her to this day, but the Court records that in terms of medical, circumstantial, or other evidence, put bluntly, the evidentiary trail with respect to domestic violence or its current impact on the plaintiff goes cold in 2017, well prior to the hearing in the Children’s Court. Nothing to which the plaintiff has referred this Court suggests that anything which could have been raised by her with respect to that issue before the Magistrate in the court below was not or could not have been raised then. The plaintiff does not contend that her current parenting capacity is adversely impacted by past experiences of domestic violence in any event.

25. Counsel for the Secretary submitted that, at the latest, by 13 May 2022, the plaintiff was in possession of the material (COPS entries made in 2017) with respect to domestic violence in 2017 upon which she now relies. It is not in doubt that the COPS record is the only contemporaneous or independent evidence with respect to that issue. It is difficult to accept that the plaintiff could not have accessed that evidence well prior to May 2022, if necessary by issuing a subpoena for its production. Even if that were not so, it would change nothing.

26. Having reviewed the evidence in the manner in which I briefly have outlined, the Children’s Court Magistrate considered the provisions of s 90 of the Care Act, and recorded that the child, who was then almost 10 years of age, had expressed views about her present circumstances through her legal representative. The Magistrate placed “significant weight” on those wishes. The evidence justified doing so.

27. Her Honour then considered, pursuant to s 10 of the Care Act the permanent placement principles, and in particular the provisions of s 10A (1), which provide that:

“permanent placement means a long-term placement following the removal of a child or young person from the care of a parent or parents pursuant to this Act that provides a safe, nurturing, stable and secure environment for the child or young person.”

28. Before the Children’s Court, there was insufficient evidence to persuade the Court that anything relating to the care arrangements for the child which were then in place offended those provisions.

29. The Court below held (Court Book 702) that the plaintiff had not established a significant change in any relevant circumstance since the care order was made, and that, as such, it was unnecessary to further consider the matters articulated in s 90 of the Care Act, or the additional considerations which s 90(2C) of the Care Act articulates.

30. The Court below referred to the decision in Re Felicity; FM v Secretary, Department of Family and Community Services (No 3) [2014] NSWCA 226, and to the judgment of Basten JA, with whom Ward JA (as Ward P then was) and Emmet AJA agreed, that the phrase, “relevant circumstances” was not restricted to circumstances which form the basis for the making of the care order at the time it was made, but rather refer to whether fresh circumstances have arisen which make an extant order no longer appropriate in order to provide the care and protection necessary for the safety, wellbeing and welfare of the child the subject of the order.

31. The Court also referred to the comments of Slattery J in In the matter of Campbell [2011] NSWSC 761, in which his Honour recorded that the change in circumstances must appear to be of sufficient significance to justify the Court’s consideration of an application for rescission or variation of a care order. The Court summarised its reasons presently under consideration by reiterating that it had not found a significant change in the relevant circumstances so as to justify consideration of the primary, or additional, considerations, articulated in ss 90(2B) and 90(2C) of the Care Act.

32. The Children’s Court decision was significantly influenced by the Court’s finding that it was a “persistent and concerning feature” of the case that although the plaintiff “has been presented with the tools of guidance needed for her to recuperate or rehabilitate her mental health, there is no evidence of those steps having been taken by [the plaintiff] in this case to my satisfaction on the balance of probabilities such as to warrant the grant of leave in relation to substantive care matter.” These findings were made by reference to the concerns recorded in the report of Dr Renshall.

33. With respect to the application pursuant to s 90A of the Care Act to vary or rescind the prohibition order, the Court recorded that, having regard to the principles to which it had earlier referred, the “significant change necessary”, which also related to the mental health of the plaintiff, went to “the heart of the safety or of the carers and their own child, their own ongoing concerns in view of [the plaintiff]’s previous allegations or threats to them, as referred to and outlined in the additional material,” upon which the Secretary relied. Essentially in reliance upon its findings with respect to the s 90 application, the Court was accordingly not satisfied that the plaintiff had discharged her onus of proof on the balance of probabilities. This Court has not been referred to anything which suggests that the Court’s finding was wrong.

The plaintiff’s case in this Court

34. The plaintiff swore a series of affidavits in support of her summons. The first was an affidavit of 20 June 2023 in which the plaintiff stated, accurately, that Dr Renshall’s report was now four years old, and that the report was done “during domestic violence proceedings, and breaches from the perpetrator”. Whether the latter assertion is correct is less than clear. The report of Dr Renshall was undoubtedly influential in the determination of the proceedings by Judge Robison, and in the determination of the Children’s Court proceedings almost three years later.

35. The plaintiff referred to two psychiatric reports from Dr Nagesh, dated 19 September 2019, and 20 November 2020, the latter stating that the plaintiff did not have a “mental illness”. That is the last medical evidence which the plaintiff has put before the Court. There is no evidence from the other psychiatrist, to whom the plaintiff referred, Dr Augustus Pusic, a very experienced and well‑regarded psychiatrist.

36. The plaintiff says that she continues to see Dr Pusic. There is no report from Dr Pusic. Beyond recording that the plaintiff says, and there is no reason to doubt what the plaintiff says in this regard, that she continues to see Dr Pusic, the Court cannot speculate about what might be said in evidence which is not before it. If Dr Pusic, as a consultant psychiatrist, considers it necessary or beneficial for the plaintiff to continue to see him, it can reasonably be inferred that Dr Pusic’s opinion is that, in some way, doing so is necessary or desirable having regard to his view of the plaintiff’s mental health or well-being.

37. To the extent that the plaintiff may have commenced to consult Dr Pusic since the decision of the Children’s Court in July last year, that might, in theory, be new or fresh evidence, but in the absence of evidence from Dr Pusic, that cannot advance the present application.

38. Consistent with the observations of the Children’s Court in its decision in July 2022, in her first affidavit the plaintiff (paragraphs 6 and 7), set out, but did not particularise in any way, the matters there identified. A recurring theme, unsupported by any evidence in the plaintiff’s case, finds expression at paragraphs 8 and 9 of her affidavit, which assert that returning I to the plaintiff’s care is in the best interests of her development and mental health.

39. As will be seen, the evidence before the Court, in particular the evidence found at Court Book 3, behind tab 31, at pp 945 to 948 and 949 to 951 with annexures thereafter, not only does not advance the plaintiff’s contention that returning I to her would be in the best interests of her development and health, but suggests the contrary.

40. In her second affidavit of 18 August 2023, the plaintiff referred extensively to the New South Wales Police COPS reports with respect to domestic violence in 2017. The relevant COPS entries are found as Annexure “B” to the plaintiff’s affidavit filed on 28 September 2023. With respect to the plaintiff, who courteously and earnestly advocated her case before the Court today, there is simply no demonstrated or apparent nexus between the 2017 COPS entries with respect to domestic violence and the proceedings which the Children’s Court Magistrate determined in July last year and any further s 90 application, whether that be by way of appeal, as the applicant seeks, or pursuant to any further fresh s 90 application which the applicant may make in reliance upon those entries. If the plaintiff has recovered from the effects of such violence, although inexcusable, the violence itself would not now advance her claim. If the plaintiff has not recovered, and her parenting capacity is adversely impacted by it, through no fault of hers, that may render the plaintiff’s claim more problematic.

41. As counsel for the Secretary made clear, and without in any way encouraging the plaintiff to do so, because on the evidence before this Court, such encouragement would be unfounded, refusal of her application for an extension of time to appeal does not preclude the plaintiff from again seeking relief pursuant to s 90 of the Care Act.

42. In her affidavit of 12 September 2023, the plaintiff made a number of allegations which were unsupported by any evidence. The first of those allegations related to I’s asserted level of educational achievement and the asserted cause for it, which was, that I “is missing her mum”.

43. A series of other unsubstantiated assertions were also made. Again, the plaintiff reiterated how she asserted that she could provide adequately for I in terms of accommodation, schooling and financial matters and do so better than the current carers are asserted to be doing. In that affidavit the plaintiff referred, if I am interpreting it correctly, to her consultations with Dr Pusic with respect to “my sexual assault” with an entity referred to as Victim Services. The plaintiff asserted:

“The removal of my child is an extension of the domestic violence, and the case has finished. There is no evidence. Under s 9 of any party, or indeed any person, who has a sufficient interest in the welfare of the child, can bring an application to vary or rescind the final order of the Children’s Court if there is a significant change in any relevant circumstance. As per, the incident happened in 2017. It’s 2023. That was a historical event.”

44. The plaintiff appears to suggest, although, clearly, she could have raised it in the proceedings in the Children’s Court which concluded in July 2022, that fundamental to the decision to take I into care, and to resist her attempts for I to be restored to her care, was a series of erroneous findings with respect to domestic violence made by the courts which were only revealed to have been erroneous when the 2017 COPS entries emerged in 2022. The plaintiff appears to suggest that the Court’s rejection of her claims with respect to domestic violence adversely influenced their findings about her psychological health and wellbeing. The basis of that contention has not been identified.

45. Even if that were so, and the Court is not persuaded that it was or is, that would not, on the basis of anything asserted by the plaintiff, advance the present application. The plaintiff herself suggests that the 2017 “incident” is now an “historical event”. Why the child was taken into care more than six years ago could assume little, if any, significance now.

46. A report in 2014 with respect to the absence of identified assessment of risk to I in the plaintiff’s care nine years earlier, and several court hearings later, also does not advance the plaintiff’s present application.

47. In her affidavit of 12 September 2023, the plaintiff engaged with, and disputed, a number of matters raised in the affidavit of Nacre Fury, to which reference will shortly be made. It is not altogether easy to follow in that affidavit what is actually advanced as evidence from the plaintiff, as opposed to reciting extracts from decisions of courts. Ultimately, the evidence consists of, in the main, criticisms of the evidence of the Secretary, selectively referring to evidence that was assertedly “not procedurally fair”, and under the heading “Consideration of the Documentary Evidence”, revisiting again in considerable detail the 2017 COPS entries with respect to domestic violence. That topic is developed later in the affidavit from about p 15 and following.

48. As the affidavit progresses, it is not altogether easy to follow what is in effect the plaintiff speaking, as opposed to what judges have said in extracts from other cases. The affidavit concluded with the asserted injustice of the s 90 order by virtue of what was recorded in the COPS entry of 1 August 2017, which is reproduced at p 20 of the affidavit. Later in the affidavit there are other copies of the COPS entry of 1 August and earlier.

The defendant’s case

49. The Secretary’s evidence is contained in the affidavit of Nacre Fury of 22 September 2023. As recorded earlier, it sets out a concise and, the Court is satisfied, accurate summary of significant dates and events, particularly with respect to the history of the care litigation.

50. As will be seen when the Court considers the impact of the evidence and submissions, an important matter for consideration, in the context of whether the plaintiff has a fairly arguable case on appeal, is whether the best interests of I would be likely to be served by the Court revisiting the current arrangements for I’s care pursuant to s 90. The best evidence of I’s welfare is clearly the most recent.

51. At Court Book 945 and following, the case review record of 16 November 2022 is instructive. Significantly, the plaintiff was an attendee at that case review meeting. There is no suggestion by the plaintiff that the case review record of 16 November 2022 is inaccurate in any material respect. The report contains numerous references to the plaintiff raising matters, which, with respect to her, appear to have been of questionable relevance or appropriateness in the context in which they were raised. An example of that is the plaintiff advising early in the meeting that, “she wanted to discuss the formal complaint she had made”. There are a number of other matters, which are readily apparent in the report, where, with respect to the plaintiff, having regard to the nature of this meeting and the persons in attendance – case managers, senior care practitioners, family kin support practitioners, and carers – the fact that the plaintiff found it necessary to raise the matters she raised gives rise to some concerns about her insightfulness, and ability to put her child’s interests above her own.

52. Those concerns are not allayed by the absence of any medical evidence post November 2020 from anyone, and more significantly the absence of any evidence from Dr Pusic. The plaintiff appeared to be under the misapprehension that, in some way, it was the responsibility of the Secretary to procure evidence from Dr Pusic. The Secretary has endeavoured to do that with a subpoena, that being the only way the Court understands that the Secretary could access any information or evidence from Dr Pusic. It is self-evidently apparent that the plaintiff was under no such constraint. She could have obtained a report or reports from Dr Pusic. Why she did not has not been adequately explained.

53. There are a number of other statements by the plaintiff during the case review meeting, which the Court, as a matter of sensitivity to the plaintiff, does not specifically read onto the record. In the notes of the case management meeting those matters are quite clear, and are apparent from the terms of the subject matter and the context in which the plaintiff raised these matters, in the way she did. Those matters do nothing to allay the concerns which the Children’s Court Magistrate recorded in her Honour’s judgment. There are, with respect to the plaintiff, recurring themes in what she raised during that meeting and before this Court. The first is the plaintiff’s implacable and objectively unsupported belief that I being restored to her care would be in I’s best interests. The plaintiff undoubtedly genuinely believes that what she seeks is in the best interests, but there is a conflation of the plaintiff’s best interests and the child’s asserted best interests in the plaintiff’s statements.

54. The minutes of the meeting are impressive in terms of the scope of topics relevant to the welfare of I, which were traversed, and the candid way in which they were. It is to be remembered that this was a meeting attended by the plaintiff and the carers. The minutes do not suggest that the carers were other than frank and open, and appear to have readily acknowledged the child’s difficulties. That has significance in terms of any extension of time to appeal the s 90 decision, because it is not insignificant that experienced long-term carers for I are having the issues which were recorded during this meeting. In the absence of a great deal more evidence from others qualified to give it, and there is none, there is no rational basis for assuming, much less finding, that the plaintiff might be able to do better in relation to the difficult issues in parenting I, which the carers have identified, than they are doing. It is also not insignificant that, appropriately, the carers have significant professional assistance and guidance in raising I. Whether the plaintiff would accept such assistance, or recognise the need to do so is unclear.

55. Some of the statements of the plaintiff as recorded are concerning. An example of that is the plaintiff’s apparently misguided suggestion that, in some way, the carers benefited financially from what they were doing as “employees”, when, as the record makes clear, they are volunteers, who are paid an allowance to do what few people in the community would attempt to do, much less do in the way in which the evidence suggests that these carers look after this child. The lack of insight in even thinking that, much less raising it, is concerning. The family contact discussion also raises other concerns in terms of either the plaintiff’s priorities or her ability to implement appropriate priorities with respect to contact with I.

56. The documents found at Court Book 949 and following are also significant. They record (page 949) a targeted permanency review form, which engages specifically with the issue of Aboriginality. It records, identified in “child’s story” as “not Aboriginal or Torres Strait Islander,” and that there may be possible Aboriginal heritage on the maternal grandfather’s side, which was currently being explored.

57. The genesis of that inquiry seems to be a phone call from the plaintiff, on or about 4 July 2022, re: cultural heritage. The Court does not recall any specific evidence or submissions about this, but it is difficult to see, having regard to the content of this document, how this enquiry could have come from anyone but the plaintiff. An important point for present purposes, is that, as the document records, particularly at page 950, the Secretary and Anglicare have responded appropriately, and in a timely way, to this enquiry. The documentation attached also makes clear that the Secretary will, if there is a basis for doing so, clearly follow through on I’s right to know and experience her indigenous culture and heritage.

58. When the plaintiff first formed the view which she apparently formed with respect to I’s possible Aboriginality is less than clear. Not insignificantly, for present purposes, the plaintiff does not appear to place reliance upon that as new evidence, or a matter which should or could advance her present application to extend time to appeal. Whatever its significance, the applicant apparently formed the view, if it is her view, on or about 4 July. That is some weeks prior to the decision of the Children’s Court on 22 July 2022.

Consideration

59. The submissions on behalf of the Secretary identified the relevant authorities. The principles governing their present application are not in doubt, and do not require more than brief restating.

60. Rule 50.3(1)(c) UCPR refers to “such further time as the higher court ‘may’ allow.” Consistent with the principles of statutory interpretation and s 9 of the Interpretation Act 1987 (NSW), in the absence of a clear statutory intention to the contrary, the word “may” implies the exercise of discretion by a Court exercising a statutory power or function.

61. In JE v Secretary, Department of Family and Community Services [2019] NSWCA 162, the Court of Appeal confirmed the earlier decision of Tomko v Palasty (No. 2) [2007] NSWCA 369, from which emerged the four recognised factors which are relevant to the exercise of discretion to extend time for an appeal.

62. The first relevant factor is the length of the plaintiff’s delay. The delay in this case is ten months. Beyond recording that it is not inordinate, further consideration of the magnitude of the delay would be unhelpful. It was sensibly acknowledged by counsel for the parties resisting the plaintiff’s application that, ultimately, the plaintiff’s delay was not so lengthy as to be fatal to the success of her application to extend time if, on other grounds, the Court was moved to exercise the discretion to extend time to appeal.

63. The second relevant factor is the explanation for the delay in filing. With respect to the plaintiff, her explanation for the delay in filing is unclear and inadequate. The Court does not dispute that, as with most, if not all, disappointed litigants, particularly in cases such as the present involving emotional family issues, the plaintiff was likely to have been distressed by her absence of success in the lower Court. That said, in the absence of medical or other evidence establishing that in some way, as a result of such matters, the plaintiff was frozen or otherwise unable to do anything to prosecute her appeal in a timely way, that does not materially assist.

64. Taking the most benign view of it, and consistent with McHugh J’s observations in Gallo v Dawson (1990) 64 ALJR 458; (1990) 93 ALR 479; [1990] HCA 30, if the plaintiff established that she had a fairly arguable appeal, and if the Court did not accept that extending time was likely to cause prejudice to the respondent, which in reality, is prejudice to the child, the Court would not withhold relief because the plaintiff has not adequately explained her delay in appealing.

65. The two critical factors in this case, as the submissions of both counsel for the Secretary and the child confirm, are whether granting leave would occasion prejudice to the child, and whether the plaintiff has a fairly arguable appeal. Without questioning what the Court of Appeal has clearly said in the cases referred to earlier, it is not unusual in applications for leave to extend time to appeal, to first consider the likely merits of the proposed appeal on the basis that, unless there is a fairly arguable appeal, there may be no occasion to consider prejudice to the defendant. It is convenient, for reasons which will emerge, to approach these factors in this order. The outcome will not differ as a result.

66. Not insignificantly, as counsel for the Secretary reminded the Court, the present application is unlike an application to extend time to appeal against an order for care and protection made after the hearing of a care application. If leave to appeal such a decision is granted, the appeal proceeds as a hearing de novo, in which the Secretary must prove each and every element of its case before a care order can be made. The plaintiff seeks leave to appeal against a refusal of leave under s 90 of the Care Act to make an application to rescind or vary care orders, and to set aside prohibition orders made pursuant to s 90A of the Care Act.

67. It is clear from the terms of s 90 that, if time to appeal is extended, the plaintiff bears the onus of establishing an entitlement to the relief which s 90 provides. Section 90(2) provides that the Court may grant leave if it appears that there has been a significant change in any relevant circumstance since the care order was made or last varied. It is apparent that relief pursuant to s 90 is discretionary, and that the focus is whether there has been a significant change in any relevant circumstances. The “relevance” of changes in circumstances is their impact, or likely impact, on the welfare of I. There is no evidence before this Court which appears capable of establishing that there has been a significant change in any relevant circumstances since the care orders which were the subject of the plaintiff’s s 90 application in the lower court were made. In the context of this case, changes in the plaintiff’s housing, employment, academic or financial circumstances would not have the requisite relevance to enliven s 90.

68. The evidence by which the plaintiff expects to prove significant changed relevant circumstances is largely limited to her own unqualified opinions or unsupported allegations. In the course of submissions, the plaintiff stated that she could secure evidence of various matters which may demonstrate a change in relevant circumstances, whether significant or otherwise. With respect to her, the Court cannot determine the plaintiff’s application on the basis of what, at some unidentified time, in some unidentified way, further evidence might tend to establish. There is a material distinction between beliefs, assertions, and submissions on the one hand, and the evidence which may be capable of establishing them on the other. The latter is absent in this case.

59. In the absence of evidence which appears capable of establishing a significant change in the plaintiff’s insightfulness and parenting capacity, it is difficult to see how the plaintiff has a fairly arguable appeal. Lest, however, that view is unfair to the plaintiff, it is appropriate to consider the relevant considerations to which s 90(2A) of the Care Act refers. Given the use of the expression “must consider” in that provision, there is little doubt that they are in the nature of mandatory relevant considerations (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40).

60. In any event, if time to appeal were extended, in order for the plaintiff to be successful, apart from what might be considered the threshold requirement of s 90(2), pursuant to s 90(2A), the plaintiff would also need to satisfy the Court with respect to the matters articulated in s 90(2B). A court deciding a s 90 application needs to consider each of those matters, unless the evidence suggests otherwise, and then make an evaluative determination with respect to them. The first of those matters is the views of I, and the weight to be given to those views, having regard to the maturity of the child or young person and her capacity to express his or her views (s 90(2B)(a)).

61. The child in this case is of an age where her views must be carefully considered in any proceedings in which the paramount consideration is her best interests. By the time these proceedings came before the Court, if time to appeal is extended, I would either be 12 years of age or so close to it that, if the provisions of s 99C were not enlivened, the proximity of I to them being so would incline the Court to give very considerable weight to her wishes. Nothing with respect to I’s wishes provides any comfort for the plaintiff in terms of a fairly arguable case on appeal.

62. The length of time for which I has been in the care of her present carers and stability of the present care arrangements (s 90(2B)(b)), similarly, provide no comfort for the plaintiff in terms of her having a fairly arguable case. I has been in care for more than half her life. The present arrangements for I’s care appear stable and adequate. Similar observations apply to the primary consideration articulated in s 90(2B)(c), that is, the stability and security of I’s present care arrangements. Albeit in a slightly different context, the Court will return to that topic.

63. None of the additional considerations referred to in s 90(2C) of the CareAct supports the plaintiff in terms of a reasonably arguable case. The Court does not understand it to be urged that s 90(2E) of the Act is engaged. The plaintiff has previously made one application pursuant to s 90 of the Care Act that has been dismissed.

64. Although the prospects of success with her appeal appear very limited, the Court does not find or need to find that the applicant has no reasonable prospect of success if time to appeal is extended. The requirement that the applicant has a fairly arguable appeal is not made out. If, however, the Court is wrong in that regard and it is necessary to consider the question of prejudice to I, the evidence in that regard is instructive.

65. Whether viewed through the prism of s 90(2B)(c), which refers to “the course that would result in the least intrusive intervention into the life of the child or young person and whether that course would be in the best interests of the child or young person”, or independently of it via the case law and overarching requirement of s 9(1) of the Care Act, extending time to appeal would not be in I’s best interests.

66. In Tomko v Palasty(No 2) [2007] NSWCA 369 at [14], Hodgson JA said that:

“There may be circumstances, where it is appropriate to go further into the merits of the case of a person seeking an indulgence such as this, than to ask whether the case is fully arguable. If such a person has a reasonable explanation of delay and the opponent does not have a strong case of prejudice, then a fairly arguable case is sufficient. However, if the explanation of the delay is less than satisfactory or the opponent has a substantial case of prejudice, then it may be relevant that the person seeking the indulgence shows that his or her case has more substantial merit than merely being fairly arguable.”

77. In Blackmore v Browne; Kara Kar Holdings Pty Ltd v Blackmore [2011] NSWCA 114, Campbell JA agreed with Hodgson JA’s remarks in Tomko v Palasty(No 2) [2007] NSWCA 369. Assuming, without needing to decide the issue, that it is appropriate to “go further into the merits” of this case, the Court has done, and will further do so.

78. Important for present purposes is the decision of Lindsay J in Re M; Application of YA [2014] NSWSC 1736, which involved an application for extension of time for the plaintiff to appeal orders made by the Children’s Court. Citing s 9(1) of the Care Act, which enshrines the “paramountcy principle” as it is generally described, his Honour observed that, in any application of the Care Act the safety, welfare, and wellbeing of the child or young person is paramount, His Honour added that:

“Upon a consideration of what should be the proper order, bearing in mind the discretionary nature of the Court’s jurisdiction on an application for an extension of time, it is important to bear in mind the statutory framework (of the Care Act) within which a decision must be made.”

79. His Honour, at [36] reiterated that a matter of considerable importance involved:

“the safety, welfare and well-being of [the child] as the person whose interests are most directly affected by these proceedings and for whose protection such proceedings can be contemplated.”

80. Lindsay J’s decision in that case turned significantly, if not decisively, on the particular circumstances of the child.

81. In this case, the Court is persuaded that the prejudice to I would be not insubstantial if this application were granted. There are several reasons why the Court makes that finding. If one were to refer in greater detail than the Court has in these reasons to the case review minutes of 16 November 2022, and assumes, as one reasonably could, that the matters raised by the plaintiff in the course of that meeting were genuinely raised by her, and there is no suggestion that they were not, they provide a very instructive and concerning insight into what is likely to be agitated by the plaintiff if leave to pursue an appeal against the s 90 decision is granted. As recorded earlier, those matters suggest that the concerns underpinning the concerns which Dr Renshall had in 2019 remain largely unaddressed. The plaintiff has not adduced evidence capable of establishing that they have been. That is a matter of considerable significance.

82. Nothing the plaintiff has said in the current application suggests that she in any way resiles from any of her previously stated beliefs or assertions. There is evidence in the plaintiff’s affidavit in these proceedings that suggests that she continues to believe the allegations and assertions, which she inappropriately raised in the November 2022 meeting.

83. The second matter is what would be different if time to appeal were extended. It is difficult to suggest anything positive, which may emerge in the interests of I if time to appeal were extended. Conversely, as submitted by each of counsel for the Secretary and I, it is not hard to imagine, particularly given her age, and the importance which her wishes would assume that, although not a party to the proceedings in the strict sense, it is inevitable that I could not avoid being effectively drawn into any s 90 appeal which would result from extending time to appeal.

84. Assuming, despite the paucity of evidence in that regard, that the arrangements that the plaintiff could put in place for I’s care, education and maintenance involved no disqualifying factors, that would not support exposing I to further litigation. It is readily apparent that, in any further hearings, the plaintiff would concentrate her energy very significantly on seeking to explore, agitate, and to the extent that they do not accord with her own views in that regard, disprove or diminish the weight appropriate to be afforded to I’s clearly stated wishes. I’s age, and the time she has had to formulate her clearly articulated wishes suggest that, absent unacceptable risk, and there is no evidence of that in I’s current placement, I’s wishes should be respected.

85. As recorded earlier, in view of the most recent document providing the Court with a snapshot of I’s progress, her position in life, her attachments, her issues, and the like, drawing her into further litigation would not be in her best interests. In J v C (an infant) [1969] UKHL 4; [1969] 1 All ER 788; [1969] 2 WLR 540; [1970] AC 668, it was accepted that it ought not be assumed that change has no impact on the lives of children, who are the subject of change. The evidence suggests I is doing as well as can reasonably be expected in the care of a committed and caring household. Nothing advanced by the plaintiff supports finding that changing I’s current care arrangements would be in her best interests. Nor would further litigation with respect to the arrangements for I’s care. In the absence of a clear likelihood of possible benefit to I in granting this application, prejudice to I would, if nothing else did, justify declining to extend time to appeal.

86. So far as the application to extend time to appeal against the s 90A orders is concerned, nothing to which the plaintiff has referred the Court, by way of evidence, admissible or otherwise, provides a basis for finding that the plaintiff has a fairly arguable case to disturb the s 90A prohibition orders. The fate of the s 90A orders would turn, if not decisively, almost so, on the fate of her s 90 application. In neither instance has the plaintiff demonstrated a fairly arguable case.

87. Other than her claims to have done so, there is no reliable evidence advanced by the plaintiff to suggest that she has successfully addressed the issues of concern which Dr Renshall identified in 2019. Those concerns are recorded by Dr Renshall in paragraphs 74 to 82 (Court Book, Tab 15, pages 507 – 510). Dr Renshall’s “recommendations” are recorded in paragraphs 84(a) and 84(c) of her report. Those issues and absence of evidence of implementation of those recommendations remain concerning.

Disposition

88. For the foregoing reasons, the Court is not persuaded that the plaintiff makes out a case for an extension of time to appeal either the s 90, or the s 90A Care Act orders of the Children’s Court.

89. The orders of the Court will, accordingly, be that the summons for leave to appeal filed 20 August 2023, and amended summons for leave to appeal filed 18 August 2023, are dismissed.

Orders

1. The summons for leave to appeal filed 20 August 2023, and amended summons for leave to appeal filed 18 August 2023, are dismissed.

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Amendments

13 November 2023 - File number(s) section - Amended typographical error

Decision last updated: 13 November 2023