Re M (No 6)

[2016] NSWSC 170

Supreme Court

New South Wales

Medium Neutral Citation:

Re M (No 6) [2016] NSWSC 170

Hearing dates:

12 – 14 October 2015

Date of orders:

03 March 2016

Decision date:

03 March 2016

Jurisdiction:

Equity

Before:

Robb J

Decision:

The court will reject the plaintiff’s appeal on her application for leave to apply to rescind or vary the care orders in so far as they deal with parental responsibility for the relevant children, but in relation to the issue of whether the appeal should be allowed to give leave to apply to rescind or vary the care orders in so far as they deal with the plaintiff’s access to the relevant children, the court invites the parties to make further submissions on the issues raised in pars 194 and 195 below, as explained in related paragraphs.

Catchwords:

CIVIL PROCEDURE – appeal from the Children’s Court regarding care orders made – appeal application dealt with by District Court judge – application for extension of time to commence appeal under s 91 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“Care Act”) – Rule 50.3(1)(c) of the Uniform Civil Procedure Rules 2005 (NSW) considered – whether granting an appeal out of time would cause unfairness – held leave limited to delay – held discretion to grant leave be exercised in this instance

CHILDREN – judgments and orders – application for leave for the rescission or variation of care orders under s 90 of the Care Act – children taken into care – Children’s Court orders granted parental responsibility to children’s fathers – mother sought leave to appeal for children to be restored in her care – whether or not there is a realistic possibility of restoration of a child or young person to the custody of the mother – whether there was significant change in relevant circumstances in considering leave – consideration of matters identified by mother – held mother has not demonstrated that she has full insight into her situation – held insufficient time to demonstrate consistent good parenting at the time of hearing – held none of the matters that the mother identified as being a significant change in relevant circumstances – held change in access to child as a further consideration – held further consideration needed for mother’s access to the children and contact between siblings

  CIVIL PROCEDURE – application for leave for the rescission or variation of care orders – conditions of grant of leave considered – whether leave to appeal may be given only to certain aspects of a care order –
whether leave should be subject to conditions – whether court has power to defer on a final ruling – invitation to counsel to provide further submission – discretion to grant leave not exercised in this instance

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW)
Children and Young Persons (Care and Protection) Regulation (NSW)
Children’s Court Act 1987 (NSW)
Children’s Court Regulations 2014 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

George v Children’s Court of New South Wales [2003] NSWCA 389; (2003) 59 NSWLR 232
In the matter of Campbell [2011] NSWSC 761
In the matter of Troy [2010] CLN 2
Kestle, Susan v Director of the Department of Family and Community Services [2012] NSWChC 2
M v Department of Family and Community Services, unreported, 19 April 2013
M v Director-General, Department of Family and Community Services [2013] NSWCA 118
Re M; Application of YA [2014] NSWSC 1736
Re M v Department of Community Services (No 3) [2013] NSWSC 552
Re M (No 4) [2013] NSWCA 97
Re M (No 5) [2013] NSWCA 253
Re Tina [2002] CLN 6

Category:

Principal judgment

Parties:

BM (plaintiff)
Department of Family & Community Services (first defendant)
MB (second defendant)
MS (third defendant)
RM (fourth defendant)
HM (fifth defendant)
ZM (sixth defendant)

Representation:

Counsel: T Allen (first defendant)
P Braine (second defendant)
R Dart (third defendant)
C Wilson (fourth, fifth and sixth defendant)

  Solicitors: plaintiff – self represented
NSW Crown Solicitors Office (first defendant)
Rowley & Associates (second defendant)
Legal Aid NSW (third defendant)
Pogson Cronin (fourth, fifth and sixth defendants)

File Number(s):

2014/369121

Judgment

Introduction

1. The plaintiff in these proceedings, who I will call BM, has at all times acted and appeared for herself on this application.

2. BM is the mother of five children; DM born 25 September 1997 (aged 18), JM born 15 December 1998 (aged 17), RM born 17 July 2007 (aged 8), HM born 27 February 2009 (aged 6) and ZM born 4 March 2011 (aged 4). The present application only directly concerns the three youngest children.

3. These proceedings ultimately stem from the fact that, on 30 November 2011, all five children were removed from the care of BM by officers from the Department of Family and Community Services (the Department).

4. The five children have three separate fathers. DM and JM have one father, but as this application does not concern those children, it is not necessary to refer further to their father. The father of RM and HM is MB, and the father of ZM is MS.

5. BM commenced these proceedings by summons filed on 15 December 2014. Primarily, BM appeals under s 91 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care Act) from a decision of the Children’s Court refusing an application by BM under s 90 of the Care Act for leave to apply to rescind or vary care orders made in respect of RM, HM and ZM.

6. The relevant care orders were made by Her Honour Judge Olsson SC on 19 April 2013: see M v Department of Family and Community Services, unreported.

7. The appeal comes to this court because the Children’s Court was constituted by Judge Johnstone, the President of the Children’s Court, and was accordingly a Presidential Children’s Court: see s 22A of the Children’s Court Act 1987 (NSW) and reg 5 of the Children’s Court Regulations 2014 (NSW).

8. The first defendant is the Secretary, Department of Family and Community Services. Mr Allen of counsel appeared for the Secretary. The second defendant is MB, for whom Mr Braine of counsel appeared. MS is the third defendant, for whom Ms Dart of counsel appeared. Mr Wilson of counsel appeared on the instructions of the independent legal representative of the three youngest children, who were respectively named as the third to sixth defendants.

Relief sought

9. By her summons filed on 15 December 2014, BM sought the following relief:

1.   Leave to appeal outside the timeframe and appeal the decision of the President of the Children’s Court – Judge Johnstone.

2. Leave to hear (sic) section 90 to rescind/vary orders of the District Court the effect being that the children [RM, HM and ZM] be restored to their mother, [BM].

3.   Leave if needed to put on evidence by USB stick as an exhibit.

4    Costs of travel and accommodation for contact visits for [BM, RM, HM and ZM] to visit [DM and JM] and/or costs for [DM and JM] to visit [BM, RM, HM and JM].

10. BM has not filed any document that articulates the grounds for the relief that she seeks, although she has made the submissions to which I will refer below.

11. Leave to appeal out of time is required in this case because Judge Johnstone refused MB’s application under s 90 of the Care Act on 10 July 2014, and MB filed her summons more than five months later. Regulation 5 of the Children’s Court Regulations 2014 (NSW) has the effect in this case that the rules governing appeals to the Supreme Court apply to the appeal. Rule 50.3 of the Uniform Civil Procedure Rules 2005 (NSW) required BM to commence her appeal within 28 days of 10 July 2014. Rule 50.3(1)(c) empowers the court to allow BM further time to commence her appeal.

12. The Secretary, MB and MS initially opposed the leave sought in par 1 of the summons being granted. The Secretary abandoned the Secretary’s opposition to leave being granted, and MB adopted the same position in his final written submissions.

13. It does not appear that MS has withdrawn his opposition to BM being given leave to appeal out of time. None of the parties who initially opposed leave being granted took any step to have that issue determined soon after the summons was filed, so that time and expense would be avoided if the court declined to give BM leave to commence her appeal out of time. It will be necessary for me to deal with the leave issue, but it will be convenient for me to defer that exercise until I have considered the merits of BM’s appeal. As this issue must be determined after a hearing on the merits, it would be highly unsatisfactory for the court simply to decline the application for leave to appeal out of time. Further, the course I propose to take will be more readily understood if it is dealt with after I have considered the merits of BM’s application.

14. The leave sought by BM in par 2 of the summons is the primary relief sought on this application.

15. The leave sought in par 3 has already been dealt with at the stage when BM sought to tender the information on the USB stick. That tender was substantially rejected as BM had not given the defendants access to the information before the commencement of the hearing, which was contrary to an earlier direction made by the court. BM was only permitted to tender a small amount of the information.

16. The claim in par 4 of the summons may be dealt with in a summary way. BM has not applied to the Children’s Court for that relief, but had she done so, that court would not have had power to grant it. That has been conclusively established by the decision of the Court of Appeal in George v Children’s Court of New South Wales [2003] NSWCA 389; (2003) 59 NSWLR 232. The entitlement to this relief does not arise for consideration on an appeal to the Supreme Court from the refusal of leave by the Children’s Court under s 90 of the Care Act. BM did not put her case on the basis of the Supreme Court’s parens patriae jurisdiction, and in my view it clearly would not be appropriate for the court to make the orders sought on that basis. BM did rely upon s 23 of the Supreme Court Act 1970 (NSW), under which the Supreme Court has all jurisdiction which may be necessary for the administration of justice in New South Wales. Relevantly, that section does not empower the court to grant whatever relief that it thinks may be appropriate in a particular case, and it does not entitle the court to impose obligations on parties when those obligations do not otherwise arise as a matter of law. The section does not give the court jurisdiction to order the Department to pay the costs of facilitating any access or contact orders that may be made by the Children’s Court.

17. The court also has before it a notice of motion containing further relief sought by BM. I will not set out the orders sought fully, but in summary, BM asked for an injunction to prevent ZM being driven in the front seat of any vehicle (par 1); mandamus against the NSW Police requiring them to fine any person driving ZM in the front seat of the vehicle if they witness that event (par 2); prohibition against the Department from continuing to work against BM having her children restored into her care (par 3); mandamus against the Department to work with BM towards her having unsupervised time with her children (par 4); mandamus against the Department to act on risk of harm reports received in relation to ZM and to work with BM towards ZM being restored into her care either part-time or full-time (par 5); and interim orders for a minimum of two hours per week supervised contact between ZM and BM (par 6).

18. The notice of motion was the subject of directions made by Hallen J sitting as duty judge on 2 September 2015. It appears that BM had forwarded the draft notice of motion to the court by email. Hallen J stood the notice of motion over to the hearing. The existence of the notice of motion was noted at the hearing (specifically by counsel for MB) but it has not been formally filed.

19. BM has sought the relief claimed in her notice of motion without having regard to the issues that arise from her summons, and the jurisdictional limitations on the court’s power to grant the relief she seeks. BM has also not articulated a basis in principle for the making of the orders sought by her. In these circumstances, it is appropriate for the court to avoid being drawn into a complex and confusing, but ultimately pointless examination of the substantial amount of information that BM has put before the court, in articulating the reasons why the court cannot grant most of the relief sought in the notice of motion.

20. I treated BM’s claim for an injunction against MS to prevent ZM being driven in the front seat of any vehicle as being a matter before the court. It must be recorded that, even though my judgment on this issue was reserved, BM filed a notice of motion in the proceedings seeking an order that ZM not be driven by MS or any third party in the front seat of any vehicle. The application was referred by the vacation judge to me, and I heard and dismissed the application on 3 February 2016, on the ground that the evidence did not support the making of the order.

21. In relation to par 2 of the notice of motion, I should say that there is no evidence that the New South Wales Police have in any way failed in their duty in respect of the circumstances in which ZM may have been conveyed in the front seat of any automobile. It is plain, however, that there is no basis for the court to make an order in the nature of mandamus in relation to how the Police carry out their duties in respect to the conduct of third parties.

22. Paragraphs 3 to 5 involve orders against the Department in relation to the implementation of its functions in relation to BM and her ongoing relationship with her children. Quite apart from the fact that there is no basis in the evidence for the court to consider that the Department is not fulfilling its responsibilities towards BM and her children in a proper manner, no legal basis has been suggested by BM that could justify the court in making the orders sought. The limited evidence on this issue suggests that officers of the Department made sensible suggestions to BM as to the nature of her long-term conduct that may be necessary if she was to have a reasonable chance of securing a satisfactory variation of the care orders, and such evidence as there is would suggest that BM did not embrace that advice.

23. I will say no more on this subject than that I would hope that the Department would remain open to providing assistance and guidance to BM, but it can hardly be expected to devote its limited resources to that aim if it does not appear from BM’s conduct that the exercise will be worthwhile.

24. The relief sought in par 6 would involve a variation to the care orders that are the subject of the present application. The question of whether BM should be given supervised contact time with ZM is one that will only arise if the court gives BM leave to apply for a variation of the care orders, and will be considered at the time that application is made. BM has not established that there is a legal basis for the Supreme Court to make an interim order as sought in par 6 on an appeal such as the present, but even if the court has power to make an interim contact order that involves a variation of the care orders, the manner in which the appeal that is now before the court has been conducted, and the evidence that is before the court do not make this application an appropriate one for any change to the care orders made by Olsson DCJ.

25. I will return to a consideration of the question of contact between BM and ZM below, when I consider the merits of BM’s appeal.

26. BM was invited during the hearing to inform the court as to the precise orders that she was asking the court to make. BM handed up a document stating the relief she sought, which was marked for identification as MFI 1. The relief sought is:

1.   The mother undertakes to attend any and all courses or programs referred by the court and/or to enter into a parenting plan if required by the court.

2.   The children [RM and HM] to reside with their mother during the week from Sunday at 3 PM until Friday at 5 PM.

3.   The child [ZM] reside with the mother [BM] during the week from Sunday 3 PM until Friday at 5 PM.

4.   The children [RM and HM] to spend the first week of the first, second and third term holidays with their mother from Friday at 5 PM until Sunday at 3 PM.

5.   The children [RM and HM] to spend the second week of the first, second and third term school holidays with their father from Sunday at 3 PM    until Friday at 5 PM.

6.   The child [ZM] to live with the mother during the first week of the first, second and third term school holidays from Sunday 3 PM until Friday 5 PM.

7.   The child [ZM] to live with the father during the second week of the first, second and third school terms.

8.   The child [ZM] to live with his father every second weekend from Friday at 5 PM until Sunday at 3 PM.

9.   The child [ZM] to be restrained from being driven in the front seat of a vehicle at any time and/or (MS) to make undertakings that he not allow the child [ZM] to be driven in the front seat of a vehicle at any time.

10.   The child [ZM] to live with the mother every first weekend from Friday at 5 PM until Sunday at 3 PM.

11.   The children [RM and HM] to reside with the mother on the weekends three weekends a month from 5 PM Fridays until 3 PM Sundays.

12.   The father [MB] to have generous visiting rights and have contact with the children in Wagga once a month on dates as negotiated with the mother.

13.   Docs to pay costs of travel and accommodation and hire car for [RM, HM and ZM and BM] for twice per year including two weeks in the Christmas holidays for the purposes of sibling contact and contact with maternal grandmother as per the care plans.

14.   Docs to pay costs of travel and accommodation and hire car for [RM, HM and ZM] to travel to Adelaide or Robinvale a minimum twice per year.

15.   Docs to pay costs of travel and accommodation for [MB] to travel to Robinvale or Wagga Wagga for contact a minimum of twice per year.

16.   Docs to pay costs of travel for [DM and JM] to travel to Wagga Wagga for contact a minimum of twice per year.

17.   The children [RM and HM] to have contact with their father in Adelaide or Wagga or Robinvale for one week during the Christmas holidays as negotiated between the parents.

18.   At all other times the children [RM, HM and ZM] to reside with their mother.

27. The undertaking to which BM refers in par 1 is not a matter for the consideration of the court at present. It might possibly arise if the court gave BM leave to apply to rescind or vary the care orders, when that application came before the Children’s Court.

28. Paragraphs 2 to 12, 17 and 18 deal with questions of residence and access as between the children and their parents. Those are questions that will only arise when the Children’s Court considers whether the existing care orders should be rescinded or varied, if the court grants leave to BM to make that application as a consequence of the present appeal.

29. The relief sought in pars 13 to 16 would involve the court making orders that mandates the Department to pay various costs, without its consent. I have already explained above, by reference to the decision of the Court of Appeal in George v Children’s Court of New South Wales, and the limited nature of the issues that arise on the present appeal, why the court does not have power to make those orders.

30. The Secretary, MB and MS, and the independent legal representative on behalf of RM, HM and ZM, oppose all of the relief sought by BM.

Brief history

31. Although the present application is primarily concerned with events and circumstances that have occurred after Olsson DCJ made the care orders that are now in question on 19 April 2013, it will be appropriate to give some context to the proceedings by setting out the following brief history, which I have primarily taken from the initial submissions made on behalf of MS:

1. On 30 November 2011, all five children were removed from BM’s care by officers from the Department.

2. On 5 December 2011, the Department filed care applications with respect to all five children in the Children’s Court at Wagga Wagga.

3. The matter came before the Children’s Court at Wagga Wagga at first instance on 6 December 2011. On that date, an interim order was made placing all five children in the parental responsibility of the Minister for Family and Community Services on an interim basis.

4. On 12 December 2011, a finding was made by consent and without admissions that all five children were in need of care and protection. BM later sought to withdraw her consent.

5. Following a defended hearing before the Children’s Court at Wagga Wagga, Children’s Magistrate Sbrizzi accepted the assessment of the Director-General (as the office was then called, now referred to as the Secretary) that there was no realistic possibility of the children being restored to the care of BM, but there was a realistic possibility of each of the children being restored to the care of their respective fathers.

6. On 7 December 2012, on the application of BM, the Supreme Court stayed any order which had the effect of RM and HM living with their father, MB, pending determination of appeal proceedings before the District Court.

7. On 12 December 2012, Children’s Magistrate Sbrizzi made orders placing each of the children in the parental responsibility of their fathers, to the exclusion of BM.

8. On 12 December 2012, BM filed an appeal against the orders of Magistrate Sbrizzi in the District Court.

9. The appeal came on for hearing before Olsson DCJ commencing 8 April 2013 and was heard over nine days. On 19 April 2013, Judge Olsson delivered her reasons and made final care orders, which confirmed that each child was to remain in the parental responsibility of their respective father, to the exclusion of BM.

10. Following the conclusion of the District Court proceedings, BM has brought a number of proceedings in the Supreme Court and the Court of Appeal as follows:

11. Re M v Department of Community Services (No 3) [2013] NSWSC 552 – Rein J;

12. Re M (No 4) [2013] NSWCA 97 – Ward JA;

13. M v Director-General, Department of Family and Community Services [2013] NSWCA 118 – Basten and Barrett JJA and Bergin CJ in Eq; and

14. Re M (No 5) [2013] NSWCA 253 – Macfarlan and Ward JJA and Sackville AJA.

15. Each of these applications by BM was unsuccessful, and none of them has disturbed the care orders made by Olsson DCJ.

16. BM then brought three further applications to seek rescission or variation of the current care orders:

17. 25 June 2013 – dismissed on 11 July 2013.

18. 5 November 2013 – withdrawn on 12 November 2013.

19. 6 December 2013 – dismissed on 10 July 2014.

Relevant legal principles

32. This would ordinarily be an appropriate place to set out the grounds upon which BM puts her case for leave under s 90(2) of the Care Act, and the other relief that she seeks. Unfortunately, BM has not articulated those grounds or expounded them in a conventional legal manner. The only practical course available is for the court to attempt to deduce BM’s case from her evidence and submissions. That is a task best undertaken after I deal with the following matters.

33. Before I attempt to set out the basis of BM’s case based upon an analysis of her claim for relief, her evidence and submissions, it will be convenient, as a first step, to set out the legal principles that the court must apply, as this process will identify the issues that BM’s case must address.

34. All of the parties accepted that the relevant legal principles have been correctly and comprehensively, though concisely, set out in the judgment of Slattery J in In the matter of Campbell [2011] NSWSC 761. I respectfully agree with the parties, and will adopt and apply the principles enunciated by his Honour in what follows. I propose to set out the principles that are most relevant to the present case, and refer where appropriate to particular aspects of his Honour’s judgment.

35. As this is an appeal, it will be appropriate to first start with the provisions that govern the disposition of the appeal; then second, to consider the principles that were required to be applied by the Children’s Court in the matter under appeal; and third, to consider the underlying provisions in the Care Act that ultimately govern the orders that BM seeks to rescind or vary, if she is given the leave for which she applies.

36. At the outset, however, I respectfully adopt the description of the objects and principles of the Care Act set out by Slattery J at [32] and [33], and note in particular the requirement in s 9(1) that the Care Act is to be administered under the principle that the safety, welfare and well-being of the child or young person be paramount.

37. BM has appealed pursuant to s 91(1) of the Care Act, which allows a party to proceedings, who is dissatisfied with an order of the Children’s Court, to appeal to the District Court against the order, in accordance with the rules of the District Court. I have explained above that the present appeal comes to the Supreme Court because the Children’s Court was constituted in this matter by a judge of the District Court.

38. Under s 91(2) of the Care Act, the appeal is by way of a new hearing and fresh evidence, or evidence in addition to, or in substitution for the evidence on which the order was made, may be given on the appeal. Subsection (3) permits the court, instead of taking fresh evidence, to decide to admit as evidence the transcript of proceedings before the Children’s Court, and any exhibit tendered during those proceedings. In the present case, the court admitted a significant amount of new evidence, as well as many of the exhibits and the transcript of the proceedings in the Children’s Court. The court has, by reason of subsection (4), all of the functions and the discretions that the Children’s Court has under Chapters 5 and 6 of the Care Act. Section 91(5) of the Care Act expressly empowers the court to vary or set aside the decision of the Children’s Court.

39. As the appeal involves a rehearing, a question arose as to whether it was appropriate for me to have regard to the judgment of Johnstone DCJ under appeal. I was informed by counsel that there was no uniform practice in regard to this issue, although it was generally the case that the court hearing the appeal did not consider the reasons for the judgment under appeal. Whatever the position may generally be, the parties to the present case thought that it would be appropriate for me to have regard to the judgment below, and I was provided with a copy. As I understand it, the decision of the parties that this was an appropriate course to follow was guided in part by the fact that BM is a self-represented litigant; there are the difficulties to which I have adverted above concerning the identification of the precise nature of BM’s case, and it is possible that aspects of Johnstone DCJ’s judgment may throw light on those issues.

40. As it has happened, it appears from a reading of his Honour’s judgment that the application before him was somewhat different to the one that is before me, and the evidence is sufficiently different that I should simply determine the appeal on the basis of the evidence and submissions in these proceedings.

41. Section 90 of the Care Act governs the rescission and variation of care orders. The relevant parts of that section are:

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.

(8)   On the making of an order under subsection (7), the Children’s Court must cause notice of the order to be served on the Secretary.

42. Section 90(1) of the Care Act is the source of the requirement whereby BM is required to seek leave from the Children’s Court’s before she is entitled to proceed with her application to vary or rescind the orders that have been made for the care of her children. As Slattery J observed in Campbell at [38], the legislative policy behind the requirement for leave in s 90(1) of the Care Act is “to reduce uncertainty and anxiety for children in care when applicants (often birth parents) apply for variation of court orders, when they have little prospect of succeeding”.

43. It follows from the use of the word “may” in s 90(2) of the Care Act that the court has a discretion as to whether or not to grant leave, and from the use of the word “if”, that a precondition to the exercise of that discretion is that it appears that there has been a significant change in any relevant circumstances since the care order was made or last varied. Subsection (2A) specifies matters that the court must take into consideration in the exercise of its discretion to grant leave. One of those matters, in par (e), is whether the applicant has an arguable case. Consequently, the court must take into consideration whether the applicant has an arguable case for an order rescinding or varying the relevant care order, before it exercises its discretion in favour of granting the application for leave. In this manner, the underlying merits of the case that the care order should be rescinded or varied will influence the grant of leave: see Campbell at [39] – [40].

44. Section 90(2) of the Care Act lies at the heart of all applications for leave, and is particularly significant in the present case. The care orders made by Olsson DCJ were necessarily made on the basis of all of the circumstances that her Honour thought were relevant to the making of those orders. The Children’s Court may not grant leave for the making of an application for the rescission or variation of those orders unless it is satisfied that there appears to have been a significant change in any relevant circumstances since the original orders were made. An applicant in BM’s position must identify and establish one or more relevant circumstances that have changed, and then show that the change is, or changes are, significant.

45. Slattery J observed in Campbell at [42] that: “The range of relevant circumstances will depend upon the issues presented for the Court’s decision”, and they “may not necessarily be limited to just a ‘snapshot’ of events occurring between the time of the original order and the date the leave application is heard”. In my view, it is unlikely to be useful to attempt to define or constrain what is meant by the term “relevant circumstances” by any description or form of words. What are relevant circumstances in a particular case will emerge out of a careful consideration of the reasons why the Children’s Court made the care orders that have been made in the first place. That follows from the requirement that there be a significant change in those circumstances. The relevant circumstances will almost inevitably be case dependent.

46. Slattery J also dealt with the expression “significant change” in the following passage in Campbell:

[43] Significant Change. The change that must appear should be of sufficient significance to justify the court’s consideration of an application for rescission or variation of the existing care order: S v Department of Community Services [2002] NSWCA 151. The Court of Appeal considered in S v Department of Community Services, a s 90 leave application. Davies AJA, with whom Heydon and Hodgson JJA agreed, described the change required for leave to be granted:

23 I should observe that a person seeking leave to apply for the rescission or variation of a care order is not required to prove on such an application that, if leave be granted, the person would be entitled to the order sought. The first step is simply to establish that there has been a change of sufficient significance to justify the consideration of an application for rescission or variation of the care order.

There are dangers in my view, in paraphrasing the s 90(2) statutory formula for the exercise of the discretion beyond this statement of the Court of Appeal.

[44] The judgment of Davies AJA in S v Department of Community Services also shows (at [27]) how to measure “significant change” in relevant circumstances as required by s 90(2). Such measurement requires “a comparison between the situation at the time the application was heard and the facts underlying the decision made or last varied”.

[45] The Children’s Court frequently considers and applies s 90(2). “Significant change” was considered in Re J, K and C [2002] 2 CLN 1 by Children’s Magistrate Crawford. His Honour there was of the view that the change was of significance if, were it established, it would cause the court to wish to alter the existing order. Although expressed in slightly different language this approach seems to me to be indistinguishable from the Court of Appeal’s formula in S v Department of Community Services.

[46] The parties also referred the court to the Full Family Court decision of Re Rice and Asplund (1978) 6 Fam LR 570, where Evatt CJ considered changed circumstances to be “some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material” (at 572). But her Honour here was considering a different phrase in a different statutory context. Here, the Court of Appeal gives the Children’s Court sufficient guidance in S v Department of Community Services , even though that case was decided before the addition of s 9(2A) to the Act.

47. The applicable principle, as set out by Davies AJA, is that the change in relevant circumstances will be significant for the purposes of s 90(2) of the Care Act, if the change is sufficient to justify the consideration of an application for rescission or variation of the care order. That is plainly a discretionary consideration that will depend upon the facts and circumstances of the individual case.

48. Regulation 5 made under the Children and Young Persons (Care and Protection) Regulation 2012 (the Care Regulation) is relevant to the identification of significant changes in the relevant circumstances. It provides:

5 Rescission and variation of care orders—“significant change”

For the purposes of section 90 (2) of the Act, factors which indicate a significant change in the relevant circumstances of a child or young person since a care order was made or last varied include (but are not limited to) the following:

(a)   the parents of the child or young person concerned have not met their responsibilities under an applicable care plan or permanency plan involving restoration,

(b)   a finding by the Children’s Court under section 82 (3) of the Act that proper arrangements have not been made for the care or protection of the child or young person,

(c)   an application for a guardianship order has been made with respect to the child or young person,

(d)   in the case of a guardianship order—the guardian is unable or unwilling to meet the guardian’s responsibilities with respect to the child or young person.

49. It is appropriate to note at this point that BM relied upon this regulation to support a submission that she had demonstrated that a significant change in the relevant circumstances had occurred because MB and MS had not complied with the care orders in relation to the amount of contact between the siblings. It must be noted that reg 5(a) refers to failure to meet responsibilities under care plans or permanency plans involving restoration, rather than non-compliance with care orders. In any event, the failures relied upon by BM concerned no more than matters noted by the court when making the care orders concerning the fathers’ intentions concerning arranging sibling contacts. As I understand the evidence, there are no care plans in place in respect of the children that have been approved by, or are embodied in, an order of the Children’s Court.

50. Regulation 5(b) may, however, be applicable as BM seems to base her case largely on claims that proper arrangements have not been made for the care or protection of the children.

51. Even if an applicant for leave establishes that there has been a significant change in relevant circumstances, the court retains a general discretion whether or not to grant leave: see Campbell at [49].

52. In so far as the court in exercising its discretion is required by s 90(2A)(e) of the Care Act to take into account whether the applicant has an arguable case, the applicant must demonstrate that the case is reasonably capable of being argued in the sense that it has some prospect of success, or that the case has reasonable prospects, which may be something less than a prima face case: see Campbell at [50] to [52].

53. This consideration leads to the question as to the nature of the arguable case that is required to be established. As the application is for leave to make an application to rescind or vary a care order, and if leave is granted, s 90(7) of the Care Act empowers the court to vary or rescind the original order, having regard to the matters required to be taken into account by subsection (6). It follows that the applicant must establish that he or she has an arguable case for that relief, which in turn will depend upon and introduce the principles upon which the Children’s Court is required to act when making care orders in the first place.

54. The identification of those principles will depend upon the precise order that the applicant for leave seeks in relation to the rescission or variation of the existing care orders. That is, ordinarily, the applicant for leave would be required to identify the principle that the applicant claims should now be applied differently because of the change in circumstances.

55. As MB is representing herself in the present case, she has not presented her case with the desired level of technical specificity. Consequently, it will be necessary for me briefly to outline the general principles that may be applicable.

49. Section 71(1) of the Care Act sets out the grounds upon which the Children’s Court may make a care order in the following terms, as may be relevant to the present application (see the judgment of Olsson DCJ at page 2, where her Honour identified the ground upon which the Director-General (as then called) brought the care application):

71 Grounds for care orders

(1)   The Children’s Court may make a care order in relation to a child or young person if it is satisfied that the child or young person is in need of care and protection for any reason including, without limitation, any of the following:

…

(c)   the child or young person has been, or is likely to be, physically or sexually abused or ill-treated,

(d)   subject to subsection (2), the child’s or young person’s basic physical, psychological or educational needs are not being met, or are likely not to be met, by his or her parents or primary care-givers,

(e)   the child or young person is suffering or is likely to suffer serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which he or she is living,

…

57. The statutory process that may lead the Children’s Court to make a care order for the removal of a child or young person upon application by the Secretary requires the Secretary to assess whether there is a realistic possibility of the child or young person being restored to his or her parents, having regard to certain matters identified in s 83(1) of the Care Act. Under subsection (2), if the Secretary assesses that there is a realistic possibility of restoration, the Secretary is required to prepare a permanency plan involving restoration and submit it to the Children’s Court for consideration. Alternatively, if the Secretary assesses that there is not a realistic possibility of restoration, the Secretary is required by subsection (3), to prepare a permanency plan for another suitable long-term placement of the child or young person, and submit it to the Children’s Court for its consideration. In this way, the concept of whether or not there is a realistic possibility of restoration of the child or young person to his or her parents lies at the heart of the process mandated by the Care Act for determining the nature of the care order that should be made in a particular case. Subsections (5) and (5A) deal with the Children’s Court’s acceptance or otherwise of the Secretary’s assessment. Under subsection (6), the Children’s Court may direct the Secretary to prepare a different permanency plan, if it does not accept the Secretary’s assessment. Section 83 of the Care Act then relevantly provides:

(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.

…

(8)   A permanency plan is only enforceable to the extent to which its provisions are embodied in, or approved by, an order or orders of the Children’s Court.

58. In cases where the permanency plan does involve the restoration of the child or young person to his or her parents, s 84(1) of the Care Act requires that plan to include certain matters, as follows:

84 Requirements of permanency plans involving restoration

(1)   A permanency plan involving restoration is to include the following:

(a)   a description of the minimum outcomes the Secretary believes must be achieved before it would be safe for the child or young person to return to his or her parents,

(b)    details of the services the Department is able to provide, or arrange the provision of, to the child or young person or his or her family in order to facilitate restoration,

(c)   details of other services that the Children’s Court could request other government departments or funded non-government agencies to provide to the child or young person or his or her family in order to facilitate restoration,

(d)   a statement of the length of time during which restoration should be actively pursued.

59. Consideration of these provisions shows how the assessment as to whether there is a realistic possibility of the child or young person being restored to his or her parents, and the Children’s Court’s acceptance of that assessment, is, as it were, the gateway to alternative outcomes of care orders being made that do, or do not, contemplate the restoration of the child or young person to the parents. Even where restoration is contemplated, s 84 of the Care Act is prescriptive of the contents of the permanency plan required to ensure the safety of the child or young person.

60. Where, as in BM’s case, care orders have been made on the basis of a finding that there is not a realistic possibility of the children being restored to BM, one crucial consideration on an application for leave under s 90(2) of the Care Act, which is to seek the rescission or variation of a care order that will lead to restoration of the child or young person to the parent, will be whether the applicant has established an arguable case that there is a realistic possibility of the child or young person being restored for the purposes of s 83 of the Care Act.

61. As Slattery J observed in Campbell at [54], this will have the effect that the court “must assess whether there is a realistic possibility of the child or young person being restored to his or her parents” within the meaning of s 83(1) of the Care Act.

62. Slattery J dealt with the meaning of the expression “realistic possibility” in this context in Campbell as follows:

[55] The expression “realistic possibility of restoration” has often been interpreted by the Children’s Court and on appeal to the District Court. I was not referred in argument to particular judicial pronouncements on the meaning of “realistic possibility of restoration”. But when Johnstone DCJ considered this same matter in December 2008 [Re Saunders and Morgan v Department of Community Services, 12/12/2008, NSWDC, Unreported, Johnstone DCJ] he drew upon a summary of Children’s Courts practice given by Senior Children’s Magistrate Mitchell. Johnstone DCJ accepted the practical wisdom of Senior Children’s Magistrate Mitchell’s summary but found the words “realistic possibility” to set a somewhat less onerous test than Senior Magistrate Mitchell had set. The passage from Johnstone DCJ’s judgment is the following:

[11] I was unable to discover any judicial pronunciation on the meaning of a “realistic possibility” of restoration. I was directed to the following passage in the submissions of Senior Children’s Magistrate Mitchell to the Special Commission of Enquiry into child protection services in NSW:

The Children’s Court does not confuse realistic possibility of restoration with the mere hope that a parent’s situation may improve. The body of decisions established by the court over the years requires that usually a realistic possibility be evidenced at the time of hearing by a coherent program already commenced and with some significant “runs on the board”. The court needs to be able to see that a parent has already commenced a process of improving his or her parenting, that there has already been significant success and that continuing success can confidently be predicted.

What is required can be likened to a prima facie case where absent some unforeseen and unexpected circumstance a safe and appropriate restoration will be possible in the near future.

[12] This passage has elements that resonate. With respect, however, to liken the determination to the concept of a prima facie case is alien to the fact that these are civil proceedings. It is also at odds with the natural meaning of the words themselves, and in my view a purposive and beneficial construction of the legislation does not require such an onerous test.

[13] There are aspects of a “possibility” that might be confidently stated as trite. First, a possibility is something less than a probability; that is, something that it is likely to happen. Secondly, a possibility is something that may or may not happen. That said, it must be something that is not impossible.

[14] The section requires, however, that the possibility be “realistic”. That word is less easy to define, but clearly it was inserted to require that the possibility of restoration is real or practical. It must not be fanciful, sentimental or idealistic, or based upon “unlikely hopes for the future”. Amongst a myriad of synonyms in the various dictionaries I consulted, the most apt in the context of the section were the words “sensible” and “commonsensical”.

[56] Marien DCJ referred to this passage with apparent approval in this decision on 20 September 2010 in this matter. What Johnstone DCJ says in paras [13] and [14] is, in my view, with respect to his Honour, correct and is about all that can usefully be said about the expression “realistic possibility”. It is going too far to read into the expression a requirement that an applicant must always at the time of hearing of the application for rescission or variation have demonstrated participation in a program with some significant “runs on the board”. That in my view is to put a gloss on the words which are not in the legislation.

[57] Care Act, s 83(1) makes clear at what time the “realistic possibility” of restoration should be assessed. When the application for rescission or variation of a care order is before the court, it is at that time the court must assess “whether there is a realistic possibility” [Emphasis added]. It must not at the time of the rescission or variation application be merely a future possibility. It must at that time be a realistic possibility. But when leave to bring such an application is sought under s 90(1), as counsel for KC pointed out, the whole case for rescission or variation is not being presented now. On the leave application, the court can take into account the fact that the applicant’s case is on a course which is likely to be supplemented with further evidence by the time the case gets to a hearing, once leave has been granted. I am mindful in this application that KC and SC have not been cross-examined.

63. Accordingly, the question at this stage of the hearing of an application for leave under s 90(2) of the Care Act, is whether or not the applicant has an arguable case in the sense considered above that he or she will be able to establish, when the application to rescind or vary the care order is made, that there is a realistic possibility of restoration in the sense set out by Slattery J. As will be seen, of relevance to the present case, the aspect that is likely to be significant is the ability of the court to see that a parent has already commenced a process of improving his or her parenting; that there has already been significant success; and that continuing success can confidently be predicted. The possibility of restoration must be real or practical. It must not be fanciful, sentimental or idealistic, or based upon unlikely hopes for the future. The question is whether, as a matter of common sense, there is a real and practical possibility that the child or young person may be restored to his or her parents.

64. A question arises on this application as to whether the power of the Children’s Court to grant leave under s 90(1) of the Care Act to make an application for the rescission or variation of a care order is limited to granting the leave in an unqualified way, or refusing leave; or alternatively, whether the court may grant leave to apply for the rescission or variation of only part of the care order, and on such conditions as the Children’s Court may fix. That is, is the power to grant leave an all or nothing power, or can it be exercised in a restricted and qualified way so that the applicant will be permitted only to revisit specific issues?

65. I have had the benefit of considering the decision of Judge Mark Marien SC, then President of the Children’s Court, in Kestle, Susan v Director of the Department of Family and Community Services [2012] NSWChC 2, in which his Honour considered this issue at [41] to [53]. See also Re Tina [2002] CLN 6 and In the matter of Troy [2010] CLN 2. His Honour reached the following conclusion at [53]:

In my view, the wide discretion available to the court in granting leave under s 90(1) allows the court to also exercise a wide discretion as to the terms or conditions upon which leave is granted. Accordingly, the court may restrict the grant of leave to a particular issue or issues. This would be appropriate, for example, where the court determines that an applicant parent does not have an arguable case for restoration of the child to their care, but does have an arguable case on the issue of increased parental contact.

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

Grounds on which care orders were made

67. Section 90(2) of the Care Act establishes, as an obvious and necessary starting point, the identification of the relevant circumstances that led the Children’s Court in the first place to make the care orders that are sought to be rescinded or varied. Counsel for the parties in the present case tended to refer to this, in my view aptly, as the baseline against which the application must be measured.

68. It is accordingly necessary to analyse the reasons given by Olsson DCJ for making the care orders that are relevant to the present case: see M v Department of Family and Community Services, unreported, 19 April 2013.

69. I agree with the observations made by Johnstone DCJ in the decision under appeal at [57], that “there are always dangers in summarising or paraphrasing a long judgment containing a variety of findings and conclusions”. That is particularly so where, as here, the applicant for leave has not addressed the judgment and identified with reasonable precision the parts of the judgment leading to the care order sought to be rescinded or varied to which the change in circumstances are relevant.

70. Olsson DCJ noted at page 1 that BM had sought to appeal “establishment” (being the finding relevant to s 71 of the Care Act, that at the time they were removed from her care, the children were in need of care and protection), as well as the finding that there was no realistic possibility of restoration of any of the children to her care, and also the consequential final orders that were made.

71. Her Honour dealt with the first question, whether the children were in need of care and protection as of 30 November 2011, at pages 8 to 38 of her reasons. She did so under a number of headings, being peripatetic lifestyle, alienation from fathers and family, physical neglect, BM’s relationship with the children, and BM’s attitude to the Department.

72. The findings concerning BM’s peripatetic lifestyle may not now be of primary significance. Olsson DCJ recounted in detail the movements in BM’s life while living with the three fathers of her children, and found that there was no evidence that she moved locations in the best interests of the children. Her Honour’s findings may be exemplified in the following part of her judgment at page 13:

What is more compelling and more disturbing is the manner and form in which Ms M has relocated herself and her children over the period of about 10 years. As I have recounted, as best I can put it together, she has travelled from Western Australia to South Australia back to Western Australia, back to South Australia, to Wagga, to South Australia and to Junee and lived variously with friends, parents, boyfriends, in refuges, houses, assisted housing and at times caravans. All of this was without any apparent regard to the effect that this dislocation might have on the children’s emotional and psychological well-being and their education.

73. Olsson DCJ made detailed findings about steps that BM had taken to alienate her children from their fathers and family. She said at page 15: “Ms M engaged in the systematic removal of the identity and influence of the fathers of the children from their lives”. She noted at page 18 that BM had made an unjustified allegation to a Supreme Court judge in order to secure a stay of proceedings that MB, the second defendant, had had “inappropriate sexual dealings with the children on prior occasions”, and also falsely asserted in her proposed care plan that MB “has a police record of child pornography and abuse”. Her Honour found at page 19: “The alienation was not just from the fathers though, these children were isolated from their extended family”.

74. On the issue of physical neglect, Olsson DCJ directed the greater part of her attention to the children DM and JM who, being older, had a longer history and had been able to explain their situation to various people. She dealt with the three younger children at pages 25 to 29, and started by saying: “With respect to the younger children the evidence is similarly troubling”. Her Honour’s findings on this issue are encapsulated in the following extract from page 26:

The overwhelming impression that I have formed is that the family situation was almost entirely one of chaos and disorganisation by the end of 2009 and it got worse. Ms M’s explanations just do not adequately address the objective material from the school regarding her care of the children. She repeatedly asserted that they took lunch to school, although there was also evidence that she took them home for lunch. She said that they had adequate food, but that is simply not borne out by the preponderance of the evidence. The school teachers recorded that they gave DM and JM food, the boys’ friends gave them food, and the Risk of Harm reports referred to inadequate food. DM was not just underweight, he was below the third percentile. When this was put to Ms M, her response was in part, and I quote, “someone has to be” [T 58]. Statistically no doubt that is true, but I found it to be a particularly cold and unfeeling comment about one’s own child.

Her explanations as to lateness and absenteeism are to my mind unsatisfactory, but perhaps of more concern is that she did not appear to be concerned by the effect of this on their educational development. Her response to the evidence of the school’s concerns was typified by this. Letter after letter after letter by the school were tendered in which the school was exhorting her to get in contact with them, to cooperate with them to try and help DM who was having very serious problems of disorganisation and being able to prepare himself for school…

It goes on and on. Ms M’s response was to be annoyed at being sent what she regarded as a very rude letter…

75. Olsson DCJ’s findings concerning BM’s relationship with her children primarily related to her relationship with DM and JM, however, I understand that her Honour’s observation at page 30: “These were children that needed gentle persuasion, positive reinforcement and love. What they got was denial, punishment and blame” was intended to have a more general application. In any event, I understand her Honour’s observation as being intended to suggest that BM was likely to have an unsatisfactory relationship with her three youngest children, as well as the two older boys.

76. Her Honour also found at page 31 that BM’s “attitude to the Department” was “one of hostility and obstructionism”. In particular, her Honour said:

[BM] has demonstrated in particular by her contact with [MS] that she has no regard for the Orders of the Court regarding contact and has acted in flagrant disregard of those orders regarding ZM in order to further what she perceived to be her own interests to see ZM and to expose [MS] (in some way that is not clear to me) as a liar. I cannot be satisfied that [BM] would comply with any order that required her co-operation and I entertain a real concern that if she were to have unsupervised contact with the younger children that there is a strong risk she would simply put them in the car and abscond to another State without trace.

77. At page 38 her Honour asked herself the question: “Does that situation subsist?” Her answer was:

In other words, would they continue to be at risk if they were with their mother? In my view, the answer is yes. Ms M displays not only no insight into the real reasons why the children were taken into care, but has repeatedly and unjustifiably sought to place responsibility on everyone else. She said the fathers were violent, Mr B was a child pornographer, her parents had made her pregnant and homeless, that she was a victim, the school had her old email address, the children were lazy and disorganised, but worst of all to my mind, she accused her own children of lying and having a history of life.

78. Her Honour then addressed on the same page the question of whether there was a realistic possibility of restoration to BM:

There is not. She has done nothing to acknowledge the problems that beset her and the children in 2010 and 2011. She has not engaged in any meaningful way with the department, with the fathers of the children nor has she made any effort to obtain help for herself beyond grief counselling for domestic violence and for having had her children taken into care. She has attended a couple of short parenting courses, but other than that the situation remains that it is the fault of everyone else and that she is a good mother who has merely made a few mistakes. It seems to me that the likely result is that if the children were returned to her she would continue in her chaotic lifestyle, continue to prioritise her own needs over that of the children, and in all probability would flee with them to another State where they would remain undetected until inevitably someone else made a Risk of Harm report.

Care orders

79. On the basis of the reason that I have outlined above Olsson DCJ made the following care orders in relation to the three youngest children:

… I order …

(2)   RM and HM, pursuant to 79(1)(a)(i), all aspects of paternal responsibility for RM, born 17 July 2007, and HM, born 27 February 2008, are allocated solely to the Father, [MB], to the exclusion of the mother, [BM], until each child attains the age of 18 years.

(3)   ZM, pursuant to s 79(1)9a)(i), all aspects of parental responsibility for ZM, born 4 March 2011, is allocated solely to the father, [MS], to the exclusion of the mother, [BM], until ZM attains the age of 18 years. Pursuant to s 86 ZM shall have supervised contact with the mother at a minimum of six times a year, at such times and locations as determined by the father in consultation with the mother until ZM attains the age of 18 years. ZM’s contact with his mother shall be supervised by a contact service, the father or such other person or organisation as determined by the father.

Pursuant to s 90A the father, [MS], is prohibited from:

(a)   permitting ZM to have unsupervised contact with the mother; and

(b)   from otherwise leaving ZM unsupervised in the care of the mother; and

(c)   permitting the mother to stay overnight or live in any premises occupied by the father and ZM at any time until ZM attains the age of 18 years.

(4)   Pursuant to s 73, the Court accepts the following undertakings from [MS] until ZM attains the age of 18 years:

(a)   to do all things necessary to ensure the mother does not have any unsupervised contact with ZM;

(b)   to not leave ZM alone in the care of the mother;

(c)   to promptly report to the Community Services Helpline any attempt by the mother to have unsupervised contact with ZM;

(d)   without admissions not to physically discipline ZM;

(e)   to do all things necessary to ensure the mother does not discipline or punish ZM in any way.

80. Her Honour also noted a number of statements of intention by the children’s respective fathers concerning the arranging and facilitating of regular contact between the siblings and with BM. They are:

A.   The Court notes that it is the intention of the children’s respective fathers, Mr C, Mr B and Mr S, to regularly communicate with each other for the purpose of arranging and facilitating the children’s regular contact with each other including telephone, face-to-face contact between the siblings.

B.   Mr B intends to do all things reasonably necessary on his part to arrange for RM and HM to have contact with persons of significance to them as follows:

(1)   with their mother, Ms M;

(a)   visits not less than four times each year in Adelaide or Wagga, supervised by a person or persons nominated by Mr B, but not including any overnight time;

(b)   contact once per week by way of electronic communication including Skype and/or telephone, such contact to be initiated solely by Mr B;

(c)   by ensuring that the children receive any cards and gifts and letters sent to them by the mother;

(d)   by encouraging the children to send cards, gifts and letters to the mother as appropriate to their ages and abilities;

(e)   by regularly sending the mother videos and photographs of the children and copies of their school reports.

The Notation B is provisional upon the mother keeping Mr B advised of her current residential address, her email address and her mobile telephone number.

81. It is with these orders, and no others, that the application for leave under s 90(2) of the Care Act may be concerned. The orders have the following components: (1) all aspects of parental responsibility for each of the children are allocated to the child’s father to the exclusion of BM until the child attains the age of 18 years; (2) in the case of ZM, a specific supervised contact arrangement with BM is established; (3) in the case of ZM, MS is specifically prohibited from allowing BM to have unsupervised contact or care or staying overnight in premises occupied by ZM; and (4) the court accepted an undertaking from MS not to leave ZM in the care of BM, making notification of any attempt by BM to have unsupervised contact, and not to himself or allow BM to physically discipline or punish ZM.

BM’s case

82. As I have noted above, BM has represented herself throughout these proceedings. BM has had no legal training, and explained that she only went to school up to year 10. Nonetheless, BM was able to present her case reasonably fully, perhaps in part because she has had considerable experience in representing herself in a number of courts, including the Court of Appeal. BM was able to state her position in a comprehensive way, although it must be said usually with a high level of repetition. She at all times conducted herself appropriately and was polite and respectful. It is obvious that the exercise was highly emotional for BM and very taxing.

83. After two full days of hearing, I made an arrangement for BM to be able to give her submissions orally on the morning of the third day, and BM did so over some 20 pages of transcript.

84. There was insufficient time for counsel for the defendants to make oral submissions, and I gave them leave to deliver written submissions to the court. Counsel delivered their submissions on about 26 or 27 October 2015.

85. I did not make directions for BM to deliver any written submissions, or to reply to the submissions made on behalf of the defendants. Nonetheless, I received from BM by email, further detailed written submissions on about 6 November 2015. The written submissions are extensive (extending to 98 pages of single spaced type). The version of these additional submissions that appears to have been filed in the registry on 10 November 2015 was accompanied by an additional USB stick. This USB stick has not been received into evidence and I have ignored it. I have inferred from the information in BM’s covering email that she sent her final written submissions to the solicitors for the defendants.

86. Notwithstanding that the directions that I made did not provide for BM to serve final written submissions, I have decided that in this case it will be appropriate for me to receive them as being the most considered statement of BM’s case. I am not satisfied that she was able to do justice to her case in the oral submissions that she was able to deliver at the end of the hearing.

87. I am satisfied that the course that I have decided to take will not prejudice the defendants, given the conclusions that I have reached, and the fact that BM’s submissions collect the propositions that she has made in her extensive evidence, and do not introduce anything significant that is new.

88. I have carried out a detailed analysis of the written submissions. That has been a time-consuming exercise, given the detail, and the fact that the submissions are repetitive and episodic to quite an extraordinary degree. It has been challenging to try to encapsulate BM’s arguments. Indeed, the attempt to do so has been primarily responsible for an unfortunate delay in my being able to deliver these reasons for judgment.

89. It is fair to say that BM’s written submissions comprise primarily a series of recurring themes rather than precisely articulated arguments. Those themes tend to recur regularly but in a rationally disjointed fashion, and are expressed in terms that are not always entirely consistent.

90. I have made these preliminary observations because I have not found it practicable to state BM’s arguments in a conventional way that would enable me to deal with them consecutively. Notwithstanding that I have read and analysed the whole of the written submissions in detail, I propose to list the propositions upon which I understand BM to rely in relatively straightforward terms.

91. I will identify the paragraphs in BM’s written submissions which primarily deal with each of her arguments. This process cannot be effected in an entirely complete or accurate way, as the arguments in some paragraphs are hard to characterise, and many paragraphs seem to deal with a number of different concepts. (I should record that BM numbered the paragraphs in her submissions from 1 to 51, and then reverted to 27, before continuing consecutively, which creates a difficulty in following the paragraph numeration).

92. BM sets out the substance of her position in par 1 of her written submissions by stating that she was seeking that the three children “be restored into my care, or if I am not successful with this, then I am seeking a change in orders that would allow my children increased time with their mother, and restoration to each other by increased contact with their siblings…”

93. It seems reasonable to analyse BM’s claim based on significant changes in relevant circumstances that have occurred since the care orders were made by dividing her arguments into the following categories; namely:

1. Particular circumstances exist which put at risk the safety, welfare and well-being of the children.

2. The arrangements contemplated by the care orders for BM’s access to the children and for sibling contact between the children have been ineffective.

3. BM has achieved substantial changes in attitude, understanding, and her living circumstances, as when measured against the matters found unacceptable by Olsson DCJ, which justifies the conclusion that BM no longer represents the danger to the safety, welfare and well-being of her children that Olsson DCJ found existed.

4. BM has gained substantial insight into the reasons why the care orders were made, and can now be relied upon to be able to adjust her conduct in relation to the care of the children so that she no longer represents a threat to their safety, welfare and well-being.

94. I will explain each of these arguments in turn.

Circumstances that put the children at risk

95. BM claims that RM has said to her in circumstances that should be taken seriously that he “does not want to live” and that he has said “I’m going to kill my dad and then I can come home to you” (pars 13, 55, 94 to 98, 153, 174, 175, 195 and 312). As I understand it, this event is said to have occurred on 14 May 2014 (par 55).

96. The defendants do not accept that this event occurred, but there is no positive evidence that contradicts it.

97. BM claims that ZM is at risk because MS has continued to perpetrate domestic violence towards her (pars 33, 38, 39, 45, 47, 63, 111 to 113, 119, 147, 167, 168, 182, 207, 212, 225 to 232, 298 and 303). BM makes this claim on the basis of a great many bare assertions made by her concerning MS’ conduct at many places strewn throughout her affidavits and submissions. A reflection on the number and distribution of the paragraphs in BM’s submissions in which this claim is made demonstrates how pervasive this theme is. I will not attempt to summarise the descriptions of MS’ conduct in the many places where the allegation is made. I believe it is fair to characterise the claims as involving low-level physical hurt and emotional aggression (although in giving this description, I do not mean to diminish the significance of any domestic violence).

98. MS denies that he has engaged in the conduct alleged by BM.

99. BM claims that ZM is at risk because MS drinks alcohol to excess when he has the care of the ZM; that MS’ attitude to ZM is affected when he is recovering from the consequences of drinking excessive alcohol; and that MS regularly drives a vehicle conveying ZM when MS is still under the influence of alcohol consumed the night before (pars 46 to 48, 64, 82, 87, 115, 208, 210, 217, 235, 298 and 299).

100. MS acknowledges that he sometimes has a couple of drinks at night with dinner after he has put ZM to bed, and says that if he intends to drink any more than that, he arranges for his adult daughter to care for ZM. MS denies that he drinks to excess, or that he ever drives a vehicle conveying ZM whilst under the influence of alcohol.

101. BM claims that the home in which MS lives with ZM is dangerous and in many respects, inadequate for the proper safety and care of ZM (pars 114, 209, 251 and 254). Paragraph 251 lists in point form some 37 alleged deficiencies in the home and garden.

102. MS in essence accepts that the home in which he and ZM live reflects the reality of MS’ financial circumstances, but he denies that ZM’s living circumstances are in any significant way dangerous or inadequate.

103. BM claims that MS regularly leaves ZM in the care of his adult daughter, who has three children of her own, and as a consequence, the daughter regularly drives her vehicle with ZM in the front passenger seat with an inadequate restraint, and with her three children in the back seat, even though ZM is not the oldest of the children (pars 115, 146, 217 and 251).

104. MS acknowledges that it is regularly necessary for him to arrange for his adult daughter to take care of ZM (just as on a regular basis he minds his grandchildren). It is often necessary in the ordinary course of daily activities for MS’ daughter to drive her car containing the four children. ZM is often placed in the front passenger seat, but that is because he is the largest of the four children, notwithstanding that he is not the oldest. Although initially MS’ daughter may not have had a proper restraint fitted, that shortcoming was addressed to the satisfaction of the Police.

105. BM claims that MS regularly allows ZM free rein to run around the house with MS’ grandchildren without adequate supervision or discipline (par 32). This claim was supported by two extracts from the USB stick that BM originally wished to tender, and which became Exhibit B. It is convenient to record at this point that upon viewing the videos appear to be very brief and unclear; but in each case appear to depict a number of young children (I assume including ZM) running around a house with relatively unrestrained exuberance conducting harmless warfare, in what appears to be good spirits. While the house appears to be relatively disorganised, there is no one who has not witnessed how quickly and completely even a small number of energetic children can completely disorganise a house. While the children do not appear to be under close supervision, there does not appear to be anything unusual or dangerous in their conduct.

Shortcomings in contact and access arrangements

106. As has been set out above, the care orders made by Olsson DCJ do not include an order giving access by BM to RM and HM, and in particular do not provide for access on any defined terms. The court merely noted that BM intended to do all things reasonably necessary to arrange for RM and HM to have contact with BM by way of visits not less than four times each year in Adelaide or Wagga Wagga, supervised by a person or persons nominated by MB, but not including any overnight time; and to have contact once per week by way of electronic communication including Skype and/or telephone, with such contact to be initiated solely by MB, as well as other communications involving such matters as cards, gifts and letters.

107. The position was somewhat different in relation to contact between BM and ZM, as order 3 of the care orders required ZM to have supervised contact with BM a minimum of six times a year, at such times and locations as MS determined in consultation with BM. The contact arrangements were made subject to the explicit prohibition that the contact be unsupervised or that BM stay overnight or live in any premises occupied by ZM and MS. The Children’s Court accepted an undertaking from MS that, until ZM attains the age of 18 years, he would ensure that BM did not have unsupervised contact with ZM; that he would not leave ZM alone in the care of BM; and that he would ensure that BM did not discipline or punish ZM in any way.

108. So far as sibling contact between all of the children was concerned, the Children’s Court did no more than to note the intention of their respective fathers to regularly communicate with each other for the purpose of arranging and facilitating the children’s regular contact with each other, including telephone and face to face contact between the siblings.

109. BM claims that there has been a significant change in relevant circumstances concerning the arrangements contemplated by the care orders concerning both her access to the three children, and contact between the siblings, to justify leave being granted under s 90 of the Care Act (as to contact between BM and ZM see pars 11, 45 to 47, 71, 73, 74, 76, 80, 108, 122, 123, 145, 170, 171, 176, 211, 312, 317 and 318; as to contact between BM and RM and HM see 13, 55, 94 to 98, 153, 174, 175, 195 and 312; and as to contact between siblings see pars 8 to 10, 19, 57 to 62, 98, 103, 105 to 107, 116 to 118, 123, 126, 128, 130, 132, 142 and 299).

110. As I have noted above, BM relied upon reg 5 of the Care Regulation on the basis that BM and MS have not met their responsibilities under an applicable care plan or permanency plan. As I have also noted, the care orders did not incorporate such plans, so that reg 5(a) does not apply. However, in my view it will still be possible for BM to demonstrate that significant changes in relevant circumstances have occurred on the particular facts of the case in relation to the arrangements contemplated by the care orders.

170. Fourthly, BM has not established her claim that ZM is in danger by reason of the physical circumstances of the house and garden in which he lives with MS. In my view, the conclusions reached by the officers of the Department and the Police that they have set out in their reports after inspecting the property, and also the arrangements made for the care of ZM, establish that ZM’s living circumstances are satisfactory. It matters not that MS’ financial circumstances may place some limitations on his capacity to maintain the property.

171. I therefore conclude that at this stage there is no realistic possibility that parental responsibility will be restored to BM in respect of RM, HM and ZM.

172. I am not able to foretell the future, but it is almost certain that BM will not be able to achieve any change in the arrangements for the parental responsibility for the three children so long as she remains unable to fully appreciate that her actions were responsible for her children being taken into care, so that in the one breath she claims insight, but in the next she continues to deny responsibility and to blame others for her predicament.

173. More specifically, so long as BM continues to make fruitless applications to sundry courts, with the burdens that that conduct imposes on the other parties; so long as she continues to make relentless and obsessive complaints to the Department and to the Police; and so long as she lacks the discipline to make and adhere to arrangements for access to her children, it will be highly unlikely that she will achieve any variation at all to the existing care orders.

174. That said, I should make it clear that nothing that I say will in any way determine the outcome of any future application that may be made concerning leave to apply to rescind or vary the care orders. However, it may fairly be observed that the longer BM engages in the conduct that I have considered above, which is positively inimical to her prospects of achieving some variation of the care orders, the requirement in s 90(2A) of the Care Act where the Children’s Court must take into consideration the length of time for which the child or young person has been in the care of the present carer, will continue ever more to work against BM’s prospects of achieving the outcome that she desires.

175. My decision to reject BM’s appeal for leave to apply for the rescission of the care orders in so far as they deal with parental responsibility for RM, HM and ZM, does not completely dispose of BM’s appeal. There remains the question of whether BM should be given leave to apply for the rescission or variation of the care orders in so far as they deal with BM’s access to the children, and contact between the siblings.

176. As must always be remembered, s 9(1) of the Care Act requires that the Act be administered under the principle that the safety, welfare and well-being of the child or young person are paramount. One proposition put by BM that I readily accept is that it is not in the best interests of ZM that his contact with his mother occurs on an irregular and erratic basis, particularly if significant periods of regular contact are broken by periods of little or no contact. I think it likely that, as ZM grows older, that unpredictable and irregular contact between ZM and his mother is likely to become ever more damaging to his welfare and well-being.

177. Although I have not found that the evidence given by BM concerning her efforts to learn how to be a better and more reliable mother to her children, and the change that has occurred to her peripatetic existence, constituted significant changes to relevant circumstances that were sufficient to give her leave to apply to rescind or vary the care orders in so far as they deal with parental responsibility for the children, I would have regarded that evidence as being sufficient to grant that leave in relation to the arrangements made in the care orders for contact between BM and ZM, were it not for BM’s own conduct in the way that she has approached arrangements made for her contact with ZM.

178. I would also find that the fact that MS thought it appropriate to give BM much more access to ZM that was required by the care orders, as well as the terms concerning access contained in the mediation agreement made on 12 August 2014, are significant changes in relevant circumstances that could be a proper basis for giving BM leave to apply to vary the care orders in so far as they concern access to ZM. (I would add that I believe that MS has acted appropriately, and in the best interests of ZM, in trying to achieve a state of affairs where ZM had greater, as well as regular and predictable, access to his mother than was required by the care orders).

179. The obvious problem is that, even if I accept that these changes constitute significant changes in relevant circumstances for the purposes of leave to apply to vary the care orders in so far as they concern BM’s access to ZM, it remains necessary for me, as required by s 90(2A) of the Care Act, in the exercise of my discretion, to consider whether BM has an arguable case that the Children’s Court should vary the care orders to give her more access to ZM.

180. I accept MS’ evidence (which I consider to be substantially bolstered by the evidence in the police reports) that MS’ attempts to voluntarily give BM more access to ZM than the care orders require, including in the terms of the mediation agreement, have been ineffective because BM has not had the discipline to comply with the agreements. Furthermore, she has harassed SM by the deluge of complaints that she has made to the Department and the Police, which have so frustrated MS that he has been unable to implement his own admirable desire to give BM more access to ZM than the care orders require.

181. One significant aspect of the changes in relevant circumstances that have occurred since the care orders were made, is that BM has herself demonstrated that, even though it is in ZM’s interests for him to have more contact with his mother than the care orders require, and to do so on a regular and reliable basis, it has been BM’s own conduct which has made that outcome impossible.

182. That conclusion may be sufficient to justify rejecting BM’s appeal in so far as it seeks leave to apply to the Children’s Court to vary the care orders in respect of her access to ZM. The evidence of her conduct is likely to make the application futile, and may subject the Department, MS, and probably ZM, to unnecessary anxiety and expense (contrary in ZM’s case to the legislative policy identified by Slattery J in Campbell at [38], which I have set out above).

183. Yet I am left with the concern that it would be in ZM’s interests for more appropriate, precise and enforceable care orders to be made concerning BM’s access to ZM, and it is only BM’s conduct that is standing in the way of leave being given that would enable the Children’s Court to deal with that matter.

184. This concern has led me to the following considerations. First, does the court have power to allow BM’s appeal in part in relation to leave to apply to vary the care orders in relation to access to ZM, but only on the condition that she first demonstrate by her conduct that she has the discipline to cease doing all of the things that now stand in the way of her being allowed to apply to vary the access arrangements; and if the court has that power, whether or not it should exercise it. Secondly, if so, does the court have power to defer ruling on this issue until a time when BM has actually demonstrated by her conduct that she has the necessary discipline, and has acted appropriately for a sufficient period of time, to justify this court in making an order that will allow her to apply to vary the care orders? This last consideration arises because of a concern that it will ultimately not be in the interests of anyone, least of all ZM, for this court to make any order that permits BM to make a new application to the Children’s Court in a manner that is uncontrolled and likely to be futile.

185. I am also conscious of the number of applications that BM has made to various courts, and am concerned that nothing can readily be done to stop that process. It may be appropriate for the court to consider whether it is able to intervene in a way that gives BM reason to hope that if she is able to act in a disciplined way and to change her conduct, that she will have some chance of gaining a positive outcome; albeit that it is only realistic that small steps may be available to her over time to improve the circumstances of her relationship with her three youngest children.

186. I have come to the conclusion that I should not reach a final decision on these issues, without giving the parties an opportunity to make further submissions on the issues. They are important questions, and from the perspective of the Department, they may raise issues of general importance that should not be addressed solely within the confines of the present case. The parties have not had an opportunity to put submissions to the court on these issues.

187. As I have said, I will not allow the appeal to give BM leave to apply to rescind or vary the care orders in so far as they provide for parental responsibility for the three children. I would, however, invite the parties to submit further written submissions (limited to 10 pages unless I give leave to deliver more lengthy submissions) on the following issues:

1. Does the court on an application under s 90 of the Care Act, have power to grant leave to the applicant to rescind or vary part of a care order, but only on a specified condition or conditions?

2. If so, may that condition be that the application may not be made for a specified period, and only if by the end of that period the applicant has demonstrated that the applicant has the ability to, and has, engaged in, or not engaged in, conduct as specified in the condition, so that the applicant will have an arguable case that the care order should be rescinded or varied?

3. Does the court on an application under s 90 of the Care Act, have power to defer a final ruling on the application until a specified time has elapsed, during which the applicant is given time to demonstrate that the applicant has the ability to, and has, engaged in, or not engaged in, conduct as specified by the court, so that the court is satisfied that the applicant will have an arguable case that the care order should be rescinded or varied?

4. If the preceding questions, or any of them that may be sufficient, should be answered affirmatively, what orders should be made in the present case concerning BM’s application for leave to apply to rescind or vary the care orders in so far as they provide for BM’s contact with ZM?

195. I appreciate that the Department and MS remain free to submit that I should simply reject BM’s appeal, but I would value, particularly from the Department, a positive response to these questions. I have a strong view that the court at least has an obligation to grapple with the practical reality of the present circumstances, and at least to explore whether or not there is a positive avenue available that may give BM hope and an incentive to conduct herself in a way that will improve the prospects of her having a more normal relationship with ZM than is the case at present. The alternative, which may well be required on a proper understanding of the Care Act, is simply to reject the appeal, and to let nature take its course.

196. The observations made by Slattery J in Campbell at [57] (see par 62 above) will be relevant to the questions that I have posed. Slattery J said that the “realistic possibility” of restoration must not be merely a future possibility when the application for rescission or variation of a care order is before the court. However, his Honour also noted that the case for rescission or variation is not presented at the time the application for leave to make the application is made. On the leave application, the court can take into account the fact that the applicant’s case is on a course which is likely to be supplemented with further evidence by the time the case gets to a hearing. It may be that Slattery J’s observations concerning restoration of parental responsibility apply equally to the possibility that the applicant may achieve a variation to the contact arrangements in the care orders. That is an issue. Perhaps more significantly, the question is whether the court on an appeal under s 91 of the Care Act can be more proactive in relation to the terms on which leave to make an application to rescind or vary a care order is given. May the court grant leave on terms designed to facilitate the best outcome, particularly in relation to the paramount consideration that the safety, welfare and well-being of the child or young person should be enhanced.

197. That leaves the position of BM’s application concerning access to RM and HM, and the issue of contact between the siblings, up in the air. The problem that I have faced is that, probably because BM as a layperson has not been able to present evidence to the court with sufficient clarity as to what, if any, real practical difficulties have arisen in relation to her contact with RM and HM, and with contact between the siblings, I have a suspicion that the indefinite arrangements made by the care orders are not optimal, but the facts as I understand them do not justify my granting leave to BM to apply to the Children’s Court to vary the care orders in those respects. Notwithstanding that, it may well be that experience of the implementation of the care orders would justify leave being given to BM to apply to the Children’s Court, limited to a consideration of whether more refined orders could be made on these issues, primarily in the interests of the three children, but also of their parents.

198. I invite the parties to also address this question in their supplementary written submissions.

199. When I deliver these reasons for judgment I will discuss with the parties the directions that should be made concerning the delivery of the further submissions to which I have referred.

200. I realise that the course that I have proposed is only likely to be fruitful if BM herself responds by grasping the opportunity, which will require her to make a commitment to change the behaviour that is the principal impediment to her succeeding in obtaining any variation to the existing care orders.

Application for extension of time to commence appeal

201. In Re M; Application of YA [2014] NSWSC 1736 Lindsay J made the following observations concerning the principles governing the grant of an extension of time to commence an appeal under s 91 of the Care Act:

[20] An appeal under s 91 of the Care Act is an appeal by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence on which an order under appeal was made, may be given on appeal. The court may, instead of taking fresh evidence, decide to admit as evidence the transcript of proceedings before the Children’s Court and any exhibit tendered during those proceedings.

[21] The court, in this case at least, could not confidently proceed on the basis that the evidence on the hearing of the s 91 appeal would be limited to the Children’s Court transcript and exhibits. That is because, apart from anything else, the case sought to be advanced by the plaintiff focuses upon events of recent origin which are said by her to constitute a change of circumstances since the date of the judgment under appeal.

[22] The Care Act requires that, in any action or decision concerning a particular child or young person, the Act is to be administered on the basis that the safety, welfare and well-being of the child or young person are paramount: s 9(1).

[23] The objects of the Care Act include, as a principal object, the provision to children and young persons of such care and protection as is necessary for their safety, welfare and well-being having regard to the capacity of their parents or other persons responsible for them: s 8(a).

[24] The Act also requires that all matters before the Children’s Court are to proceed as expeditiously as possible, in order to minimise the effect of the proceedings on the child or young person and his or her family the subject of the proceedings, and to finalise decisions concerning the long term placement of the child or young person: s 94(1).

[25] There is no dispute between the parties to these proceedings that, if the plaintiff were permitted to appeal to this court out of time, the appeal proceedings would need to be, and should be, conducted expeditiously in order to minimise the effect of the proceedings on M, in particular.

[26] Although other parties to the proceedings accept that, had she filed her summons within time, the plaintiff would have had an appeal as of right, it is accepted, all round, that an exercise of discretion on the part of the court is required given that the summons was filed out of time.

[27] Upon a consideration of what should be the proper order, bearing in mind the discretionary nature of the court’s jurisdiction on an application for an extension of time, it is important to bear in mind the statutory framework (of the Care Act) within which a decision must be made. Of particular importance is the need to place the safety, welfare and well-being of M to the fore.

[28] The plaintiff’s appeal, or more accurately prospective appeal, has not been pursued with consistent diligence. Prior to filing her summons on 5 November 2014 she invoked the inherent jurisdiction of the court in an attempt to challenge interlocutory steps taken in the Children’s Court, and ancillary decision making of the first defendant.

202. It seems clear that the application for leave came on before Lindsay J substantially in advance of the hearing of the substantive appeal, as his Honour based his reasons substantially on the likely consequences of his granting leave in relation to what the subsequent appeal would involve.

203. I do not intend to generalise, but in my view it will usually be appropriate, where a real issue arises as to whether an appellant under s 91 of the Care Act should be given leave to appeal out of time, for the parties to bring that issue before the court at an early time, if that can be done. That is the only way that effect can be given to the purpose of limiting the time in which an appeal can be commenced, and then giving the court power to give leave to an appeal being commenced out of time. It is self-evident that, in the usual case, if the issue of whether leave to appeal out of time should be given is left to the hearing of the substantive appeal, the result may be wasteful and appear to be unfair. I appreciate that in other contexts there may be good reason for deferring the determination of the leave issue to the hearing of the substantive appeal; for example where the issue of leave is largely dependent upon whether the appeal has sufficient prospects, and the determination of the substantive issue will take little more time than the determination of the issue of sufficient prospects. However, in cases such as the present, particularly where the question arises under the Care Act so that the interests of the relevant child or young person are paramount, and the granting of leave is only dependent on the issue of delay, it will be unlikely to be appropriate to reject the application for leave to appeal out of time after the substantive appeal has been heard.

204. In the present case, given that BM is a layperson, and laboured under substantial difficulties in relation to the initiation of the appeal, I would not regard a delay of some four months after the expiry of the stipulated period in which to appeal as being sufficient to refuse BM the leave that she has sought. Accordingly, when I make the formal orders on this appeal, I will grant the relief sought by BM in par 1 of the summons.

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Decision last updated: 11 March 2016