Re M (No 8)

[2016] NSWSC 641

Supreme Court

New South Wales

Medium Neutral Citation:	Re M (No 8) [2016] NSWSC 641
Hearing dates:	On the papers
Date of orders:	18 May 2016
Decision date:	18 May 2016
Jurisdiction:	Equity
Before:	Robb J
Decision:	(1) Extend, pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 50.3(1)(c), the time for the plaintiff to file the summons in these proceedings to 15 December 2014 (2)   Order that the claims for relief in the plaintiff’s summons are otherwise dismissed
Catchwords:	CIVIL PROCEDURE -- HELD extension of time for plaintiff to file her summons for leave to appeal under s 91 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care Act) granted CHILDREN – judgments and orders – application for leave to apply for the rescission or variation of care orders under s 90 of the Care Act – completion of proceedings the subject of the judgment in Re M (6): [2016] NSWSC 170 – HELD plaintiff has not demonstrated that her conduct is likely to change in a way that would justify the court in exploring the answers to the questions set out at [194] of the principal judgment – questions not considered – plaintiff’s application dismissed
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Re M (No 6) [2016] NSWSC 170
Category:	Consequential orders (other than Costs)
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: A 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
Publication restriction:	None

Judgment

1. These reasons for judgment concern an appeal by a mother, who I will call BM, 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 made by BM under s 90 of the Care Act for leave to apply to rescind or vary care orders made in respect of three of her five children, RM, HM and ZM.

2. I published my principal reasons for judgment on 3 March 2016: see Re M (No 6) [2016] NSWSC 170.

3. Apart from stating at [204] that I would make the order sought by BM in par 1 of her summons, in which she sought an extension of time in which to appeal, I did not make any other final orders.

4. I found at [178] that, at this stage, there is no realistic possibility that parental responsibility will be restored to BM in respect of her children RM, HM and ZM. That finding has the consequence that I could not grant the order sought by BM, in par 2 of her summons, giving unrestricted leave under s 90 of the Care Act to BM to apply generally for a rescission or variation of the care orders made by the District Court.

5. As I said at [182], that left the question as to whether BM should be given leave to apply for the rescission or variation of the care orders insofar as they deal with BM’s access to the children, and contact between the siblings.

6. My primary concern related to the issue of BM’s contact with ZM. Shortly put, the District Court imposed a restricted regime concerning BM’s contact with ZM, who is the youngest child. ZM’s father, MS, who has parental responsibility for ZM, saw fit, for what I considered to be laudable reasons, to expand the amount of contact which ZM had with his mother. However, by reason of BM’s conduct, which I canvassed at some length in my primary judgment, the expanded contact regime did not work.

7. That led me to observe, as I said at [183]: “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 is 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”.

8. The problem was that MS’s attempts to allow greater contact between BM and ZM than what the District Court’s orders required were thwarted by BM’s own conduct, which included a persistent inability to adhere to the boundaries of the contact reasonably established by MS; repeatedly making defamatory and unsustainable complaints to the Police and the Department about the conduct of MS, and the living conditions in the home provided by MS for ZM; and pursuing an unsustainable campaign that MS’ adult daughter regularly drove ZM in her car in circumstances where he was not properly restrained in accordance with applicable regulations.

9. I reached the following interim conclusion:

188   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.

189   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).

190   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.

191   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.

192   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.

193   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.

194   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?

10. I acknowledge that my request for the assistance of the parties on these questions involved an exploration at the margins of the relevant statutory powers contained in the Care Act, for the purpose of permitting a consideration of whether there were any useful orders that the court could properly make, to facilitate something of value being gained out of these protracted and unfortunate proceedings. I am indebted to the legal representatives of the defendants for their persuasive and thoughtful submissions in response to my request.

11. It is appropriate, however, to start with a consideration of the supplementary submissions provided to the court by BM. I did not, of course, put the defendants to the trouble and expense of responding to my questions simply to see whether BM herself would respond in a way that would give me some confidence that it would be worthwhile making any special orders in this case, assuming that I had the power to do so. However, in the nature of things, it was likely that BM’s response would be enlightening as to whether it would be worthwhile for the court to make any orders whose effectiveness was premised on the likelihood that BM would, over a significant period, substantially change her conduct, as canvassed in the primary judgment.

12. Unfortunately, the most relevant aspect of BM’s submissions in response is that, save for one exception, they do not mention the conduct that I dealt with at length in the primary judgment, which caused me to form the view that I must dismiss BM’s application, unless there was sound reason for believing that BM would abandon that conduct. There is no acknowledgement of the conduct; or that the conduct was entirely misguided and unjustifiable; or any offer or undertaking that, given one last chance, BM would cease that conduct.

13. The one exception is that BM has acknowledged that “it was wrong of me to vent on change.org”, which was a reference to the matter I dealt with in [142] of the primary judgment, concerning a petition that BM set up through her Facebook account, which was addressed to the then Prime Minister Mr Tony Abbott, and which put as its primary submission that the Care Act is unconstitutional, and that the Department was acting contrary to that Act.

14. Otherwise, BM’s submissions consist of a lengthy recitation, expressed in lay terms, of a substantial number of decisions, which BM has submitted would justify the court making various positive orders in her favour; particularly in respect of the court accepting undertakings from BM, as a condition for making the orders that she seeks in relation to access to her three younger children, and sibling contact.

15. As a result of BM’s submissions, I have formed the view that the court would not be justified in proceeding on the basis that there is any likelihood that, in the near future, BM will have the insight and discipline necessary to change the way she conducts herself in relation, in particular, to access to ZM, and her complaints to various authorities concerning the manner in which MS has been exercising his parental responsibility in respect of ZM.

16. Ultimately, all of the defendants submitted that the only course open to the court, on the evidence and submissions before it, was to dismiss BM’s summons, other than in respect of an order permitting her to file her summons out of time.

17. I have had particular regard to the fact that MS has joined in asking the court to dismiss the balance of BM’s summons. MS, in his own capacity, and in his capacity as the person with parental responsibility for ZM, is clearly the person who has been most inconvenienced and harassed by BM’s conduct. The primary purpose of my seeking to explore the possibility that exceptional orders could be made in the present case, to give BM an incentive to change her ways, was to increase the possibility that the level of inconvenience and harassment experienced by MS could be alleviated. In those circumstances, the court should not lightly ignore the stance taken by MS that the court should dismiss BM’s application.

18. In these circumstances, the present case is not an appropriate one for the court to undertake any detailed examination of, or make any final rulings in relation to, the questions that I posed to the parties.

19. I acknowledge the strength of the argument put by the defendants, in relation to the question in [194(2)] of the judgment, concerning the issue of whether the court has power under the Care Act to grant leave to an applicant to apply to rescind or vary a care order, on condition that the application only be made if the applicant’s conduct in the intervening period has been such as to give the applicant an arguable case that the care order should be rescinded or varied. In essence, the submission was, that the Care Act requires that leave only be granted having regard to the conduct of the applicant up to the time judgment is given, taking into account that the question is whether the applicant will have an arguable case when the application to rescind or vary the care order is actually made. According to the argument, the court does not have power to grant leave subject to a condition the satisfaction of which requires the applicant’s conduct to change before the application is made.

20. For the reasons given above, I have accepted the defendants’ alternative submission that, even if the court had the power to grant leave subject to a condition of the type contemplated in question (2), the present is not a case in which that power should be exercised. That is because of the improbability that BM’s conduct will satisfy the condition – because she has not shown that she has even recognised the need to change her conduct – and the practical difficulties that would be involved in determining whether the condition had been satisfied.

21. It may never be necessary for the court to explore the questions that I posed in [194] of the judgment, but whether or not that be the case, it should be left to an application in which the facts genuinely raise the need for the court to consider those questions.

22. I am satisfied by the submissions that I have received that I should make the following orders:

23. The court:

1. Extends, pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 50.3(1)(c), the time for the plaintiff to file the summons in these proceedings to 15 December 2014.

2. Orders that the claims for relief in the plaintiff’s summons are otherwise dismissed.

24. I note that none of the defendants have asked for any order that the plaintiff pay their costs of the proceedings.

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Decision last updated: 07 June 2016