Re: Elizabeth - [2011] NSWDC 245

District Court

New South Wales

Medium Neutral Citation: Re: Elizabeth [2011] NSWDC 245
Hearing dates: 8, 10, 11, 12, 15, 16, 17, 18 August 2011
Decision date: 21 September 2011
Before: Letherbarrow SC DCJ
Decision:
Summons dismissed

Catchwords: CHILDREN AND YOUNG PERSONS - Children and Young Persons (Care and Protection Act) 1998 (NSW) - mother's appeal pursuant to s 91 - safety, welfare and wellbeing of the child - burden of proof - is Act premised on goal of keeping families together - realistic possibility of restoration - use of the United Nations Convention on the Rights of the Child s 90(6) considerations - age of the child - length of time in care of present care givers - wishes of the child - attachment issues - adequate standard of care - risk of psychological harm - consideration of care plan - leave to vary current parental responsibility order - mother's summons dismissed
Legislation Cited: Children and Young Persons (Care and Protection) Act 1998, Criminal Code Act, 1995
Supreme Court Act, 1970
Cases Cited: Re Sophie (No 2) [2009] NSWCA 89, M v M [1988] HCA68; 166 CLR 69, L v District Court of New South Wales [2011] NSWCA 43, Director-General Department of Community Services v D [2007] NSWSC 762, In the matter of Campbell [2011] NSWSC 761, Re Tracey [2011] NSWCA 43, Re an Infant K (1973) 1NSWLR 311, Rice and Asplund (1979) FLCÂ¶ 90 - 725, Re Saunders and Morgan & Anor v Department of Community Services (12/12/2008, NSWDC, unreported, Johnston DCJ)
Texts Cited: UN General Assembly, Convention of the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3, available at: HYPERLINK " [accessed 18 January 2013]
Category: Principal judgment
Parties: Suppression of the parties' details. Suppression of details of solicitors acting for parties.
Representation: Suppression of the parties' details. Suppression of details of solicitors acting for parties.
Suppression of the parties' details. Suppression of details of solicitors acting for parties.

File Number(s): 2009/335531
Publication restriction: Suppression of the parties' details. Suppression of details of solicitors acting for parties.

Judgment

Introduction

By her summons filed in this court on 11 June 2009, the mother appeals against the decision of Senior Children's Magistrate Mitchell of 15 May 2009, in relation to her daughter "Elizabeth", pursuant to s 91 of the Children and Young Persons (Care and Protection) Act 1998 (the Act).

In his decision, the Senior Children's Magistrate declined to make orders sought pursuant to s 90 of the Act which would have the effect of returning Elizabeth to her mother's care and made orders whereby she was placed under the parental responsibility of the Minister to the age of 18 years with aspects of parental responsibility exercised jointly by the Minister and the relevant foster carers or solely by such foster carers.

The four grounds of appeal set out in the mother's summons are as follows:

(i) "The Magistrate erred in finding that there was not a realistic possibility of restoration of Elizabeth to her mother's care.

(ii) The Magistrate erred in failing to place little or no weight on the significant attachment between Elizabeth and her mother.

(iii) The Magistrate erred in placing little or no weight on the cultural language and religious issues.

(iv) The Magistrate erred in failing to place little or no weight on the significant familiar supports that the mother had to support and maintain Elizabeth safely and securely in her care."

The relevant relief claimed by the mother in her summons is an order placing Elizabeth under her parental responsibility.

The appeal is opposed by all other parties. Such parties are the Director General, Department of Family and Community Services (the first defendant), the Minister, Department of Family and Community Services (the second defendant), "the foster mother" (the remaining third defendant) and Elizabeth herself through her independent legal representative (the fourth defendant).

Ms Goodchild appeared for the mother. Mr Anderson appeared for the first and second defendants whose positions are identical and whom I shall refer to jointly as "the Department". Mr Braine appeared for the foster mother. Mr Gardiner appeared for the ILR.

The Background Facts

The mother was born in Cambodia on 6 May 1982 and is currently 29 years of age. In approximately 2001/2002 the mother married in Cambodia. Her husband, "B", was born on 4 September 1975, also in Cambodia. Elizabeth, their daughter was born in Cambodia on 22 August 2005. She has recently turned 6 years of age.

On 10 October 2006, the mother arrived into Sydney on a Thai Airways flight from Bangkok as a member of a tour group which included her husband's sister and aunty. The mother had brought Elizabeth with her whom was then aged 13 months.

Another member of such tour group had fallen unconscious on the flight which led to the authorities in Sydney immediately arresting, inter alia, the mother and her said relatives who were all charged with importing a marketable quantity of a border controlled drug, namely heroin, contrary to s 307.2 of the Criminal Code Act, 1995.

The day following the mother's arrest Elizabeth was placed in the foster care of the foster mother and the foster mother's own mother. The latter died on 11 April 2010 when Elizabeth was still in her care. Elizabeth remains in the foster mother's. The foster mother was born in 1975 and is currently 35 years of age. She has a natural daughter of her own, "Julie", who was born in 2003 and is currently aged 8.

Since first being placed into foster care, Elizabeth has resided in the same house in the northern suburbs of Sydney. However, it is common ground that as a consequence of the foster mother's own mother's death such residence has passed equally to the foster mother and her two sisters which will result in either the house being sold and the proceeds divided equally between them or the foster mother taking a mortgage to buy out her sisters' interests.

The mother pleaded guilty to be said criminal charge and was convicted and sentenced by his Honour Judge Williams of this court on 2 November 2007 to a period of imprisonment of four years and five months with a non-parole period of two years and nine months backdated to 10 October 2006.

On 18 March 2009, Elizabeth underwent major heart surgery performed by Associate Professor Winlaw, cardiac surgeon, consequent upon a diagnosis of an atrial septum defect which itself was diagnosed during her admission to hospital in January 2009 with a lower respiratory tract infection.

During her time in prison the mother had contact with Elizabeth but the frequency varied. The mother was released from prison on parole on 9 July 2009 and since such time has had supervised contact with Elizabeth which is currently at a level of two hours per fortnight.

The mother has remained in Australia since her release from prison and is currently working, with appropriate permission, in her own business. Nevertheless, it is common ground that the mother is likely to be deported and I am to decide this appeal upon that assumption that if Elizabeth is returned to her they will both return to Cambodia. However, in this respect, the mother intends to avail herself of her appeal rights. The evidence before me is that this is a two stage process and could take more than a year.

Elizabeth's own migration status was the subject of evidence before me which was that it was more than probable that she would be granted permanent residency in Australia. However, the course of events overtook this evidence and Elizabeth was granted such permanent residency shortly before the end of the hearing before me.

Elizabeth completed pre-school in 2010 and commenced infants school this year. She attends the same public school as Julie who is in Year 4. Elizabeth's first semester school report is annexed to the foster mother's affidavit sworn 15 July 2011 (Tab 82). Such report shows that Elizabeth is doing well in all areas.

Unfortunately, on the night before the last day of such hearing, the mother received news that Elizabeth's father, B, had been killed in a motorcycle accident in Cambodia.

Procedural History

This matter has a long and complex history. I do not intend to set this out in detail but rather to summarise the more important aspects.

The first application for a Care Order under the Act was filed in the Children's Court on 6 November 2006. On 22 January 2007, such court made a long term order placing Elizabeth in the parental responsibility of the Minister.

Prior to and after the mother's abovementioned sentencing, orders were made providing for Elizabeth to have contact with her.

On 14 July 2008, the mother filed an application pursuant to s 90 of the Act in the Children's Court seeking rescission or variation of the placement order and the then current contact order and seeking orders whereby Elizabeth would be placed in the parental responsibility of the Minister until 10 July 2009 (being the day after the mother was to be released from custody), with aspects of the parental responsibility to be exercised jointly by the Minister and the mother. By order of the Children's Court of 18 August 2008 the foster mother and her own mother were joined to such proceedings.

Shortly after Elizabeth's heart surgery, which was successful, an amended care plan was filed on 24 March 2009 which proposed that Elizabeth be restored to the mother's care and returned to Cambodia.

The hearing of the mother's s 90 application took place over several days in late March and early April 2009. At the conclusion of this hearing, the Senior Children's Magistrate reserved his decision which he delivered on 1 May 2009, directing that the Director General "prepare and file a fresh Care Plan directed to (Elizabeth) remaining in Australia in the care of (the foster mother and her mother) and, in particular, to the detailed steps which I have indicated in these reasons should be taken - some promptly and some over-time, to securing (Elizabeth's) cultural heritage".

An amended care plan dated 14 May 2009 was filed on 15 May 2009 as per his Honour's direction and on that date his Honour made the final orders referred to above which are the subject of this appeal.

On 11 April 2010 the foster mother's own mother passed away.

In late May and over several days in June 2010, an earlier appeal to this court was heard by Balla DCJ who reserved her decision until 28 July 2010 when she dismissed the relevant summons and affirmed the orders of the learned Senior Children's Magistrate in all respects except to vary them to remove reference to the foster mother's mother.

On 25 August 2010, the mother filed a notice of appeal to the Supreme Court which was replaced by a summons filed in the Court of Appeal on 11 November 2010 seeking relief pursuant to s 69 of the Supreme Court Act, 1970. Such summons was heard on 1 February 2011 by Spigelman CJ, Beasley JA and Gyles JA and a decision was handed down on 10 March 2011 quashing the decision of Balla DCJ and remitting the matter to this court for determination according to law.

The remitted appeal was heard before me over some eight days between 8 and 19 August last when I reserved my decision.

The Nature Of The Evidence

Pursuant to s 91(2) of the Act, an appeal such as the present is by way of a new hearing and fresh evidence or evidence in addition to or substitution for the evidence on which the decision appealed from was based may be given. Pursuant to s 91(3) it is provided that, without limiting s 91(2), the court may instead of taking fresh evidence decide to admit as evidence the transcript of the proceedings before the Children's Court and any exhibits tended during those proceedings.

In accordance with these provisions, on the appeal before me, a large amount of documentary evidence was tended by Mr Anderson, which not only included the documentary evidence originally before the Senior Children's Magistrate but that before Balla DCJ together with the transcripts of evidence of numerous witnesses. Ms Goodchild objected to some of this material, which I admitted after argument. The balance was admitted by consent.

In addition, fresh evidence was also admitted. Such evidence included oral evidence from several witnesses based in Cambodia which was taken via a "Skype" video call.

Further, there was some additional cross examination of a number of witnesses.

Finally, the parties provided written submissions and summaries of the evidence, most of which were quite extensive, coupled with numerous academic articles and documents emanating from the United Nations.

The Issues

Whilst pursuant to s 93 of the Act proceedings before the Children's Court, which include this appeal, are not to be conducted in an adversarial manner, there was, unfortunately, a degree of hostility between certain of the counsel involved.

More relevantly, there was little agreement between the mother's representatives and those of all the parties as to not only what conclusions should be drawn from the evidence but also as to the fundamental legal principles involved in determining the appeal.

Whilst all parties agreed that in determining the appeal, pursuant to s 9(1) of the Act "the safety, welfare and well being of the child or young person are paramount", thereafter they essentially fell into two camps with Ms Goodchild making numerous submissions as to the law and the facts which were generally met by the united opposition of the defendants.

The primary legal issues identified were as follows:

who, if anyone, bears the onus in this appeal?
is the Act "premised on a goal or an aim of keeping families together"?
in determining this appeal, is it necessary for the court to not only consider s 90 and s 80 of the Act but also s 83 and, specifically, s 83(7) and to make "a determination", as Ms Goodchild put it in her written submissions, thereunder as to whether there "is a realistic possibility of restoration ..."?
what use is to be made of the provisions of the United Nations Convention on the Rights of the Child?
Should leave be granted to the first defendant pursuant to s 90(1) of the Act to vary or amend the current parental responsibility order to remove reference to the foster mother's mother and when should this question be answered in the context of the current appeal?

The disputes as to what are the appropriate facts which should be found on the evidence largely arose when considering the various discretionary matters including those mandatory considerations referred to in s 90(6) of the Act which the court is to take into account in determining this appeal pursuant to its power contained in s 91(5). There was also some disagreement as to the mother's credit. Finally, the precise nature of the views of the primary expert in the matter, Dr Lennings was the subject of debate.

I intend to deal with the legal issues raised first before passing to questions of credit, matters of fact and opinion and then to determine the appeal pursuant to s 90 subject to the paramountcy considerations contained in s 9(1) of the Act. I have also always borne in mind that this appeal is not a contest between the mother and the foster mother.

The Onus Question

Ms Goodchild submitted that this issue "ought to be treated with great care in proceedings such as these" because they are not adversarial and the court is not bound by the rules of evidence except to the extent that it otherwise determines: see s 93(1), (2) and (3) of the Act.

Ms Goodchild relied upon certain comments by Justice Basten in Re Sophie (No 2) [2009] NSWCA 89 where he said at [98] it "is at least doubtful that there is any legal burden of proof imposed on a particular party..." with respect to proceedings under the Act. In the same paragraph, his Honour went on to state that:

"It is no doubt true that the Director-General must ensure that there is material before the court which satisfies it as to the necessary pre-conditions to the making of a care order, but there would be no legal error if the court were properly satisfied of the relevant pre-condition otherwise than as a result of the case presented by the Director-General".

Ultimately Ms Goodchild submitted, as I understood her argument, that the only onus in the present matter is borne by the Director-General and only to the level of an evidential onus.

Mr Anderson argued that not only was Justice Basten "in the minority in his observations about onus in Re Sophie (No 2)" but that the nature of the matter being considered in that case raised different considerations. In short, he submitted that as this appeal is the mother's "s 90 application to seek a variation or rescinding" of the earlier order and that she bears a "persuasive onus". Neither Mr Braine nor Mr Gardiner, made any additionally relevant submission as to the onus question.

Whilst Justice Basten's comments in Re Sophie (No 2) are informative, ultimately, his Honour specifically did not determine this question as he found it unnecessary. Further, Justice Giles at [3] did not "wish to cast doubt...without a submission to the contrary and proper argument" on the fact that references in s 93 (4) and (5) of the Act to the standard of proof on the balance of probabilities and satisfaction on the balance of probabilities suggested that there is a "burden of proof, were application is made for a care order ... resting on the Director-General as the applicant". Justice Tobias did not discuss the issue but determined the appeal on the basis that the Director-General bore the relevant onus.

All parties before me agreed that if after a consideration of all of the evidence presented by all parties I was satisfied, one way or the other, on the balance of probabilities as per s 91(4) of the Act, it would be unnecessary to determine the onus question at issue. After considering, as described below, all the relevant evidence I am so satisfied and consequently it is unnecessary to decide this question.

Is The Act "Premised on a Goal or an Aim of Keeping Families Together"?

This question arises from Ms Goodchild's submission that I "should not have any difficulty in considering the operation of the Act and considering the Act in its broad context that it is concerned with and is premised on a goal or an aim of keeping families together, subject of course to the paramountcy consideration in 9(1)".

In a similar vein, Ms Goodchild submitted that I would "have no difficulty in being able to consider that, subject of course to the safety and well being of the child, (the Act) is about the reunification of families, it is about restoring children to their families which is how this Act is meant to operate".

Ms Goodchild confirmed that she was not suggesting that these considerations overrode s 9 (of the Act) but that when considering "how the Act operates ... the reunification of families is of great importance".

Whilst referring to authority supporting such a principle under the Commonwealth Family Law Legislation, Ms Goodchild conceded that there was no authority that she was aware of under the Act supporting such an interpretation.

Ultimately, Ms Goodchild seemed to back away somewhat from such an interpretation and submitted that "everything being equal, if your Honour comes to a position where you have a situation of biological parents and restoration to those as opposed to remaining - and this is no disrespect at all - remaining with foster carers, a privilege must be given to the reunification of the family" which she accepted was nevertheless subject to s 9(1). She further submitted that there is "no bias in this legislation to a privilege to status quo; it is the status quo anti-position".

As I understood it, none of the defendants agreed with Ms Goodchild's various submissions as to the existence of such an underlying "privilege", even if it was itself subject to the paramountcy principle.

Mr Braine handed up a copy of the objects and principles in the predecessor of the current Act, being the Children Care and Protection Act 1987, as they were set out in s 55 thereof. Whilst s 55(a) provided that "the welfare and interests of children are to be given paramount consideration" s 55(c), (f) and (g) provided as follows:

"(c) children, for the full and harmonious development of their personalities, need love and understanding and, towards that end, should, wherever possible, grow up in the care and under the responsibility of their parents, but if that is not possible, in an environment of affection and moral and material security and, in the case of children of tender years, should not, except in exceptional circumstances, be separated from their parents;

...

(f) responsibility for the welfare of children belongs primarily to their parents, but if not fulfilled devolves upon the community, and

(g) except in exceptional circumstances or pursuant to legal proceedings, there should be no interruption of relationships between children and their parents contrary to the wishes of children and their parents."

Mr Braine submitted that as these provisions were repealed and nothing similar is contained in the current Act "the Legislature has been endeavouring to say the most important principle is the safety, welfare and well-being of the children". I was also referred to the second reading speech in relation to the Children and Young Persons (Care and Protection) Amendment (Permanency Planning) Bill (No 2), 2001.

Some general guidance as to the importance of maintaining parental ties can be found in the High Court's decision in M v M [1988] HCA68; 166 CLR 69. Whilst the court was there dealing with a sexual abuse allegation in the context of the Family Law Act, the court was required in proceedings under the relevant part of that Act in relation to a child to "regard the welfare of the child as the paramount consideration" (s 60D). Further, whilst the court's comments must be viewed in the context of the access dispute before it under such legislation, the following statement has been quoted with approval more generally than in that context:

"Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression...in proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interest to maintain the filial relationship with both parents...".

Whilst I do not accept Ms Goodchild's original submission that the subject Act is "premised on a goal or aim of keeping families together", I do not disagree with her ultimate submission that if all other considerations examined pursuant to the paramountcy principle contained within s 9(1) are evenly balanced the court should favour a result which would see children being raised by their natural parents. I also accept that such a consideration is a very important one to take into account in the exercise of the relevant discretion under the subject Act.

The Relevance of s 83 in s 91 Appeals from s 90 Applications

The interrelationship between various sections of the Act when considering an appeal under s 91 arising from a party's dissatisfaction with the Children's Courts determination of a s 90 application was raised by Ms Goodchild in her oral submissions in reply. I granted the plaintiff leave to provide written submissions as to such interrelationship to which each of the defendants were permitted to reply. Unfortunately, such replies raised some other matters which led to some amendment of my original orders as to what such written submissions were to cover with the result that several further sets were received and the issue under consideration becoming rather confused.

Before discussing the parties submissions as to this question, it is necessary to set out the relevant parts of s 83 and s 90 of the Act which are as follows:

"83 Preparation of permanency plan

(1) If the Director-General applies to the Children's Court for a care order (not being an emergency care and protection order) for the removal of a child or young person, the Director-General must assess whether there is a realistic possibility of the child or young person being restored to his or her parents, having regard to:

(a) the circumstances of the child or young person, and

(b) the evidence, if any, that the child or young person's parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care.

(2) If the Director-General assesses that there is a realistic possibility of restoration, the Director-General is to prepare a permanency plan involving restoration and submit it to the Children's Court for its consideration.

(3) If the Director-General assesses that there is not a realistic possibility of restoration, the Director-General is to prepare a permanency plan for another suitable long-term placement for the child or young person and submit it to the Children's Court for its consideration.

(4) In preparing a plan under subsection (3), the Director-General may consider whether adoption is the preferred option for the child or young person.

(5) The Children's Court is to decide whether to accept the assessment of the Director-General.

(6) If the Children's Court does not accept the Director-General's assessment, it may direct the Director-General to prepare a different permanency plan.

(7) The Children's Court must not make a final care order unless it expressly finds:

(a) that permanency planning for the child or young person has been appropriately and adequately addressed, and

(b) that prior to approving a permanency plan involving restoration there is a realistic possibility of restoration having regard to:

(i) the circumstances of the child or young person, and

(ii) the evidence, if any, that the child or young person's parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care.

...

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.

...

(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.

...

(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.

..."

In her first set of written submissions Ms Goodchild, after referring to the necessity for the court to take into account s 90(6) factors submitted as follows:

"5. Upon taking into account the subsection (6) matters and if the court is satisfied that it is appropriate to do so, it may rescind the order: 90(7). There does not appear to be any judicial considerations of how the court is to exercise its discretion with respect to section 90(6) applications. This court may be assisted by judicial considerations of s83 of the Act in so far as section 83 contemplates restoration of a child to its parents.

6. Common sense would dictate and a purposive approach to the interpretation of the Act would allow the court, on a s 90 application, to make an evaluation of 'whether there is a realistic possibility of the child being restored' to the care of her parent. Section 90 does not on its face require the court to make such a determination - in the same sense as section 83(7). However, the plaintiff contends that in its determination of the matters the court is required to take into account, such a purposive evaluation is required."

In support of this submission, Ms Goodchild referred to the recent decision of Slattery J in In the matter of Campbell [2011] NSW SC 761.

In response, Mr Anderson submitted that "in determining this appeal, the Court is not required to consider the matters under s 83 of the Act and is not required to consider s 83(7) (namely, whether there is a realistic possibility of restoration) in the context of the s 90(6) matters". This was said to be the case because it was only "if the Court determines that there should be a rescission of the subject orders may the Court need to consider the provisions of s 83 of the Act". This was said to be the case because of the wording of s 90(7)(b).

Mr Anderson's written submissions went on to argue that even if s 83 must be considered, the court would determine that pursuant to the considerations set out in s 83(7)(b)(i) and (ii) that there was no realistic possibility of restoration in any event.

As to the decision of Slattery J in In the matter of Campbell, Mr Anderson submitted, inter alia, that it was not applicable because in that matter his Honour was dealing with an application whether to grant leave pursuant to s 90 and was primarily concerned with the compulsory considerations set out in s 90(2A).

Mr Braine submitted that if the legislature had intended that if an evaluation of whether there is a realistic possibility of restoration was a relevant consideration under s 90 it would have specifically "been mandated in the section". He further submitted that to apply a test of realistic possibility of restoration under s 90 would appear to be in direct conflict with the matters set out in s 90(6) and gave the example of a parent having a chronic drug problem who ultimately addresses such issues but takes ten years to do so during which the child "has been stabilised in long term care". In such circumstances, Mr Braine submitted that simply because the court might find that the reasons for the removal of the child from the parent's care have been addressed, the passage of time was to be disregarded as were the best interests of the child which might require it to remain in the out of care home placement. In short, he submitted that the test provided in s 83 should not be given primacy over the factors mandated under s 90(6). Mr Braine also submitted that the remarks of Slattery J in In the matter of Campbell were obiter as the application before the court therein was an appeal from a refusal to grant leave to vary or rescind a care order.

Mr Braine further submitted that in this matter the Director-General is not applying for a care order "for the removal of a child or young person" and hence s 83 has no relevant application either to the appeal itself or the Director-General's application to vary the order currently in place due to the death of the foster mother's mother (see below).

Mr Gardiner, generally adopted the submissions of Mr Braine and simply submitted that "s 90 proceedings do not require the court to consider realistic possibility of restoration" which only becomes relevant in proceedings pursuant to s 61 of the Act. Accordingly, he further submitted that the decision of In the matter of Campbell and the decision referred to therein of Re Saunders and Morgan & Anor v Department of Community Services (12/12/2008, NSW DC, unreported, Johnston DCJ) "are not on point".

In her written submissions in reply as to this issue, Ms Goodchild argued as follows:

"2. The plaintiff repeats that the court must consider s 90(6) factors and in so doing, being satisfied that it is appropriate to do so - reach a determine in the circumstances of this case that there is a realistic possibility of restoring the child to her mother.

3. In the Matter of Campbell [2011] NSW SC761 does not arise in this case.

4. Re Saunders and Morgan & Anor v Department of Community Services, 12/12/2008 NWDC Unreported assists the court in these proceedings in so far as the court is to consider whether the child is to be restored to the mother and the adequate care that the mother is able to provide the child.

...

8. The 1st defendant contends that section 83(7) arises (despite section 83(1)) upon the court determining that there should be a rescission of the current orders (Submissions of Director-General 30th August 2011 paragraph 15) and that both limbs of section 83(7)(b) have to be considered.

9. The plaintiffs contends that if the court does determine upon rescission of the order that section 83 is to be considered then on a proper consideration of the rationally probative relevant evidence in these proceedings, the court should be satisfied that for the purposes of section 83(7)(b)(i) the circumstances of the child, and for section 83(7)(b)(ii) the child's parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care, that both limbs of the test have been more than adequately satisfied."

It seems Ms Goodchild's primary submission on this point is that "as part of the evaluative process required to be undertaken by the court pursuant to s 90(6) and (7) in determining the plaintiff's application for rescission", the court should properly assess "whether there is a realistic possibility of restoration" but that such "evaluative process" is not confined to this assessment.

I find that a determination as to whether there is a "realistic possibility of restoration" is not part of the "evaluative process required to be undertaken by the court pursuant to s 90(6) and (7) in determining the plaintiff's application for rescission" in this appeal. The present matter is not an application for a care order for the removal of a child by the Director-General within s 83(1). Further, regard must be had to the actual words of s 90(6) and the considerations as set out in sub-sections (a) to (f).

However, if I am wrong as to this matter, after considering the various discretionary matters discussed below, I have made a finding pursuant to s 83(7) of the Act which would not have altered the outcome of this appeal in any event.

The Relevance of the United Nations Convention on the Rights of the Child

When this matter was considered by the Court of Appeal (Re Tracey [2011] NSWCA 43) consequent upon the earlier decision of Balla DCJ, one of the reasons that it was remitted was that court's finding that her Honour committed a jurisdictional error in declining to take into account the principles enshrined in the United Nations Convention on the Rights of the Child (1989) (CROC) to which Australia is a signatory although it has not been enacted as a part of Australian municipal law.

There was considerable debate before me as to how the provisions of CROC were to be utilised in determining this appeal. In its earlier decision in this matter the Court of Appeal was divided as to this question although as Beazley JA agreed with the reasons of the Spigelman CJ, I am bound by his views and not those of Giles JA.

At [45] Spigelman CJ concluded:

"In my opinion, these provisions of the CROC are capable of being relevant to the exercise of the discretion to make the relevant order sought by the appellant, i.e., that the existing order be rescinded".

In particular, Spigelman CJ referred to articles 7.1 as well as articles 3.2, 5, 8(1), 9.1 and 29.

Whilst Spigelman CJ concluded that the provisions of CROC "are capable of being relevant" to the exercise of my discretion, it is clear that he was of the view that they were in fact relevant in the current matter and I intend to treat them as such when further discussing this aspect below. This was also the ultimate position of all parties before me.

The Question of Leave with Respect to the First Defendant

Pursuant to s 90(1) of the Act an application for the recision or variation of a care order may only be made with leave of the Children's Court. In the current matter, with respect to the mother's appeal, it is common ground that this is not an issue.

However, the first and second defendants have sought such leave, if the mother's appeal is unsuccessful, to vary or amend the current parental responsibility order to remove reference to the foster mother's mother.

The parties made few submissions as to this question nor as to when it should be determined. In the circumstances, I have considered it at the conclusion of this judgment.

The Mother's Credit

The defendants, to varying degrees, attempted to make an issue of the mother's credit primarily as a basis for suggesting that her evidence concerning certain aspects of Elizabeth's life in Cambodia, if parental responsibility is returned to the mother, may not be as the mother would have the court believe. The defendants raised this issue despite none of them suggesting that the mother had not turned around her life greatly, particularly since leaving prison, as well as appearing to accept that she is now a hardworking, churchgoing, law abiding individual.

To some degree, the question of the mother's credit remained an issue before me due to the fact that it had been a larger issue before the Senior Children's Magistrate and Balla DCJ. At the time the matter was before the Senior Children's Magistrate, the mother was still in prison. When the appeal was first heard before Balla DCJ, whilst the mother had been out of prison for about twelve months she was not the person she is now.

Her original offence is only partly explained by her then youth, her poverty and her desire to purchase a home for Elizabeth in Cambodia. To bring Elizabeth with her was a significant error of judgment. Some of her evidence in the past as to what she knew about the venture and the involvement of other members of her husband's family is hard to accept.

More relevantly, the transcript of two taped telephone conversations (Tab 70), which is accepted to be accurate, between the mother and her husband when she was in gaol in May 2009 is of real concern. Parts of it appears only capable of an interpretation that the mother was telling her husband to lie about Elizabeth's intended housing in Cambodia for the purpose of misleading the court. In this respect, the relevant parts of the two such conversations are as follows:

"Phone Call 7...

Voice 1 (F): ...If somebody aks who we are staying with say that you live with your uncle. The uncle who lives near us. What is his name?

Voice 2 (M): Uncle Varn

Voice 1 (F): Uncle Var?

Voice 2 (M): No, Uncle Varn

Voice 1 (F): Talk to Uncle Varn that we want to use his place as our place of residence because his house is in brick and clean. Don't use Mum's place. I've already lost this case because of using Mum's place.

Voice 2 (M): At Mum's place we live upstairs and the other people live downstairs

Voice 1(F): That's why I lost my case last time! You've just said we live upstairs of which house? Uncle's house or any other house?

Voice 2 (M): Upstairs of Uncle's house.

Voice 1 (F): No, don't say Uncle's house. People here already know that if our aunt returns home she will live upstairs of Uncle's house. You can't use Uncle's house anymore. Say you live downstairs of the brick house.

Voice 2 (M): Yes

Voice 1 (F): Last time they took picture of the garage of Uncle's house and stated that we lived init. They said the place was in a pig style. That was why I lost my case last time. Do you understand?

Voice 2 (M): Yes, I do.

Voice 1 (F): You have to say you are staying at Uncle Varn's place.

Voice 2 (M): Yes

Voice 1 (F): I will tell them the same. Whatever I told you now I will say the same to them. Understand?

"Phone Call 9...

Voice 2 (M): On Monday I'll send you a letter. You must read this letter carefully because I want to tell you something that I couldn't say to you neither on the phone nor in that letter. In this letter I asked you to take photographs of Uncle's house. To use them as evidence, to show that we have a proper house so they will return us our child.

Voice 1 (F): Can you do that?

Voice 2 (M): Yes, Just take photographs of Uncle's house. That will be ok.

Voice 1 (F): Yes, take photographs of Uncle's house, outside, inside, kitchen area

Voice 2 (M): Yes

Voice 1 (F): And if somebody rings asking about the house you say when we return home, our Uncle will let us stay in his house. You need to talk to Uncle about this, ok! So everyone will say the same thing.

Voice 2 (M): Yes."

When these conversations were raised in the hearing before me, Ms Goodchild submitted that nothing other than a completely innocent interpretation of them could be reached by a reasonable reader. I simply cannot agree. Whilst the mother did say that she told her husband, apparently in another conversation not transcribed, not to lie, this, in my view, is exactly what she was telling him to do in the quoted conversations.

As I understand it, it is still the mother's position that she denies that she was in any way trying to influence what her husband might say.

These conversations initially caused me considerable concern. Nevertheless, the mother otherwise presented before me as a very impressive witness whom has undoubtedly changed her life for the better. These conversations took place at a time of desperation in her life whilst she was still in prison. She was no doubt motivated by her overwhelming desire to be reunited with Elizabeth and her apparent attempt to influence her husband's evidence must be viewed in this light. Such phone calls also occurred over two years ago prior to the mother becoming quite heavily and, in my view sincerely, involved in the Drummoyne branch of the Baptist Church as described by her and its current minister, Dr Radford, who was himself a most impressive witness and whose evidence I discuss in a little more detail below.

Ultimately, the mother's credit before me was not a major issue. Most of the relevant factual matters going to the likely or intended situation pertaining to Elizabeth's life in Cambodia were the subject of a reasonable, although varying, degrees of corroboration.

Section 90(6) Considerations

Section 90(6)(a) - The Age of the Child or Young Person

As mentioned, Elizabeth has recently turned six years of age. The relevance of her age is further discussed below.

Section 90(6)(b) - The Wishes of the Child or Young Person and the Weight to be Given to Those Wishes

Because of her age Elizabeth has never given any evidence in these proceedings nor, subject to what follows, has any attempt been made to put her "wishes" before the court. However, before me, the ILR tendered a document headed "Statement Pursuant to Section 99D(b)" of the Act which was ultimately admitted by consent and became Exhibit 3D1.

Pursuant to s 99D(b)(iv) and (v) of the Act, the role of the independent legal representative of the child includes "presenting direct evidence...about the child or young person in matters relevant to his or her safety, welfare and well being" and "presenting evidence of the child's or young person's wishes..." respectively.

Ms Goodchild originally objected to this statement on the basis that it was not a "wishes" statement and Mr Gardiner did not tender it as such but rather pursuant to paragraph (iv).

In admitting this statement on the basis that it was of some weight under s 99D(b)(iv), I nevertheless indicated that any such weight would be viewed in the context of Elizabeth's age.

The relevant parts of this exhibit are as follows:

"In an informal meeting with the Independent Legal Representative on 10 August 2011 the following was the subject of discussion:-
Elizabeth lives with (the foster mother) and her daughter (Julie).
Elizabeth likes living with (the foster mother) and her "big sister" (Julie).
Elizabeth attends a public school near where she lives with (her foster mother and Julie).
She is in kindergarten in a class called "KJ". Her teacher is "Miss (K)".
Elizabeth likes Miss (K).
Elizabeth has two (2) mums. She has a "foster mum" and "my mum".
Elizabeth knows that (the foster mother) is her foster mum and that (the mother) is her mum.
Elizabeth likes living with (the foster mother and Julie). Elizabeth says that she spends a lot of time doing all sorts of things with (the foster mother and Julie) and that she has "lots of fun time" with them.
Elizabeth has "lots of friends" at her school including her "best friend (M)", with whom she very recently had her first "sleep-over" at her home. She also has other friends including male friends named "(A) and (J)".
Elizabeth is planning her 6th birthday party with (the foster mother and Julie). She is planning on inviting a number of her female friends and some of her male friends from school.
Elizabeth goes to "karate" lessons on Tuesdays and enjoys it.
Elizabeth has "3 cats and a dog named (C)" living with her in her home. The brown cat (who does not have a name) sleeps at the foot of Elizabeth's bed.
Elizabeth says that she likes to help her foster mother around the house doing jobs like cooking.
Elizabeth also sees her mum ..... but can't remember how often she sees her.
When she sees (the mother) they watch movies and TV together and (the mother) watches Elizabeth play games on her computer.
Elizabeth enjoys seeing her mum ......."

Section 90(6)(c) - The Length of Time the Child or Young Person has been in the Care of the Present Caregivers

As stated, Elizabeth was placed into the care of the foster mother and the foster mother's mother on the day after she was brought into Australia by the mother on 10 October 2006. Elizabeth has been in the sole care of the foster mother since April 2010.

Accordingly, the current foster situation, albeit with the change described, has been in existence for almost the last five years and since Elizabeth was approximately thirteen months of age. Looking at it from another perspective, Elizabeth has spent approximately 80 percent of her life so placed.

Section 90(6)(d) - The Strength of the Child's or Young Person's Attachment to the Birth Parent and the Present Caregivers

There is a considerable body of lay evidence as to the attachments which Elizabeth has formed during her life and how they have developed over time. There is no doubt that the mother and the foster mother both love Elizabeth dearly.

However, attachment is essentially a theory developed since the 1950's in the field of child psychology and is best understood, both generally and in any specific case, with the assistance of appropriate expert evidence.

In this matter, the Children's Court appointed Dr Christopher Lennings is such an expert.

Dr Lennings numerous qualifications and lengthy experience in the area of child psychology are set out in paragraph 3 of his first report dated 21 October 2008 (Tab 38). Whilst the parties placed emphasis upon differing aspects of Dr Lennings' opinion in this matter, no one suggested that he was other than a highly qualified and experienced expert.

Dr Lennings' first assessment relevant to this matter took place in October 2008 with a second assessment taking place in February 2010. The latter assessment resulted in his second report dated 28 February 2010 (Tab 54).

Dr Lennings was called by Mr Anderson to give oral evidence before Balla DCJ and was cross examined at some length (Tab 62). He was also called and cross examined before me (T349 - 377). Prior to this being done, he was provided with those parts of the more recent evidence which he had not seen.

As to the question of attachment between Elizabeth and her mother at the time she was assumed into care in October 2006, Dr Lennings opined that there existed a secure attachment (Tab 62 - T216.28 - 45).

At the time of his first assessment in October 2008, at which time the mother was in prison, he opined that there still existed an attachment between her and Elizabeth but that it was "attenuated".

By the time of his review in February 2010, the mother had been released from prison and Dr Lennings' second report would seem to suggest that there had been some improvements in the attachment between her and Elizabeth with whom she had "developed a stronger relationship" (Tab 54 - report of 28/2/2010 - para 66).

By the time that Dr Lennings gave evidence before Balla DCJ, the foster mother's mother had passed away and the foster mother had become, in Dr Lennings' opinion, Elizabeth's "primary attachment figure" and he described that relationship as "a secure, loving, caring relationship" (Tab 62 - T194.46 - 49). Otherwise, Dr Lennings did not alter the view that he had expressed in his second report as to the improved nature of the relationship between the mother and Elizabeth.

A little over a year later, Dr Lennings was further cross examined before me. At this time Dr Lennings agreed that Elizabeth "is now primarily attached to (the foster mother) and to her family" (T351.21 - 22). Apart from emphasising on several occasions during his evidence the period of time that had elapsed since he last gave evidence and referring to the attachment that exists in Elizabeth's current living circumstances as now being "much more solid" (T370.4), Dr Lennings gave no relevant further evidence as to the current strength of Elizabeth's attachment to the mother. Nevertheless he did express some concern as to whether Elizabeth could develop a primary attachment to the mother due to the effluxion of time as follows (T371.28 - 372.9):

"Q. .......you're not concerned are you that Elizabeth won't be able to reattach to her mother if given the opportunity, that's not what your concern is?

A. To a certain extent it is. I'm sorry, to a certain extent it is. That's one of the critical issues in this process. I think that she would be able to develop a strong primary attachment to her mum, but we've now got to a point where there's enough other things that could go wrong with that now. Okay, it would've been far easier if this process had been decided earlier. Now the attachment to mum has to occur as she experiences the loss of her primary attachment and the loss of all the stuff that she's been familiar with up till then. That can be an intervening variable that can lead to the complications. I think mum's got the skills to create and to maintain a primary attachment, but the longer it goes it's gone long enough, it's gone a long time now, the longer it goes, the more complex that gets. Nonetheless, I still think mum's got the capacity to do it, whether or not the child will respond, as I said is one of the things that I've got to be a bit uncertain about.

Q. If his Honour is satisfied that matters of welfare have been adequately addressed for the purposes of the child going back to her mother?

A. Yes.

Q. When I'm talking welfare, I mean medical, dental, schooling, accommodations, you know what I'm talking about?

A. Yes.

Q. Then the only remaining issue to be of concern, is this the case, is to these issues around attachment?

A. Yes.

Q. Is that where this case is at?

A. It's a psychological development of which attachment is one of the core it's not the only thing but it's one of the core issues, that involve the psychological development and development of identity and all those kinds of things."

As Elizabeth's father has now passed away there can of course no longer be any relevant attachment between them pursuant to s 90(6)(d). In any event, Elizabeth had not seen her father since she first arrived in Australia and they had only had one telephone communication since. Further, prior to the mother's arrival into Australia, it was her evidence that she was the main carer for Elizabeth and one of the reasons that she expressed as to why she didn't leave Elizabeth in Cambodia was some concern about Elizabeth's father's ability to care for her.

As to the degree of attachment between the foster mother and Elizabeth, it is clear from the evidence that this attachment is not only Elizabeth's primary attachment but that it is very strong.

Section 90(6)(e) - The Capacity of the Birth Parents to Provide an Adequate Standard of Care for the Child or Young Person

There was considerable argument before me in relation to this consideration. The primary areas examined in the evidence were in relation to Elizabeth's financial support, housing, schooling and medical needs in Cambodia.

Ms Goodchild submitted, in my view, correctly, that it would be an improper exercise of discretion to take into account or examine the general lifestyle advantages that a child may have in Australia compared to Cambodia. No such comparisons should be made and I accept that it is impermissible to have regard to the general standard of living that Elizabeth would have in Australia compared with Cambodia.

Further, the sub-section itself speaks of an "adequate" standard of care as opposed to any comparison of what standard the birth parents may be able to provide compared to that of, for example, the foster carer's.

However, I do believe it is permissible to have regard to specific matters relevant to the actual child which may arise under considerations such as housing schooling and health, etc., and I did not understand any party to submit otherwise.

Whilst I intend to examine these matters in a little detail, it is my overall view that the mother is likely to be able to provide an adequate standard of care for Elizabeth.

Financial Support

The mother has managed to gain employment since being released from prison and currently runs her own cleaning business which was established with the assistance of Dr Radford. The mother also cleans Dr Radford's own home. Further, she has saved a not inconsiderable sum of money whilst doing so and supporting herself.

It is the mother's intention upon her deportation to Cambodia to open a coffee shop in the area in which she intends to live and she has provided a "business plan" in relation thereto which is the Annexure C to her affidavit sworn 4 July last (Tab 75). This document was prepared with the assistance of Mr Radford. I do not intend to analyse it in any detail. It was the subject of cross examination and some criticism by the other parties but at the very least it does show that the mother has given some real thought to this business.

The mother also arranged for International Social Services to undertake an assessment of the home and living circumstances of Elizabeth's maternal grandmother in Cambodia which is where the mother now intends to reside with Elizabeth. The report prepared consequent upon such assessment was admitted after considerable argument and is Annexure A to Exhibit B and is dated 2 August 2011. This assessment was undertaken by two members of the Cambodian Red Cross who then discussed their findings with a more senior officer, who prepared the report with their assistance. This more senior officer, Mr Mam Daro, was cross examined by Skype videolink as was one of the assessing officers, Mr Touch Pheakdey.

This report touches upon a number of matters further discussed below but as to the matter presently under consideration it confirmed that the proposed location for the mother's coffee shop is a "promising place...and is a good spot to run such a business". Mr Pheakdey said this was because the other coffee shops in the area were not modern.

Apart from hoping to become financially independent due to opening such a coffee shop, the mother relied on evidence from her stepfather, Mr S, that he would himself provide financial support for her and Elizabeth. Mr S also gave evidence via Skype videolink. His evidence established that he is some 74 years of age and in poor health. He is the owner of a business which is run by his eldest son from a factory which is next door to the home in which he lives with his first wife and, during certain parts of the day, with Elizabeth's grandmother to whom he is also apparently married. Elizabeth's grandmother generally lives in a smaller house next door which Mr S has legally transferred to her.

The mother has had very little contact over the years with Mr S whom has to date provided nothing by way of financial support to her or Elizabeth. In cross examination he indicated that he now wished to do so "because I want them to be back in Cambodia" (T239.44 - 49).

Apart from income from the proposed coffee shop and any financial support flowing from Mr S, Dr Radford gave evidence that his church of which the mother is a valued and trusted member, has formally determined to provide her with financial assistance by establishing a "need fund" which the mother could draw on for educational and medical purposes until Elizabeth reaches adulthood. In cross examination, Dr Radford gave evidence that his church had not insignificant financial assets and the approximate $3,000 per year over 10 years, which was the upper level of the support that it would be prepared to provide, would not cause it any financial difficulty. Further, whilst such financial support must be decided on an annual basis, Dr Radford was confident that not only would he remain the minister at his church but that these funds would be annually approved over such 10 year period.

The fact of the mother's drug conviction and its potential effect on her ability to earn income in Cambodia was also the subject of certain evidence and argument. The mother accepted that this conviction, if it became generally known, would not assist her in obtaining employment should she need to do so.

Looking at this aspect of the matter, from an overall perspective, I am satisfied that the mother is a hard worker and is a resourceful woman who intends to open the coffee shop business and seemingly has the funds to do so. There is also some evidence that it may be successful. If it is not, there may be some backup funds available from Mr S but I have some concern as to whether these would be forthcoming on an ongoing basis bearing in mind his age, fragile state of health and the lack of any evidence as to what happens to his estate upon his death. In this respect he has six adult children from his first wife and there is no evidence as to how Elizabeth or her mother or grandmother will be treated by them should he pass away.

I also accept Dr Radford's evidence that his local church will be able to provide a fund of the order mentioned for Elizabeth's needs.

Accordingly, on the balance of probabilities, it seems that there will be reasonable funds available for Elizabeth to be adequately supported should she be returned to her mother. However, whilst this is my view on the probabilities, I accept there are several unknowns which may result in a considerably more difficult outcome from a financial perspective.

Schooling

The mother's initial position in relation to Elizabeth's schooling was that she would take her each day to and from Phnom Penh so that she could attend an "International" school where lessons are given in English. She presented little evidence about this school nor its fees, which from other evidence, are seemingly prohibitive even taking into account any support provided by Mr S or through the fund established by Dr Radford. Also, it is unclear as to whether there is any public transport from the village in which the mother intends to live and operate her coffee shop to Phnom Penh and she does not drive although her intention was to learn how to do so. The distance from her village to Phnom Penh was also somewhat unclear but seems to be something in the order of twenty minutes by motor vehicle.

During Mr Pheakdey's cross examination, he gave evidence that the International School or schools in Phnom Penh are generally for the children of foreigners and the like and are very expensive. However, he indicated that there is a school quite nearby to the mother's residence which gives lessons in English and is much cheaper.

There was no further evidence given about this alternate school and it is unknown precisely what age children it takes or whether Elizabeth would be accepted.

Whilst there are other nearby schools their lessons are given Khmer, a language largely unknown to Elizabeth and whilst she will undoubtedly be able to learn it over some period, the mother's case acknowledged the importance of schooling being conducted in English at least for the immediate future.

Consequently, I find that it is unlikely that Elizabeth will be able to attend the International School or schools in Phnom Penh which are taught in English but may be able to be enrolled in the nearby English language school mentioned. Nevertheless, this aspect of the matter causes me some real concern and is one of a number of uncertainties that exist in relation to Elizabeth's future in Cambodia.

Housing

The mother's intention as to where Elizabeth and she will live in Cambodia has changed throughout the course of these proceedings.

The position in front of me was that she and Elizabeth would return to live with the grandmother in the house that the latter now owns next to the house of Elizabeth's step grandfather. Photographs of this residence are contained in the first five photographs annexed to the abovementioned report signed by Mr Mam Daro. The balance of the photographs show the step grandfather's factory and include one photograph of his own home located next thereto.

As indicated, it would appear that the grandmother now owns her residence which was described by Mr Pheakdey as being located in a "well built street" and that the people nearby "have a high standard of living". He also said that it is close to shops and "other facilities".

It was the grandmother's evidence that she would move into the step grandfather's residence of a night so that Elizabeth would have her own room.

The evidence as to who lives in the step grandfather's house next door, which was referred to as the "big house", was a little unclear. He apparently lives there with his first wife and a number of members of his family including some of his grandchildren. In addition, quite a number of the workers from his factory also live in this residence. In total, around twenty five persons apparently live in this house.

Overall, the evidence establishes on the probabilities that Elizabeth will have adequate housing in her grandmother's home, however, the situation may change somewhat should the step grandfather die.

Medical Support

Elizabeth needs to be reviewed on a reasonably regular basis in relation to the heart operation which she underwent successfully sometime ago. She also needs specific medication.

The evidence before me as to the latter is that it is freely available without prescription at pharmacies nearby to where the mother intends to live.

As to the former, Mr Pheakdey, who himself has almost completed a seven year medical degree, described the "provincial referral hospital", which is about one kilometre away from Elizabeth's intended residence, as providing "all types of services, quite good services" but that if a "heart patient" is involved they would probably be referred to one of the major hospitals in Phnom Penh.

Whilst the level of medical care available generally in Australia is probably of a higher standard than that in Cambodia, this is not the test and I am satisfied on the probabilities that Elizabeth's need in this regard would be adequately met if she returned to Cambodia.

General Parenting Capacity

When Elizabeth first arrived in Australia with the mother, the evidence establishes that she was in generally good health.

Dr Lennings in his evidence before me agreed with Ms Goodchild that he had no concern about the mother's general parenting capacity and I have reached a similar conclusion despite her error of judgment involved in bringing Elizabeth into the country in the circumstances discussed. As described, the mother has made significant improvements in her life and I am now satisfied that she would be a good mother to Elizabeth if she is returned to her.

Section 90(6)(f) - The Risk to the Child or Young Person of Psychological Harm if Present Care Arrangements are Varied or Rescinded

Generally speaking, all parties accepted that this compulsory discretionary consideration was one of the major determinative factors in this matter.

In February 2007, Ms Emma Collins, forensic psychologist, interviewed the mother whilst she was in gaol. In addition, a two hour family visit between the mother and Elizabeth was also observed by Ms Collins in January 2007.

Ms Collins' report of 12 February 2007 was provided to the court then involved in her criminal committal proceedings for the purpose of assessing her relationship with Elizabeth "and the impact of her ongoing incarceration upon this relationship". In the concluding paragraph of her report (Tab 13), Ms Collins opined as follows:

"In terms of (the mother's) relationship with her daughter, a lengthy separation will further destabilize their bond, given the already unstable attachment between mother and daughter. Further, her daughter will develop an increasing cultural detachment commensurate with a lengthy absence from her family and cultural background."

In April 2007, the Department of Community Services requested Teresa Lindfield, clinical psychologist, to conduct a "document review" of certain materials and provide an opinion in relation to Elizabeth's contact with her mother. No interviews were conducted. Ms Linfield reviewed the material set out at page 1 of her report of 10 April 2007 (Tab 9) and made various recommendations as to contact noting "that the issue of (Elizabeth's) long term placement has not been addressed by me...".

In August 2007, Sarah Armstrong, a social scientist with experience in providing advice to out of home care providers and the Department of Community Services in the fields of adoption, inter-country adoptions and out of home care, was requested by the Legal Aid Commission of New South Wales to prepare a report upon, inter alia, the "likely impact on (Elizabeth) of separation from her mother and her extended family in Cambodia" and the "effect on a child of placement with a family of a different culture and of dislocation from her cultural group". Ms Armstrong's qualifications, letter of instruction and report of 9 August 2007 are annexed to her affidavit of 12 December 2007 (Tab 21).

Ms Armstrong referred to her work as the editor of "The Colour of Difference: Journeys in Transracial Adoption" in which she documented "reports by significant numbers of intercountry and local transracial adoptees about their struggles to establish a sense of racial identity". She stated that should the duration of foster care extend over months or years "the challenge of a carer and DOCS must be to ensure that their identity is able to form in a healthy way, and part of this should be that they are able to maintain a close, meaningful relationship with their mother".

Ms Armstrong also emphasised the importance of the "foster family's attitude to the child's race and their active attempts to involve themselves in the child's culture (which) may be the key factor in the placement being viewed as positive by the child later in life". She went on to state that children "placed transracially have been shown to fare better if they are placed in a family with other children from the same or a similar background, and less well when they are placed as the sole child of that culture".

Ms Armstrong concluded that "despite the current placement providing a safe and caring environment for (Elizabeth) they are less likely to be able to provide authentic links with the Cambodian community and risk isolating (Elizabeth) from her culture".

As Ms Armstrong noted that the reason for removing Elizabeth from her mother's care "was based entirely on the circumstances of the offence committed and there is no evidence that (Elizabeth) was otherwise at risk...", she concluded it "must be in (Elizabeth's) best interests for a planned return to her mother's care to be investigated should the timeframes enforced by her mother's gaol sentence reasonably allow for this".

Whilst it is a little unclear from Ms Armstrong's affidavit and the materials annexed thereto, it would appear that she interviewed the mother whilst in gaol and may have made further observations of her during contact with Elizabeth. She did not interview or attend upon the home of the foster carers.

As mentioned above, Dr Lennings performed his first assessment, involving interviews with all relevant parties, in October 2008 leading to his first report of 21 October 2008 (Tab 38). Dr Lennings discussed the reports of Ms Collins, Ms Linfield and Ms Armstrong.

In paragraph 66 Dr Lennings, when considering his "formulation", stated that a "genuine issue arises in terms of what is considered as the best interests of the child". After a lengthy discussion involving such issues as welfare and culture and remarking that "there are a number of imponderables", his conclusion is contained under the heading "Recommendations" at paragraph 76 of his report which reads as follows:

"My overall view is that restoration needs to be seriously considered. From a purely child focused perspective I think that the child's interests would be best preserved in the medium term (that is up until the latency period of childhood (ages 8 to 11 years)) by being in the care of her foster-parents: there would be greater access to welfare, health, medical, educational opportunities and there is no doubt that Elizabeth is in a caring, loving and stable family unit. However, I think that as Elizabeth ages the benefits of this medium term position will gradually erode and the possibility is that by her adolescent years Elizabeth will become rebellious and will consider that she has been stolen from her parents and it may indeed lead to quite a difficult adjustment for her. I think that if the court can be persuaded that the mother is able to preserve a reasonable lifestyle and a reasonable level of material support for her child then the long-term identity interests of Elizabeth should prevail and it will be best for Elizabeth to be returned to her mother."

By the time of Dr Lennings second report of 28 February 2010 (Tab 54), the mother had been released from prison and in preparing same he conducted further interviews with all relevant parties. In this report, Dr Lennings also undertook "an additional literature review" of a number of studies and articles concerning, inter alia, "out of country adoptions". After doing so at paragraph 65, Dr Lennings states:

"Two possibilities arise from considering the above research. The first is that maintaining contact with the mother and her culture will increase the likelihood that Elizabeth will feel that she has been estranged from her natural identity. On the other hand maintaining such contact may decrease the likelihood because Elizabeth will feel less challenged and less need to go in search of her identity. Regrettably it remains an exercise in crystal ball gazing to say what path Elizabeth will take, other than to note there remains some evidence to suggest that she does have an increased risk of a placement breakdown in adolescence as a function of her out of country status."

Dr Lenning's opinion as expressed in the final few pages of his second report reveals him to be somewhat in two minds as to what he believed was best for Elizabeth from a psychological and psychiatric perspective. He states that it is "hard to come to a view as to what my recommendations should be", although he seems to slightly favour restoration of Elizabeth to her mother. Nevertheless, he is clearly uncertain as to the long term situation. At paragraph 69 he reveals this uncertainty as follows:

"It was argued in my first report that Elizabeth's welfare benefits are most clearly established by remaining in Australia and that in the short and medium term her psychological benefits are also maximized in Australia as it means she will not have to face the prospect of having her primary attachments disrupted (inclusive of her relationship with Julie). It was also argued in my first report that it was possible that her psychological benefits would be least served in the long term by remaining in Australia. Despite all my reading and the re-assessment I am unable to operationalize this formula beyond identifying some simple risk factors. The critical risk factors are the findings that out of country adoptions do have reasonably high compared to non adopted children of placement breakdown (5 to 6 times higher), and that being a long term fostering increases such risk again (compared to being adopted). I cannot provide a set of risk factors that are capable of predicting with any confidence whether Elizabeth will be among the group of out of country children who experience adolescent crisis and for which the placement breaks down or becomes so severely challenged that mental health services are required to support it. I also cannot forsee if her adjustment in Cambodia will be too severely challenged by her sense of loss of (the foster carers)) although I do believe that over time she will recover from such loss. Although the (foster carers) feel that Elizabeth will experience strong cultural challenge, I think she is still of an age were she will integrate reasonably well in Khmer culture."

By the time Dr Lennings gave evidence before me, having been updated by the provision of certain information as discussed, his overall opinion, while still remaining, as he put it "split" (T351.7), now seemed to slightly favour Elizabeth remaining in her current foster situation or at least being unable to express any concluded view. When asked to describe what developments had occurred in his thinking over more recent times he gave the following evidence (T351.45 - 353.20):

"A. The primary developments are simply time your Honour. Elizabeth has been in the family of (the foster mother) for most of her conscious life. We are now talking about what would be a really significant shift for her, irrespective of some compensations for that shift,.....but nonetheless it is very difficult to think about the impact of a child of taking her away from what she would regard, to the best of my knowledge anyway, what she would regard as her family now. It is a very big thing to do. As I said there are compensations that would help manage some of that but, nonetheless, it is a pretty huge shift.

Q. At one stage earlier on when the situation was different you seemed to slightly favour restoration?

A. Yes.

Q. Does that mean that the factual changes that have occurred since then have slightly altered your opinion?

A. Well I think the passage of time has simply increased the burden on Elizabeth making the adjustment. She is probably making the adjustment but it has certainly increased the burden on her. Then you have to consider the implications that come from making that adjustment when we are talking about having to make a cultural change as well. I don't know whether the mother will stay in Australia or not, I don't know what the implications might be for the various appeals that are going on as I understand it for migration status, but you have to consider not only making the shift out of one family into another but the environment in which that shift would take place. I think when you put all of those together the head part of me is saying it is becoming a very difficult situation for Elizabeth to negotiate despite the fact that there is love and there is care and there is demonstrative love and demonstrable care on the part of the biological mother to help manage that transition.

Q. Have you been made aware that this Court case is working on the basis that Elizabeth's mother will be deported on all the probabilities but that may take up to a year to occur. In other words if there was restoration there would appear to be sufficient time for that transition to occur. Have you been made aware of that?

A. I am aware of that today yes. My difficulty is how to factor all that information in but obviously the longer if a transition would take place and if that transition were to take place with a long lead time before return to Cambodia then that would increase the opportunity to moderate the shock that would take place for Elizabeth removing from one family to the other, particularly if there was able to be a gradual period in which time those attachments could be transferred. I just don't know but certainly the longer the time the easier the transition would be.

Q. I gather factoring that in you are still of the view you have expressed in the last few minutes?

A. It still would be a huge shock.

ANDERSON

Q. For the benefit of his Honour and perhaps to make it clear, when we are talking about attachment we're talking about from the child's point of view who she sees as being her primary figure to receive support and a secure base?

A. Yes, well in this particular instance I am including more than just (the foster mother) in that attachment, I am thinking of the relationship she would have with (the foster mother) with the extent to family, particularly with Julie. I am thinking of the relationship that Elizabeth has with not just (the foster mother) but with (the foster mother's) family. Kids don't exist in one attachment, you know, there is like an attachment system and there are various people who are incorporated into that attachment system so it is not just talking about (the foster mother) versus mum, I am talking about the attachment system changing.

Q. To break that whole attachment system you say would be likely to cause trauma for Elizabeth?

A. If the break was yes, it would be likely to cause trauma for Elizabeth. The slower the break, the more transition time that can be introduced, the more perhaps you could moderate that trauma but there is no doubt that any child who has been living most of her conscious life, in fact in reality in all of her conscious life she would have hardly any access to memories before 20 months, that the identity, meaning, the way in which she interprets the world, sees the world will be through that family she has been living in, in the main. So removing that from somebody is important, something that has to be considered seriously."

Whilst accepting that "inter country cross-cultural adoptions... have an increased risk of breakdown in adolescence", Dr Lennings said that this risk "is difficult to quantify" and that "the majority of such placements work". However, he added that the risk of such breakdown is greater in foster care situations than adoption (T355.6 - 13).

Whilst agreeing that his task involved "some degree of crystal ball gazing" he explained that he had more confidence in predicting short to medium term effects upon Elizabeth than longer term effects in the following terms (T357.15 - 19):

"A.... We have more confidence in looking at short term and medium term effects than in guessing what the long term effects will be. So we feel, I would feel more confident about predicting adjustment issues for Elizabeth for the next one to two years than I would for predicting what her adjustment will be in adolescence."

Upon the assumption that if Elizabeth is returned to her mother they will both then return to Cambodia Dr Lennings was then asked as to whether the balancing of short, medium and long term risks resulted in him being of the view that Elizabeth should remain in her current foster situation to which he responded (T358.1 - 10):

"A. I've tried to be careful in my previous report not coming out with a recommendation one way or the other because of the dilemma that I experience. I think, on balance, it will be harder for Elizabeth to leave than to stay for this period of time that I'm more confident about foreseeing in terms of the short and medium term. I think I would be, I'm really reluctant to make a firm prognosis, make a firm prediction about what's actually going to happen over the long term in this situation but I think for the short and medium term certainly it would be, it's easier to see, I can be more confident about the advantages for Elizabeth to stay here than to return to Cambodia."

Dr Lennings kept returning to the length of time that Elizabeth has now been in foster care and the effect of removing her from that situation. For example, at (T358.50 - 359.9) he stated:

"A. ....I think there's been further developments in my thinking and I think that my view is that timing is the important consideration in this whole issue and particularly Elizabeth's relationship with her foster family. I think I remain in dilemma, I have a strong internal debate occurring where I'm still struggling to meld short and medium term versus long term issues as well as the emotional component of this as well. I think that I do have to accept though that the passage of time does have a meaning for the implications for Elizabeth if she were to be removed from her relationship with (the foster mother) and with Julie and the pets and school and the friends and all that other stuff that goes along with that".

Dr Lennings went on to state that "there's a significant issue in regards to attachment loss" and "if there was a major shift in her attachment system at this point" this "would then raise her vulnerability to psychological distress and disorders" (T359.21 - 29).

In like vein Dr Lennings stated that consequences of an attachment breakdown for Elizabeth "would certainly be an increased vulnerability to mood disturbance, whether it be anxiety or depression" (T361.21 - 30).

Even with a lengthy transition phase from the foster mother back to the mother, Dr Lennings was of the view that "the most likely outcome...would be a terrible shock" (T363.35 - 40).

Dr Lennings further stated that should these further vulnerabilities eventuate and turn into "psychological disturbance" they will be "difficult to overcome because...she has lived all of her conscious life...in one family and it will be a big shock, a huge adjustment for her to have to make" (T364.27 - 37).

Dr Lennings' dilemma as to predicting the situation in Cambodia as it may transpire despite the mother's love and support, was revealed by him in the following passage (T364.44 - 365.14):

"I don't know what will happen when she goes there, I don't know whether her language competence will move quickly. I don't know whether other people in the family will be as accepting of her once they realise they can't communicate with her as would be desirable. So, I just don't know. I can say quite categorically there will be an adverse reaction. How long that adverse reaction remains and whether it mutates into something terrible down the line, that remains the imponderable, that remains the difficulty for me in being able to be really clear about this. I suspect it will be a huge shock to her and it will be very difficult for her to adjust to. That is the reason why I feel more comfortable with prioritising the short and medium term stuff, but I am not going to say, I cannot bring myself to say she will recover from that and go on and have a reasonably good life. Nor will I say that she won't. Both options are available to her and I cannot see enough to know how it will play out for her. That is one of the problems, it is the uncertainty of it all. One of the things we do in child protection is when we have uncertainty we try to look for that bit which we know is certain. We tend to focus on the short and medium term because we know the situation here is certain for her and we don't know what is going to happen there. That is one of the rules that I have in child protection, rightly or wrongly, if I have to choose between a certain benefit and uncertain benefit I will choose the certain benefit but it is a terrible thing to have to say in this situation."

Dr Lennings also made it clear that even if the mother does her best, which he has always thought she would, there are a number of matters which are outside her control and which cannot be predicted which may lead to "adjustment issues becoming more problematic" (T369.20 - 42).

When asked to consider the information that he was aware of in relation to identity and cultural affiliation for children who have been removed from their culture and to opine as to the impact thereof on their long term adjustment, Dr Lennings stated (T373.46 - 374.9):

"...In terms of the data available that I've been able to read, in regards to the cultural adoption, there's got to be some impact to it. It's very hard to judge. I quoted some Dutch studies in my second report which suggest that there might be as much as a five or six times increase breakdown in families where children come from one culture into the other, bearing in mind as I said that those studies which were European based studies, the ethos at that time was that there would be no relationship between the child being brought into the adopting family and any contact with the adoptive family. In the more later studies which have looked at inter cultural adoption and cross cultural approaches in foster families, there is less concern that there is some protective element gained from having some kind of awareness with the parents and with the culture. The studies from the aboriginal community are marked by a very strong context in which, well just gross exploitation took place, they are not easily comparable to this kind of situation."

Dr Lennings ultimately seemed to be in a position of being unable to predict with any certainty Elizabeth's longer term future from the perspective of his specialty whether she remained in her current foster placement or is returned to her mother. Both may or may not lead to significant problems developing depending upon the uncertainties in life. Ms Goodchild submitted that should Elizabeth be transitioned back into the care of the mother there "is no evidence before the court...that the child will suffer temporary or permanent psychological harm". Dr Lennings' evidence was that restoration to the mother would "definitely" cause "psychological harm in the short term" (T376.10).

Other Matters

Various other matters were raised by the defendants in addresses and in their written submissions going to a number of unknowns relating to Cambodia. These included such matters as the use of corporal punishment and the position and role of female children in the family.

The lack of any evidence regarding governmental oversight of Elizabeth's position once she returned to Cambodia was raised, as was the alleged probable unenforceability in Cambodia of any orders or undertakings that the court might be persuaded to make or receive.

The defendants did not present any evidence themselves as to these matters and, in effect, were suggesting that I should reach some adverse conclusion to the plaintiff in the absence of such evidence. I am not prepared to do so. The defendants could equally have led evidence as to these matters if they wished.

CROC

Ms Goodchild referred me to numerous articles contained in CROC. Such articles include Articles 3, 5, 7, 8, 9, 18, 21, 25, 27, 29 and 30, to all of which I have had regard. I have had similar regard to the preamble itself which emphasises, inter alia, the family as being the "fundamental group in society...".

In particular, Article 7.1 which refers to the right of a child "to be cared for by his or her parents" gives weight to the importance of parental relationship in a child's safety, welfare and wellbeing which is relevant to the application of the paramountcy principle contained in s (9)(1) of the Act. Likewise, other rights and duties referred to, for example in Articles 3.2 and 5 and 9.1, indicate that weight is to be given to maintaining the bond between children and their natural parents and that a separation should not occur unless it "is necessary for the best interests of the child".

Articles 8(1) and 29 also reinforce the significance of the issue of cultural identity when exercising the discretion currently under consideration. Further, s 9(2)(b) of the Act also stipulates that subject to s 9(1) in "all actions and decisions made under this Act...that significantly effect 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".

Consideration

My determination of this matter has been far from easy. I have great sympathy for the mother. Nevertheless, in reaching my decision the safety, welfare and wellbeing of Elizabeth is paramount. As I have also said, this matter is not a contest between the foster mother and the mother, nor a comparison of general standards of living between Cambodia and Australia.

I have been assisted by the detailed assessment of some of the issues raised in this case by Brereton J, albeit in the adoption context, in Director-General, Department of Community Services v D [2007] NSWSC 762. I have also benefited from reading Huntley JA's review of various English authorities in Re an Infant K (1973) 1NSWLR 311, accepting, of course, that his Honour and those authorities were dealing with different legislation in different times.

Whilst there are several uncertainties and concerns as to such matters as financial support, housing, and schooling, these are not decisive. The undoubted benefit of being returned to her own mother in her own culture, in my view, overcomes any such uncertainties and concerns.

However, I am persuaded on the balance of probabilities that when the psychological and psychiatric consequences of restoring Elizabeth to her mother are taken into account, the overall balancing of Elizabeth's safety, welfare and wellbeing which are paramount pursuant to s 9(1) of the Act means that, subject to considering s 80 of the Act and the application to vary the current orders as discussed below, the mother's summons should be dismissed.

Elizabeth has spent almost her entire life living with the foster mother who is clearly now her primary attachment figure. According to Dr Lennings, she probably has no memory of her life in Cambodia. She is now six years of age, doing well at school where she has several friends. She is emotionally very happy and stable. She has a good relationship with Julie and regards her as an older sister.

I accept Dr Lennings' opinion that if she is removed from the current placement, even with an adequate transition period, she will be greatly shocked and distressed for a considerable period and will suffer undoubted psychological harm from which she may or may not recover.

In reaching this conclusion I fully appreciate the loss of parental bond and culture that Elizabeth will suffer. I have taken into account the various provisions of CROC and, inter alia, the matters referred to in s 9(2)(b) of the Act. I appreciate that my decision might lead to significant psychological problems for Elizabeth in adolescence.

Further, if I am wrong in my interpretation as to the applicability of s 83(7) of the Act in this appeal, I would have found that there was no realistic possibility of Elizabeth being restored to her mother having regard to Elizabeth's circumstances pursuant to s 83(7)(b)(i) and I would have reached the same conclusion despite the mother having, in my view, satisfactorily addressed the issues that led to Elizabeth's removal in the first place per s 83(7)(b)(ii). In this respect I note that the provisions of s 83(7)(b)(i) and (ii) are joined by the word "and".

Ms Goodchild also argued in her final set of written submissions that it would be "open to this court" to determine "that the Department is now estopped" from arguing that there was no "realistic possibility of restoration" due to it contending otherwise in 2009 before the learned Children's Court Magistrate. I decline to do so. Questions of issue estoppel are not appropriate, in my view, in proceedings under the Act where the "safety, welfare and well-being" of the child are paramount. A similar view has been reached in proceedings under the Family Law legislation: Rice and Asplund (1979) FLC 90-725.

Section 80

Before making a final order which the dismissal of this appeal will constitute, pursuant to s 80 of the Act I must consider the care plan presented by the Director-General dated 19 May 2011 (Tab 79). This revised care plan takes into account the death of the foster mother's mother as required by the Court of Appeal's decision remitting this matter to me.

Such care plan addresses the death of the foster mother's mother and is adequate in the circumstances. Such care plan also covers issues of permanency planning and if I am wrong in relation to my interpretation of s 83(7) of the Act, I expressly find that such permanency planning has been appropriately and adequately addressed in relation to Elizabeth.

Section 90(1) - Variation of Care Order

Mr Anderson sought leave, should the appeal be dismissed, to vary the current care order to remove reference in it to the foster mother's mother.

The other defendants have not opposed the granting of such leave. The court specifically sought Ms Goodchild's submission as to this question after reserving its decision as she did not address on it at the hearing. In her written submissions in reply her response on this issue is as follows:

"If the court refuses to grant the plaintiffs application and proposes to grant the Director Generals application for a variation of the order, the court then must consider a care plan (section 80) and section 79(3) prior to making a final order allocating parental responsibility. The court will need to have considered regard in these proceedings to matters relevant for the purpose of section 9(2)(c)."

As to s 80 of the Act, I have already considered the care plan in question. As to Ms Goodchild's argument that s 79 of the Act applies to the variation sought and therefore pursuant to s 79(3) I must give particular consideration to s 9(2)(c), and not permit the variation sought unless any other order would be insufficient to meet Elizabeth's needs, this seems to contradict the Court of Appeal's earlier decision in this matter that "Section 9(2)(c) has no effect in preservation of existing care assessments in the present circumstances" and that its "prescription is confined to when it is necessary to take action in order to protect a child and young person from harm...": see Giles JA at [79]. That would not appear to be the case here but if it were, the provisions of s 79(3) and s 9(2)(c) would not have led me to a different conclusion as to whether or not to grant leave.

Pursuant to s 90(2), the court may grant such leave if it appears "that there has been a significant change in any relevant circumstances since the care order was made...". The death of the foster mother's mother clearly amounts to such a significant change in relevant circumstances.

Before granting such leave the court must also take into account the matters referred to in s 90(2A), which to some degree, overlap with the matters considered above. Having done so, I grant same for the purpose of the variation sought.

Orders

I make the following orders:

(1) Leave is granted to vary the orders of the Children's Court to remove reference to the foster mother's mother.

(2) Subject to order (i) the decision of the Children's Court is confirmed.

(3) The plaintiff's summons is dismissed.

**********

Decision last updated: 23 January 2013

Medium Neutral Citation:	Re: Elizabeth [2011] NSWDC 245
Hearing dates:	8, 10, 11, 12, 15, 16, 17, 18 August 2011
Decision date:	21 September 2011
Before:	Letherbarrow SC DCJ
Decision:	Summons dismissed
Catchwords:	CHILDREN AND YOUNG PERSONS - Children and Young Persons (Care and Protection Act) 1998 (NSW) - mother's appeal pursuant to s 91 - safety, welfare and wellbeing of the child - burden of proof - is Act premised on goal of keeping families together - realistic possibility of restoration - use of the United Nations Convention on the Rights of the Child s 90(6) considerations - age of the child - length of time in care of present care givers - wishes of the child - attachment issues - adequate standard of care - risk of psychological harm - consideration of care plan - leave to vary current parental responsibility order - mother's summons dismissed
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998, Criminal Code Act, 1995 Supreme Court Act, 1970
Cases Cited:	Re Sophie (No 2) [2009] NSWCA 89, M v M [1988] HCA68; 166 CLR 69, L v District Court of New South Wales [2011] NSWCA 43, Director-General Department of Community Services v D [2007] NSWSC 762, In the matter of Campbell [2011] NSWSC 761, Re Tracey [2011] NSWCA 43, Re an Infant K (1973) 1NSWLR 311, Rice and Asplund (1979) FLCÂ¶ 90 - 725, Re Saunders and Morgan & Anor v Department of Community Services (12/12/2008, NSWDC, unreported, Johnston DCJ)
Texts Cited:	UN General Assembly, Convention of the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3, available at: HYPERLINK " [accessed 18 January 2013]
Category:	Principal judgment
Parties:	Suppression of the parties' details. Suppression of details of solicitors acting for parties.
Representation:	Suppression of the parties' details. Suppression of details of solicitors acting for parties. Suppression of the parties' details. Suppression of details of solicitors acting for parties.
File Number(s):	2009/335531
Publication restriction:	Suppression of the parties' details. Suppression of details of solicitors acting for parties.