JL v Secretary, Department of Family and Community Services

1. [1]

   McCOLL JA: The applicant, JL, appeals against a decision of Olsson DCJ of 31 January 2013 in the District Court refusing to grant her leave to apply to rescind orders of the Children’s Court pursuant to which three of her children were placed in the long-term parental responsibility of the Minister for Community Services: L v Director-General, Department of Family and Community Services & Ors (District Court of New South Wales, 31 January 2013, unrep).

2. [2]

   JL originally filed a notice of appeal asking that the children be returned to her responsibility. The notice of appeal was not competent as an appeal to the District Court from the Children’s Court does not lead to a “judgment in an action” within the meaning of s 127 of the District Court Act 1973 (NSW): Colquhoun v District Court of New South Wales [2014] NSWCA 460 (at [7]) per Leeming JA (Beazley P and Barrett JA agreeing). It should be dismissed.

3. [3]

   In due course an amicus curiae, Ms L Goodchild of counsel, was appointed by the Court to assist JL. Ms Goodchild prepared a summons which was filed on 10 March 2014 seeking an order in the nature of certiorari pursuant to s 69 of the Supreme Court Act 1970 (NSW) quashing the whole of the decision made on 31 January 2013 and an order remitting the matter to the District Court to be heard and determined according to law. The grounds set out in the summons were based on JL’s affidavit filed on 28 February 2013.

4. [4]

   The Supreme Court’s jurisdiction to grant prerogative relief pursuant to s 69 of the Supreme Court Act in cases concerning the care and protection of children and young persons is preserved by s 247 of the Children & Young Persons (Care and Protection) Act 1998 (NSW) (the “Care Act”): Re M (No 5); BM v Director-General of Family and Community Services [2013] NSWCA 253 (“Re M”) (at [15]) per Sackville AJA (Macfarlan and Ward JJA agreeing). To obtain relief, JL must “establish an error of law on the face of the record of the court below, or jurisdictional error”: Re Felicity; FM v Secretary of Department of Family and Community Services (No 3) [2014] NSWCA 226 (“Re Felicity”) (at [8]) per Basten JA (Ward and Emmett JJA agreeing).

5. [5]

   JL represented herself but was assisted in some respects by the amicus curiae. The Secretary (formerly Director-General and for the sake of consistency with previous judgments, referred to here as such), Department of Family and Community Services was represented by Mr T Allen of counsel who also appeared before the primary judge. Mr and Mrs RS, the carers of two of JL’s children, were represented by Mr M Anderson of counsel. The children were represented by an Independent Legal Representative (the “ILR”), Ms E Lawson of counsel. She had independent status because JL’s children were under 12 and presumed incapable of giving proper instructions: see s 99, s 99A(2), s 99B and s 99D(b), Care Act.

6. [6]

   At the commencement of the hearing of the proceedings, the Court gave the following directions:

Factual Background

1. [7]

   JL is the biological mother of five children, GA (born on 29 May 1999), GI (born on 21 October 2003), AR (born on 26 July 2005), AA (born on 26 January 2007) and Henry (also known as “J” or “JL”) (born on 22 September 2010).

2. [8]

   These proceedings concern GI, AR and AA. JL also appealed to the District Court seeking to challenge orders of the Children’s Court placing Henry under the parental responsibility of the Minister until he attained 18 years of age. She was unsuccessful: LXXX v Director-General, Department of Family and Community Services, Lakatos DCJ (District Court of New South Wales, 2 November 2012, unrep) (“Re Henry DC”). At the time of the hearing before the primary judge on 14 January 2013, JL had filed an appeal dated 26 November 2012 from Re Henry DC, in due course supplanted by a summons seeking prerogative relief filed on 10 March 2014. The two proceedings were listed for hearing on consecutive days. Judgment in Re Henry [2015] NSWCA 89 (Re Henry CA) is being given contemporaneously with this judgment.

3. [9]

   GA (the eldest child) was adopted by carers on 2 March 2012, and is not the subject of any claim for relief in either case.

4. [10]

   Pseudonyms are used for the children both because of the order the Court made as set out in [6] above and because s 105 of the Care Act prohibits the publication of names and identifying information of a child or young person with respect to whom proceedings before the Children’s Court are brought. Pseudonyms are used for JL and for Mr and Mrs RS because a reference to the name of a child or young person in s 105 includes a reference to any information, picture or other material that identifies the child or young person, or is likely to lead to the identification of the child or young person: s 105(4), Care Act.

5. [11]

   Some uncontroversial facts are extracted from Re Henry DC if not otherwise referred to in the primary judgment or uncontroversially referred to in submissions.

6. [12]

   GI, AR and AA have the same father, GK, who died in August 2008: Re Henry DC (at [5]).

7. [13]

   On 4 March 2009 JL voluntarily entered into a temporary care agreement (s 151, Care Act) with the Director-General in relation to GA, GI, AR and AA (Re Henry DC (at [5])), who were then taken into care: primary judgment (at [3]). On 9 May 2009 the temporary care agreement was extended for three months: s 152(2), Care Act.

8. [14]

   On 31 August 2009 the Director-General commenced care proceedings at Bidura Children’s Court in respect of the four children. On 3 September 2009 pursuant to s 69 of the Care Act, an interim care order was made placing AR and AA in the parental responsibility of the Minister, pending final orders, until the age of 18 years: primary judgment (at [5]). Interim care orders were presumably made at that time in relation to GA and GI although no party identified such orders in the papers before this Court.

9. [15]

   On 21 December 2009 following a hearing at which JL contested the issue as to the children being in need of care and protection (s 71 and s 72, Care Act), Magistrate Baptie found that the children were in need of care and protection pursuant to s 72 of the Care Act: primary judgment (at [7]). Her Honour continued the interim care order allocating parental responsibility for the four children to the Minister.

10. [16]

    On 22 December 2009 an assessment order was made pursuant to s 53 and s 54 of the Care Act appointing Ms Greta Goldberg, a clinical psychologist and Children’s Court Clinician, to assess, in substance, JL’s capacity to carry out her parental responsibility for the children. The report she prepared was released to the parties on 25 March 2010: primary judgment (at [8]). That report was before the primary judge.

11. [17]

    Henry was conceived while his father, RN, a 26-year old Indian student, was in Australia on a two-year study visa. In early October 2010 RN signed a letter indicating that he did not wish to have any responsibility for Henry: Re Henry DC (at [7] and [8]).

12. [18]

    Two days after his birth Henry was taken into care by the Director-General, purportedly in exercise of the power to do so conferred by s 43(1) of the Care Act. That action was based upon JL’s incapacity to care for her other children, the subject of the December 2009 order, and upon concerns about her mental health: Re Henry DC (at ([7]).

13. [19]

    On 27 September 2010 care proceedings were initiated in respect of Henry in the Children’s Court. On 30 September 2010 an interim care order was made in relation to him, allocating parental responsibility to the Minister: Re Henry DC (at [8]).

14. [20]

    On 15 November 2010 his Honour Judge Marien, the President of the Children’s Court, made final care orders allocating parental responsibility for all aspects (other than contact) to carers in respect of AR and AA until each child attains the age of 18 years. On the same day his Honour made final orders allocating parental responsibility to the Minister in respect of GI until she attained the age of 18 years. The Director-General informed the Court that his Honour’s judgment was before the primary judge.

15. [21]

    Marien P’s final care orders were made following a concession by JL, who was then legally represented, that there was no realistic possibility of the children being restored to her care as at that date. In making the orders, his Honour said:

16. [22]

    On the same day Marien P adjourned the proceedings concerning Henry: Transcript, Dept of Human Services, Community Services v A, AA, GI, GA and Henry, 15 November 2010 (at 23).

17. [23]

    On 31 May 2012 JL brought an application pursuant to s 90 of the Care Act seeking leave to rescind the final care orders made by Marien P in respect of AA, AR and GI.

18. [24]

    In her application for leave to rescind the final care orders JL identified the significant changes in relevant circumstances since the orders were made as being her engagement in “the past few months” every two weeks with a psychiatrist, Dr Ahmed, a medical report from a Dr Bereny, apparently a treating doctor of the four children at the time of their removal stating she was a “capable and attentive mother to all four children”, a report from a Dr Allnut in March 2011 indicating “a [sic, “I”] only endured [a] one-off episode” (an apparent reference to what JL asserted was a “drug-induced psychosis”, which occurred after she said her drink was “spiked”), the completion of parenting and assertiveness seminars, a medical report from another psychiatrist, Dr Jacobs, ruling out post-natal depression or any mental illness as at October 2010, and the fact that contact supervision reports “shine with a mother that is brilliant, capable, unconditionally loving”.

19. [25]

    The application was heard by Children’s Court Magistrate Hogg on 21 August 2012. His Honour refused to grant leave and dismissed the application.

20. [26]

    On 22 August 2012 JL filed a summons in the District Court seeking to challenge Magistrate Hogg’s decision. The primary judge treated this summons as an appeal pursuant to s 91 of the Care Act: primary judgment (at [12] – [13]).

Legislative framework

1. [27]

   The general legislative framework is set out in Re Henry CA and need not be repeated, save to the extent specific to the particular features of JL’s application.

2. [28]

   Section 90 of the Care Act pursuant to which JL’s application was made relevantly provides:

3. [29]

   Section 82 enables the Children’s Court when making, relevantly, a care order allocating parental responsibility for a child to a person (including the Minister) other than a parent, to order a party to the proceedings to prepare a written report concerning the suitability of the arrangements for the care and protection of the child. The report is required to include an assessment of progress in implementing the care plan, including progress towards the achievement of a permanent placement: s 82(2)(b).

4. [30]

   A party to proceedings who is dissatisfied with an order of the Children’s Court (other than an interim order) may appeal to the District Court against the order pursuant to s 91. Such an appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence on which the order was made may be given on the appeal: s 91(2). In addition to any functions and discretions that the District Court has apart from s 91, the District Court has, for the purposes of hearing and disposing of an appeal, all the functions and discretions that the Children’s Court has under Chapter 5 or Chapter 6: s 91(4). The decision of the District Court in respect of an appeal is taken to be the decision of the Children’s Court and has effect accordingly: s 91(6). The provisions of Chapter 6, which deal with Children’s Court procedure, apply to and in respect of the hearing of an appeal under s 91 in the same way as they apply to and in respect of the hearing of a care application under Chapter 6: s 91(8).

5. [31]

   The effect of these provisions is that s 91 “makes it clear that an appeal … from the Children’s Court to the District Court is by way of a new hearing and that the District Court has all the functions and discretions at the disposal of the Children’s Court under Chapters 5 and 6 of the Act”: “V V” v District Court of New South Wales [2013] NSWCA 469 (“V V”) (at [23]) per Barrett JA (Ward and Leeming JJA agreeing).

Primary judgment

1. [32]

   After setting out the background, the primary judge set out the objects and principles of the Care Act and the legal principles relating to s 90(1). She noted (at [24]), referring to Re Campbell [2011] NSWSC 761 (at [38]), Slattery J’s statement that “[t]he legislative policy behind the requirement for leave in s 90(1) 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”.

2. [33]

   Her Honour next noted (at [25]), that the effect of s 90(2A) and s 90(6) of the Care Act was that the court must determine whether JL had an arguable case for the making of an order to rescind or vary the care order, an exercise which required the court to “look ahead” at relevant s 90(6) considerations: Re Campbell (at [39]).

3. [34]

   Her Honour next noted (at [26]) that in order to succeed, JL had to satisfy the court that there had been “a significant change in relevant circumstances since the care order was last made or varied”. That meant, she said, “a change … of sufficient significance to justify the court’s consideration of an application for rescission or variation of the existing order”, referring to S v Department of Community Services [2002] NSWCA 151; (2002) 29 Fam LR 144 (at [39]) per Davies AJA (Heydon and Hodgson JJA agreeing). It did not involve establishing that if leave was granted, the applicant would be entitled to the order sought, merely that there was a change of sufficient significance to justify consideration of the rescission/variation application: primary judgment (at [26] – [28]). However, even if that step was satisfied, her Honour noted, the court retained a general discretion whether or not to grant leave, such discretion to be exercised in accordance with s 90(2A): primary judgment (at [31]). The most frequently analysed consideration was whether the applicant had ‘an arguable case’, “one that is reasonably capable of being argued in the sense that it [is] an argument which has some prospect of success”: primary judgment (at [32] – [33]).

4. [35]

   The primary judge took as the starting point for her consideration the orders made by Marien P on 15 November 2010: primary judgment (at [30]).

5. [36]

   As JL’s application was for orders rescinding, rather than varying, the care orders, her Honour observed (at [36]) that if the court granted leave to proceed, the Children’s Court would be required to consider whether there was a realistic possibility of the children being restored to her.

6. [37]

   JL pointed to the following circumstances she said had “changed significantly” since November 2010 when the final care orders were made:

   1. (1)

      An improved financial position (primary judgment (at [38] ff));

   2. (2)

      An improved mental and emotional situation (primary judgment (at [45] ff));

   3. (3)

      Parenting capacity (primary judgment (at [51] ff));

   4. (4)

      Improved education in the area of parenting and nutrition and health (primary judgment (at [64])).

7. [38]

   In relation to her financial position, JL contended that the significant change was that she had got rid of debt and gained skills in order to obtain employment: primary judgment (at [41]). The primary judge set out the facts that, at the time the children were taken into care in 2009, JL owned a two bedroom unit which she had since sold, used part of the proceeds to pay outstanding debts and retained $50,000. At the time of the hearing, she said she was living in a studio apartment. She said that if her children were restored she would rent a house “somewhere that was affordable”: primary judgment (at [39]).

8. [39]

   She said that “the significant change [was] that she has got rid of debt and gained skills in order to obtain gainful employment”: primary judgment (at [41]).

9. [40]

   At the time of the hearing, JL was 42 years of age. She was not working but was studying full time for a fitness instructor’s certificate. The evidence before the primary judge indicated that since leaving school JL had worked in childcare, albeit without any TAFE or equivalent childcare certificate. She had undertaken some courses in massage therapy but could not work in that field due to a physical limitation. She was undertaking the fitness instructor’s course with a view to securing employment: primary judgment (at [39] – [40]).

10. [41]

    The primary judge said (at [42]):

11. [42]

    The primary judge noted that, whilst poverty was not a barrier to parents having custody of their children, JL:

12. [43]

    The primary judge concluded (at [44]) that she was not satisfied there had been a significant change in JL’s circumstances in this respect to warrant a review of the care orders.

13. [44]

    Her Honour then turned to JL’s submission that there had been a significant change in her mental and emotional situation in the following respects:

14. [45]

    Her Honour noted (at [46]) that, although JL devoted a considerable part of her submissions to attempting to prove that she did not have a mental illness, it was not part of the Department’s case that she suffered from such a condition. Rather, the Children’s Court clinician, Ms Goldberg, recorded in her report of 18 March 2010, that “the Department received risk of harm reports on a fairly regular basis from about August 2007 until March 2009 when the children were removed” and that “concerns were raised about [JL’s] mental health, it seems, because of the very poor and dirty condition of the premises in which she and the children were living”. However, her Honour noted that JL had been assessed by a number of psychiatrists, all of whom said “there is insufficient evidence to support any diagnosis of a discernible mental illness.” Her Honour added that the fact of having such a condition would not of itself preclude JL from having custody of the children.

15. [46]

    The primary judge was prepared to accept (at [47]) that JL’s grief over the loss of her husband had undergone some resolution in the period from 2009 to the hearing so that to that extent there had been a change of circumstances. However, her Honour observed (at [48]) that the period under consideration was from November 2010 when the final care orders were made. Secondly, JL’s evidence in relation to this issue was “unsupported by any information from her treating doctor and psychiatrist as to the advancements or improvements that she had made in response to those losses”.

16. [47]

    Her Honour then said:

17. [48]

    The primary judge then turned to the issue of JL’s ability to undertake appropriate parental duties. As will be apparent, JL’s submissions in this respect seemed to range from an assertion that there was nothing wrong with her parenting capacity, but also to assert that circumstances which had been of concern in this respect had changed.

18. [49]

    The primary judge identified (at [51]) the fundamental problem with JL’s application as being that from 2009 to date:

19. [50]

    The primary judge recorded that JL told the court “she did not know why the children were removed in the first place and said that she was forced to agree to a temporary care order”: primary judgment (at [52]). Her “evidence in submissions focused on disproving the suggestion that she had a mental illness and attempted to demonstrate that she was ‘a brilliant’ mother”, a task JL approached by reference to various doctor’s reports: primary judgment (at [53] – [54])

20. [51]

    The primary judge dealt with the reports on which JL relied. The first was a report of Dr Peter Campbell, a paediatrician, dated 17 July 2012. He said he had “only seen [the children] in the first instance at birth and the first six weeks and therefore have no insight into further standard of her care [sic]”. He was not concerned about JL’s care for her children “in the newborn phase”: primary judgment (at [54]). Another, Dr Bereny, “saw JL and the children for multiple consultations between late 2006 and late 2008” and recalled JL as “being a competent and caring mother in caring for 4 young children during this time”: primary judgment (at [55]).

21. [52]

    The primary judge said (at [56]) that JL “did not seem to be able to address the fact that these reports were very limited in their scope and pre-dated the time at which the children were taken into care and following.” Her Honour observed that neither doctor had apparently seen the children since 2008 when they were very young, and JL’s husband was still alive. She added that “[JL] did not address the obvious discrepancy between those reports and the reports of and to the Department … in 2009 except to say, literally, that the latter were ‘lies’”.

22. [53]

    Her Honour then said:

23. [54]

    The primary judge illustrated the proposition in [58] by referring (at [59]) to JL’s “somewhat extraordinary submission that another significant change in circumstance was that the eldest child, GA is no longer in the family.” Her Honour also referred (at [60]) to a submission made by Ms Muggenthaler, the Independent Legal Representative (s 99, Care Act), referring to an independent risk of harm report from a babysitter who apparently worked for JL, who stated, by comparison with impoverished and disadvantaged communities with which she had experience that:

24. [55]

    Her Honour recorded (at [61]) that JL’s response was to assert that the person who made the risk of harm report was not in court to give evidence and had not produced any photographs but, even if it was the case, she had employed the babysitter to help, which included cleaning. She also complained that the “babysitter had a grudge against her because she kept taking her car parking spot”: primary judgment (at [62]).

25. [56]

    The primary judge concluded (at [63]) in this respect that she could not find there had been a change in circumstances as JL did “not acknowledge that there were any issues in 2010 that required her attention and response” insofar as her ability to undertake parental duties was concerned.

26. [57]

    The next matter the primary judge addressed was JL’s assertion that her education and health had undergone a significant change. JL relied upon the fact that she said she had undertaken a number of parenting courses and gained a lot of insight including the importance of positive reinforcement, equal attention and the need to respect children and had also learnt a lot about nutrition, all of which she had tried to apply in contact visits: primary judgment (at [64]).

27. [58]

    The primary judge found (at [65]) that the evidence from the Department and caseworkers was positive about JL’s behaviour and involvement at contact visits. (This appears to have been a reference to Ms Fairfax’s affidavit of 23 July 2012.) Her Honour also observed (at [65]) that “in the absence of any acknowledgement at all that there were defects in her parenting skills that led to the removal of the children in 2009, it is difficult to see how the attendance at the parenting courses represents a significant change in circumstances.” In any event, the primary judge recorded, “there was no evidence about the content of the courses, nor – critically – her level of participation and engagement.”

28. [59]

    The primary judge concluded (at [66]) that despite having been directed to the limited grounds of a s 90 appeal, a fundamental difficulty with JL’s approach was that she “gave evidence and made submissions as if it were a review of the decision to place the children in care”. While her Honour recognised that was not “necessarily inconsistent with” a change in circumstances case, the difficulty confronting JL was “that she did not believe that there had been anything wrong with her parenting skills or the development of the children that would have warranted the involvement of the Department in the first place, and that consequently there was no reason to change anything”.

29. [60]

    Her Honour did not doubt JL loved her children very much. However, she concluded that JL:

30. [61]

    Her Honour recorded [at [69]) that Mr Allen, who appeared for the Director-General, had submitted that Dr Goldberg “had observed that [JL] had unrealistic expectations that her children would be returned to her and unrealistic perceptions about her parenting skills which had been assessed as poor.” She also recorded (at [70]) that Dr Goldberg had said “the bonds between the mother and children were ambivalent, shallow and insecure and that [JL] was unable to meet the children’s needs particularly, emotionally and psychologically [and] [t]his inability … caused significant emotional and developmental impact upon the children” and (at [71]) that JL “did not address any of these issues”.

31. [62]

    The primary judge added (at [72]) that there was no report from Dr Ahmed that “indicates either that he has been given the relevant material to read or that he has conducted structured and appropriate therapy designed to address those issues.” Absent such a report, her Honour concluded, it was not possible “to find that there has been a change in circumstances – significant or otherwise – since the date of the orders with respect to the mother’s emotional and psychological state.”

32. [63]

    The primary judge then turned to the factors in s 90(2A). It is unnecessary to set out explicitly each of her Honour’s findings. However, relevantly, the primary judge noted the nature of the application, the age of the children, the length of time they had been in the care of their present carers and the Director-General’s plans for them: primary judgment (at [73(a)] – [73(d)]).

33. [64]

    Her Honour described JL’s plans for the children as “vague and poorly considered”: primary judgment (at [73](d)). Her Honour then said:

34. [65]

    The primary judge set out (at [73(f)]) the contents of s 82 reports concerning the suitability of the arrangements in place concerning the parental responsibility with the foster families for AR, AA and GI, all of which were positive.

35. [66]

    Her Honour found (at [74]) that there had been no significant change in relevant circumstances since the date on which the care orders were made, and (at [75]) that “each of the children is in a stable, caring and appropriate long term placement [which] in the case of AR and AA … has been for most of their lives and must therefore be of critical importance to their sense of security and attachment.” Accordingly, her Honour concluded (at [76]) that “on the present material” JL did not have an arguable case for rescission of the care orders.

36. [67]

    The primary judge therefore refused the grant of leave and dismissed the appeal.

Grounds for relief

1. [68]

   JL’s summons raises the following grounds for relief as cross-referenced to her affidavit on which they were based.

2. [69]

   In addition to the grounds the amicus curiae formulated in the summons, JL made a variety of allegations of bias and denial of procedural fairness on the part of the primary judge the details of which are set out below in explaining her submissions.

JL’s Submissions

1. [70]

   JL’s submissions were voluminous and found in many documents with varying degrees of repetition. As is perhaps understandable given that she is self-represented (and, in any event, was not the author of the summons) her submissions were not structured so as to address the specific grounds raised in the summons, nor to identify whether she contended any particular complaint identified an error of law on the face of the record or jurisdictional error.

2. [71]

   The substance of her complaints can be gleaned from the summons, her affidavit filed on 28 February 2013 in support of her notice of appeal, her oral submissions and the matters advanced by the amicus curiae to the extent they were not inconsistent with her submissions. In addition I have considered a matter the Director-General addressed concerning JL’s attempt to rely upon evidence from Dr Ahmed as it went to JL’s denial of procedural fairness complaint.

3. [72]

   The first group of JL’s submissions concern her complaints of bias and want of procedural fairness.

4. [73]

   JL’s basic submission was that the primary judge denied her a fair trial as her Honour “failed to follow correct procedure and showed bias towards the Department … many of her decisions were based upon logically probative material [sic, as in original] rather than ‘evidence’ basically Judge Olsson failed to act fairly”. She contended that her Honour showed bias “toward the Department … in unfair procedural practice, and “by rejecting my proven success and runs on the board and my chance of restoration”. She contended that she had put forward evidence that restoration was a realistic possibility, that “a coherent programme had commenced” with a “care plan drafted by the Department”.

5. [74]

   JL submitted that the primary judge was biased and/or denied her procedural fairness in rejecting, or alternatively failing to give sufficient weight to, the 22 August 2012 report of Ms Goldberg. She argued that that report was much more positive about her parenting capacity and considered restoration of Henry a realistic possibility, thus providing evidence that there was a realistic possibility of restoration of the older children and that she was a capable mother. She contended that the report prompted the Department to draw up a care plan for the restoration of Henry to her care and to hold a meeting with her to discuss both the restoration and care plans. She submitted that the preparation of that care plan was “the major change” yet the primary judge had not referred to it. She complained that the care plan had not been produced, despite being subpoenaed. She contended this was “evidence” that the trial was unfair. She also complained that the report of Ms Goldberg to which the primary judge did refer was three years out of date and referred to GA who was no longer involved in the proceedings and did not consider the “positive changes” she had made. JL also submitted that the primary judge had failed to consider that AR was being subjected to medical treatment with which she did not agree as evidence of the primary judge’s bias towards the Director-General.

6. [75]

   In her 28 February 2013 affidavit, JL referred to paragraph [49] of the primary judgment (see [47] above). She contended that on the first day of the hearing she had asked to have the opportunity to contact Dr Ahmed to give evidence, but that the primary judge had said she “doubted he would have time at such late notice”. She argued this constituted a denial of procedural fairness, particularly in circumstances where she contended her Honour gave the Director-General leave the same day to subpoena Dr Ahmed’s records.

7. [76]

   Secondly, JL submitted that the primary judge erred in basing her decision on past reports and material which did not take into account the circumstances at the time of the application. She relied, as a major change of circumstances, on the facts that as GA had been adopted, she had one less child to look after and, too, that AR, AA and GI were four years older than when removed.

8. [77]

   Thirdly, JL submitted that the primary judge failed to take into account positive accounts of her behaviour given by doctors and caseworkers, including reports of her behaviour during contact visits. She submitted the primary judge failed to analyse the medical evidence, and substituted her own opinion of JL’s parenting capacity rather than accepting the evidence of Dr Campbell and Dr Bereny. She also complained the primary judge failed to take into account a report by a caseworker, Ms Elizabeth Fairfax, recommending restoration.

9. [78]

   Fourthly, JL submitted that the primary judge failed to take into account or gave insufficient weight to the fact that she had undertaken numerous self-improvement courses, including parenting courses and a certificate in childcare. She asserted her Honour’s omissions in this respect included the fact that she had worked in child care centres for four years.

10. [79]

    Fifthly, JL contended that the primary judge failed to consider, or properly apply, the object in s 8 of the Care Act to consider the best interests and wellbeing of the children involved, and, too, s 9(2)(c) set out above (at [27]). She repeated the statements she had made to the primary judge that the care orders should never have been made.

11. [80]

    Sixthly, JL submitted that the primary judge failed to take into consideration s 90(6)(b) of the Care Act requiring the wishes of the child to be taken into consideration before an order is made to rescind or vary a care order. She contended that the primary judge ignored the fact that in an unsupervised visit to which she had deposed in an affidavit before her Honour, AA had asked that he and AR be placed back in her care until they reached 18 years of age.

12. [81]

    Seventhly, JL submitted that the primary judge failed to take into account Arts 9 (“States Parties shall ensure that a child shall not be separated from his or her parents against their will”), 12 (“States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child”) and 13 (“[t]he child shall have the right to freedom of expression”) of the United Nations Convention on the Rights of the Child 1989 (“CROC”).

13. [82]

    Finally, JL submitted that the primary judge failed to have regard to a number of matters, none of which appear to be matters relevant to the issue before her Honour including inadequate responses to subpoenas, the circumstances in which GA was adopted, and s 79(3) of the Care Act (“Order (other than guardianship order) allocating parental responsibility”). It is unnecessary to deal with these matters.

Amicus Curiae’s submissions

1. [83]

   The submissions of the amicus curiae set out the relevant background to the proceedings and the applicable legislative provisions and legal principles. It is unnecessary to repeat these submissions as they appear earlier in these reasons by way of factual background or relevant statutory materials or, to the extent that they are inconsistent with what appears in those sections, can be taken not to have been accepted. This is particularly so insofar as the amicus curiae drew the Court’s attention to the “unacceptable risk” test as articulated in DFaCS (NSW) and the Colt Children [2013] NSWChC 5 at [168], [265], [318]. The Director-General took issue with this judgment insofar as it appeared to suggest such a test was the sine qua non of every decision under the Care Act. No oral submissions were addressed to this issue and it is unnecessary to express a concluded view about it.

Director-General’s submissions

1. [84]

   The Director-General submitted first that the grounds set out in JL’s summons did not disclose an error of law on the face of the record amenable to relief in the nature of certiorari. Secondly, that the primary judge had properly given detailed consideration to the matters JL had advanced as constituting changed circumstances, had made relevant findings and had concluded that JL had not established a significant change of circumstances warranting review of the care orders.

2. [85]

   Secondly, the Director-General submitted that for the purpose of considering the ambit of the relief JL could seek, it was necessary to identify the “record”. The Director-General contended that JL’s affidavit referred to as “AA” in the summons, did not form part of the “record”.

3. [86]

   Thirdly, the Director-General submitted that grounds 2 to 9 in the summons did not identify errors of law on the face of the record amenable to relief in the nature of certiorari, but rather constituted an impermissible attempt to reargue the facts.

4. [87]

   In further response to grounds 2 and 3, the Director-General submitted that the primary judge had correctly rejected Ms Goldberg’s 2012 report. Alternatively, the Director-General submitted that even if Ms Goldberg’s report ought to have been admitted, the Court would not remit the matter for further consideration as it could not have made a difference having regard to the evidence Ms Goldberg gave before Lakatos DCJ in the Re Henry proceedings. In that evidence, Ms Goldberg had said that restoration of Henry was not a realistic possibility as JL had not engaged in, and had resisted, necessary therapy and was not able to meet Henry’s needs, especially if the elder children were also restored.

5. [88]

   Fourthly, the Director-General submitted that the primary judge’s findings of facts were relevant to the issues her Honour was required to determine, were open to her in law, and were a proper basis for her Honour to reject JL’s application for leave under s 90(2) of the Care Act.

6. [89]

   Fifthly, the Director-General submitted that JL did not seek to rely upon the CROC before the primary judge, and further, that the CROC is not a mandatory consideration failure to refer to which grounds an application for judicial review, referring to Re Tracey [2011] NSWCA 13; (2011) 80 NSWLR 261.

7. [90]

   Sixthly, the Director-General submitted that JL’s complaint that the primary judge should have considered AR’s request to live with her (referred to in JL’s affidavit of 25 July 2012) was misconceived as the considerations in s 90(6) were only mandatory once leave has been granted and the application for rescission is being determined.

8. [91]

   The Director-General accepted that it was open to the primary judge to consider the matters to which s 90(6) refers in determining whether an applicant has an arguable case. However the Director-General submitted that as the primary judge found JL had failed to establish a sufficient change of circumstances, the issue of an arguable case did not arise. The Director-General also submitted that had the primary judge given JL leave to apply to rescind the care orders, evidence which went beyond JL’s evidence of AR’s wishes would have been tendered.

9. [92]

   The Director-General accepted that for the purpose of considering JL’s complaint of denial of procedural fairness or bias, the Court could have regard to the transcript of the proceedings before the primary judge. However, he contended that JL had not identified any passage of the transcript which could support a complaint of bias. Rather, the Director-General submitted JL’s allegation of bias was no more than a complaint that the primary judge did not find the facts for which she contended and that did not amount to bias.

10. [93]

    Insofar as JL complained she was denied procedural fairness because she was not permitted to call evidence from Dr Ahmed, the Director-General submitted that email correspondence about his willingness to give evidence was tendered (exhibits A and B) and was adverse to JL. Further, the Director-General pointed to a passage in the transcript in which the primary judge invited JL to tender reports from Dr Ahmed: transcript, 14 January 2013 at 23.30 – 24.10. It appears JL did not place any more material from Dr Ahmed before her Honour.

11. [94]

    The Director-General submitted that otherwise, JL’s submissions filed on 2 March 2014, 18 February 2014 and 10 March 2014 were voluminous, repetitive, irrelevant to the relief sought, irrelevant to the issues before her Honour, referred to matters her Honour had no jurisdiction to determine and, again, amounted to an attempt to reargue factual allegations.

12. [95]

    Insofar as JL sought to complain in those submissions that she was “conned” by her lawyers into agreeing to the orders made by Marien P or was incompetently represented, the Director-General submitted that issue was irrelevant to the leave application the primary judge was considering, referred to a consent judgment which had not been challenged on appeal, and was inconsistent with JL’s submissions in Re Henry (which were apparently) before her Honour in which JL asserted that her consent to that order demonstrated her insight.

13. [96]

    Finally, the Director-General observed that insofar as JL sought to complain about aspects of GA’s adoption, those matters were irrelevant to the issues in these proceedings and had been the subject of determination in this Court in Re Sarah [2013] NSWCA 379.

The carers’ submissions

1. [97]

   Mr & Mrs RS, the carers of AA and AR, submitted that the grounds on which JL seeks relief do not support a case warranting prerogative relief but, rather, have the appearance of grounds of appeal. They argued that the grounds set out in JL’s summons either refer to irrelevant considerations to which the primary judge did not need to have regard, were matters which were specifically considered by her Honour or do not allege an error of law on the face of the record.

2. [98]

   Insofar as ground 2 complains that the primary judge failed to have regard to Ms Goldberg’s report of 23 February 2011, the carers submitted that was not a relevant consideration as that report referred to Henry, a child not the subject of the application before her Honour and, in any event, it did not form part of the record.

3. [99]

   Grounds 3 and 4, the carers submitted, referred to matters which were specifically considered by the primary judge (at [38] – [44]). As to grounds 5 – 7, the carers submitted they did not disclose error of law on the face of the record. They contended that a report from Ms Goldberg around the time the final care orders were made was a relevant consideration when the primary judge was considering whether there had been a significant change in the relevant circumstances and, pursuant to s 59 of the Care Act, constituted a report to the court, rather than being evidence tendered by a party. They argued that the primary judge referred to the evidence of Drs Bereny and Campbell (at [54] and [55]), that there was no error of law disclosed in her treatment of that evidence and that her Honour’s findings were open on that evidence. As to grounds 8 and 9, the carers submitted that contrary to those grounds, the primary judge referred (at [65]) to Ms Fairfax’s evidence.

4. [100]

   The carers also submitted that the primary judge considered all the applicable statutory provisions and legal principles she was obliged to, and made all necessary findings.

5. [101]

   The carers emphasised that the proceedings before the primary judge concerned only the leave requirement in s 90 of the Care Act and that, had JL demonstrated a case for the grant of leave, the matter would have been remitted to the Children’s Court for determination of JL’s application to rescind the final care orders pursuant to s 90(7).

6. [102]

   The carers also adopted the Director-General and ILR’s submissions about grounds 2 to 9.

The Independent Legal Representative’s submissions

1. [103]

   The ILR accepted that it was in the best interests of the children that their care and welfare arrangements be dealt with according to law, and that if JL or the amicus curiae established any errors of law, consideration should be given to remitting the matter to the District Court to be re-determined according to law.

2. [104]

   However the ILR submitted that the primary judgment was sound in law and that JL had not identified any basis for this Court’s intervention. She also contended that neither the applicant nor the amicus curiae had demonstrated any want of procedural fairness or bias on the part of the primary judge.

3. [105]

   Like the carers, the ILR emphasised that, as the primary judge pointed out (at [66]), the proceedings before her Honour were not a review of the original decision to place the children in foster care. Rather, the ILR submitted the relevant date for the purposes of assessing the issue of “significant change” was the date of Marien P’s order. To the extent his Honour’s reasons did not expose the basis of the consent final care orders, the ILR submitted regard could be had to the care plans s 80 of the Care Act required his Honour to consider prior to making those orders.

4. [106]

   Next, the ILR submitted that the reports of Ms Goldberg that JL contended were not afforded sufficient weight or not admitted related to Henry, who was not the subject of the proceedings before the primary judge, and further, that those reports were not admitted into evidence following argument. Further, the ILR contended that the primary judge considered the matters JL and the amicus curiae argued were not afforded sufficient weight relating to housing (primary judgment at [39]), JL’s employment arrangements (primary judgment at [40]), her social situation (primary judgment at [38] – [44]), her parenting classes and attitude to parenting (primary judgment at [51] – [65]) and her child care work and certificate in child care (primary judgment at [40]).

5. [107]

   As to grounds 5 – 7, the ILR submitted that JL and amicus curiae had not identified how the primary judge was said to have placed too much weight on Ms Goldberg’s report of 18 March 2010. Further, the ILR submitted that it was appropriate for the primary judge to take Ms Goldberg’s report into account as it could be inferred that that report passed into evidence when JL consented to the final care orders in November 2010. The ILR contended that the primary judge’s approach in this respect was consistent with Slattery J’s approach in Re Campbell.

6. [108]

   Insofar as grounds 6 and 7 were concerned, the ILR pointed out that the primary judge had been careful (at [56]) to point out that JL “did not seem to be able to address the fact that these reports were very limited in their scope and pre-dated the time at which the children were taken into care and following”, and further, that JL “did not address the obvious discrepancy between those reports and the reports of and to the Department of Family and Community Services in 2009, except to say, literally, that the latter were lies.” The ILR submitted that neither JL nor the amicus curiae had articulated why those findings of fact were not available to her Honour.

7. [109]

   Insofar as grounds 8 and 9 were concerned, the ILR submitted that neither JL nor the amicus curiae identified or expanded these grounds of relief. In particular, they had not articulated how, if the primary judge had had specific regard to such evidence, leave to apply for rescission of the final care orders would have, or at least should have, been granted.

Consideration

1. [110]

   The Supreme Court’s jurisdiction to grant prerogative relief pursuant to s 69 is preserved by s 247 of the Care Act: Re M (at [15]) per Sackville AJA (Macfarlan and Ward JJA agreeing). To obtain relief, JL must “establish an error of law on the face of the record of the court below, or jurisdictional error”: Re Felicity; (at [8]) per Basten JA (Ward and Emmett JJA agreeing).

2. [111]

   JL’s complaint, in essence, is one of jurisdictional error. She does not dispute that her Honour correctly identified the circumstances in which she had argued there had been a significant change since the final care orders warranting the grant of s 90(1) leave. Nor does she contend that the primary judge failed to have regard to the mandatory considerations in s 90(2A) of the Care Act. Rather, she contends that the primary judge was biased and/or denied her procedural fairness, ignored relevant material and failed to take relevant material into account.

3. [112]

   Care must be taken in reviewing a complaint of this nature to ensure that the Court does not impermissibly conduct a rehearing of the merits of her s 90 application. Certiorari “is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior courts thinks should have been made”: Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 (at 175); see also Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (at [31]) per (Brennan CJ, Toohey, McHugh and Gummow JJ.

4. [113]

   The principles concerning the availability of judicial review in the circumstances of JL’s s 69 application are set out in Re Henry CA. It is unnecessary to repeat or refer to them save where context demands.

5. [114]

   One matter which should be repeated having regard to the issue concerning the documents to which the Court can have regard is that where there is a complaint of jurisdictional error, the court may have regard to “any admissible evidence relevant for that purpose”: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; (2012) 83 NSWLR 302 (“Allianz Australia Insurance”) (at [15]) per Basten JA (McColl and Macfarlan JJA agreeing); see also Wende v Horwath (NSW) Pty Limited [2014] NSWCA 170; (2014) 86 NSWLR 674 (at [30] – [31]) per Basten JA; (at [125] – [126]) per Barrett JA.

6. [115]

   The distinction between error of law on the face of the record and jurisdictional error and the limitations in each context on the Court’s jurisdiction to take material before the primary judge into account make it necessary that an applicant for s 69 relief “identify with a degree of precision which grounds are said to involve jurisdictional error and which errors of law on the face of the record”: Allianz Australia Insurance (at [18] – [19]). Because JL was essentially unrepresented neither the summons nor JL’s submissions complied with this requirement. Accordingly, while the Director-General complained that aspects of her complaints could not be considered under the heading of error of law on the face of the record because, for example, a document referred to did not fall within the description of the “record” because of her complaint about jurisdictional error, the Court was able to have regard to a wider range of material.

7. [116]

   Further, insofar as the grounds for relief in the summons complain about the weight the primary judge accorded to matters of evidence, it should be remembered that the weight of the matters her Honour accorded to the evidence was, prima facie, within her jurisdiction to determine, absent any statutory indication to the contrary: see Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 (at [72]).

Section 90, Care Act

1. [117]

   Section 90 was not relevant to Re Henry CA, but was the framework to these proceedings. The legislative policy behind the requirement for leave in s 90 is to reduce uncertainty and anxiety for children in care when applicants apply for variation of Court orders, when they have little prospect of succeeding: Re Campbell (at [38]).

2. [118]

   Section 90(2) requires the Children’s Court to determine whether “there has been a significant change in any relevant circumstances since the care order was made or last varied”. The final care orders were made on 15 November 2010 and had not been varied since. As I have said, the primary judge identified that date as the starting point of her inquiry.

3. [119]

   Section 90(2A) sets out matters the court considering the leave application must take into consideration.

4. [120]

   In Re Campbell (at [41]) Slattery J observed that s 90(2) of the Care Act raises at least three legal issues: “what are ‘relevant circumstances’; what is ‘significant change’ and, when was the care order ‘made or last varied’.”

5. [121]

   “Relevant circumstances” for the purposes of s 90(2) “refers to any circumstances relevant to the safety, welfare and well-being of the child”: Re Felicity (at [25]).

6. [122]

   In Re Campbell (at [42]), Slattery J said “[t]he range of relevant circumstances will depend upon the issues presented for the Court’s decision [and] 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”. His Honour’s statement was referred to with approval by Basten JA (Ward and Emmett JJA agreeing) in Re Felicity (at [28]) where Basten JA added that “[t]o say that they are not so limited, at least implies that the relevant circumstances include [those] arising after the original orders were made”.

7. [123]

   To establish that there has been “a significant change in any relevant circumstances since the care order was made or last varied” (s 90(2)), it is not necessary that the applicant establish that “if leave be granted, the person would be entitled to the order sought”, but, rather, that there has been “a change of sufficient significance to justify the consideration of an application for rescission or variation of the care order”: S v Department of Community Services (at [23]) per Davies AJA (Heydon and Hodgson JJA agreeing). The court must compare “the situation at the time when the application was heard and the facts underlying the decision when the order was made or last varied”: S v Department of Community Services (at [27]).

8. [124]

   The matters set out in s 90(6) as relevant to the ultimate grant of an application for rescission or variation may be relevant considerations at the leave stage when the court is analysing whether the applicant has an arguable case: (s 90(2A)(e); Re Campbell at [39]. In Re Campbell (at [50]) Slattery J held, applying Dempster v National Companies and Securities Commission (1993) 9 WAR 215 (at 262) per Malcolm CJ (Walsh and Anderson JJ agreeing), that an arguable case for this purpose “is one that is not merely capable of being argued, but one that is reasonably capable of being argued in the sense that it has an argument which has some prospect of success”.

9. [125]

   An appeal lies to the District Court pursuant to s 91(1) from an order of the Children’s Court refusing an application for leave to apply for a variation or rescission of a care order: S v Department of Community Services (at [55]).

10. [126]

    As I have said, the appeal to the District Court was by way of a new hearing. As JL was the proponent of the claim for leave pursuant to s 90, she had to persuade the primary judge of the matters in s 90(2) and, further, should she have established there was a significant change as there set out, that the Court should exercise its discretion to grant her leave to apply for a rescission of the final care orders.

Papers before the primary judge

1. [127]

   The papers before the Court were in an unsatisfactory state. This may be because, according to Mr Allen, the court record says, “Exhibits returned by District Court.” The court registry sought to assist by compiling paginated folders of documents, but it was not clear whether they related to this matter or to Re Henry. A substantial part of the hearing was spent trying to identify which papers had been before the primary judge. It became apparent that to some extent, JL sought to rely upon documents which were not before her Honour. At the conclusion of the exercise of seeking to identify the documents which were before her Honour, JL sought to tender the documents to which she (and the amicus curiae) had drawn the Court’s attention for the purposes of the proceedings. The Court said it would determine the tender issue in the course of its reasons.

2. [128]

   At the outset of the proceedings before the primary judge, the Director-General tendered three volumes of material. According to the Amended Index to that Tender Bundle, they included:

   1. (1)

      Children’s Court Clinic Assessment Reports by Ms Goldberg relating to GA, GI, AR and AA dated 18 and 25 March 2010 (the reference to a report from Ms Goldberg of 25 March 2010 appears only to identify the date her 18 March 2010 report was released to the parties);

   2. (2)

      the transcript of the proceedings before Marien P and the final orders his Honour made on 15 November 2010;

   3. (3)

      the transcript of proceedings and judgment of Hogg CM of 21 August 2012;

   4. (4)

      JL’s s 90 application;

   5. (5)

      three affidavits of JL dated 31 May 2012, 25 July 2012 and 6 August 2012;

   6. (6)

      an affidavit from Ms Natalia Teulan, the caseworker with responsibility for GI, dated 20 July 2012, to which was annexed a care plan for GI dated 15 April 2010 and an addendum to that care plan dated 21 October 2010;

   7. (7)

      an affidavit from Ms Elizabeth Fairfax, the caseworker with responsibility for AA and AR, dated 23 July 2012 to which were annexed care plans for AR and AA dated 15 April 2010;

   8. (8)

      an affidavit from Mr RS dated 13 August 2012;

   9. (9)

      JL’s summons commencing the District Court appeal dated 22 August 2012; and

   10. (10)

       JL’s affidavit dated 2 November 2012.

3. [129]

   Regrettably the papers were not before the Court in the order indicated in that index. Further, the only affidavits from JL in the papers appear to be those dated 25 July 2012 and 6 August 2012. It is also not apparent whether any of Ms Goldberg’s reports other than that she prepared dated 18 March 2010 was before the primary judge. I deal with that when considering JL’s complaints about Ms Goldberg’s reports.

4. [130]

   Mr Allen informed the Court that prior to the final care orders being made, the care plans for AA and AR were slightly amended. Amended Care Plans for each child stamped as having been received at Bidura Children’s Court on 28 July 2010 were provided to this Court. It is not clear if they were before the primary judge. No party suggested anything turned on the Amended Care Plans.

5. [131]

   In addition to those documents, the amicus curiae said the documents set out in the schedule to these reasons were also before the primary judge.

6. [132]

   Among the papers was JL’s academic record from TAFE dated 16 December 2013. That was clearly not before the primary judge as it post-dated her Honour’s reasons.

7. [133]

   Further, although JL sought to tender all the material to which I have referred, her grounds for relief referred only to a few of these documents. Nevertheless her oral submissions ranged over the breadth of the materials set out above in terms of her complaint that the primary judge was biased, denied her procedural fairness and failed to have regard to and/or place sufficient weight on, the case she sought to advance. I did not understand the Director-General to object to the Court having regard to either the transcript or the materials identified in the Schedule insofar as JL complained of jurisdictional error. That apparent concession notwithstanding, the Court should, in my view, have regard only to documents which are relevant to a prima facie complaint of jurisdictional error and to which I refer specifically in these reasons.

Bias/procedural fairness

1. [134]

   As I said in Re Henry CA (at [160]), an intermediate appellate court dealing with allegations of apprehended bias, coupled with other discrete grounds of appeal, must deal with the issue of bias first.

2. [135]

   As in Re Henry CA, JL did not suggest any reason extraneous to the hearing which might have led the primary judge to decide the case other than on its merits. Save to the extent that she complained of the rejection of Ms Goldberg’s 2012 report, JL did not make any specific complaint about the conduct of the hearing. Rather, her bias complaint (which also encompassed her procedural fairness complaint), was, in truth, one about the outcome of the hearing. Those complaints are dealt with in dealing with JL’s grounds for relief and other identified issues as I explained (at [70]).

3. [136]

   For the reasons that follow, in my view it cannot be said that a fair-minded lay observer might reasonably apprehend that the primary judge had not brought an impartial and unprejudiced mind to the resolution of the question her Honour was required to decide.

Ground 1

1. [137]

   Ground 1 is JL’s complaint that the primary judge did not apply, or properly apply, the objects in s 8. JL’s submissions, insofar as they can be discerned to relate to this ground, are essentially a rhetorical complaint that the primary judge did not find in her favour.

2. [138]

   Reading her Honour’s reasons as a whole it is apparent that the primary judge took the children’s best interests and well-being into consideration in determining JL’s application. She set out s 8 of the Care Act at the outset of her reasons. Her reasons were directed to determining whether to give JL leave to apply to rescind the final care orders and have the children restored to her. It was unnecessary for the primary judge to recite the objects of the Care Act in a formulaic manner at various points in her reasons to demonstrate that it underpinned her analysis of the issues: V V (at [84]).

3. [139]

   JL has not established either ground for judicial review in this respect.

Grounds 2, 3 and 5

1. [140]

   It is convenient to deal with grounds 2, 3 and 5 concerning Ms Goldberg’s reports of 23 February 2011 and 22 August 2012 together. As is apparent from the outline of JL’s submissions, her complaints about the use or otherwise of Ms Goldberg’s reports are relied upon to support her assertions of bias and/or procedural fairness.

2. [141]

   It is unclear whether a report from Ms Goldberg dated 17 February 2011 (filed at Parramatta Children’s Court on 23 February 2011) was also before the primary judge. It was not in the Director-General’s Amended Index to the Tender Bundle, in contrast to the specific reference to Ms Goldberg’s 2010 report. It did not appear to be referred to in those affidavits of JL which were in the papers. However, Mr Allen referred to the conclusion in it during the hearing before the primary judge: 15 January 2013, transcript, p 91. He did so in the context also of reminding her Honour that the previous day she had said she would not read Ms Goldberg’s August 2012 report without the context of Lakatos DCJ’s reasons: transcript, 14 January 2013, p 22.5. Mr Allen then appeared to inform her Honour that as JL was challenging Re Henry DC, the Director-General had determined not to rely upon Ms Goldberg’s reports of 2011 and 2012. Her Honour also said (15 January 2013, transcript, p 93) that she would not read it as it related to Henry. The 23 February 2011 report also related to Henry. I would conclude, accordingly, that if it was before her Honour, that she did not take it into account for that reason.

3. [142]

   In the course of the argument in the District Court, JL asked the primary judge to “accept” Ms Goldberg’s report of August 2012: transcript, 14 January 2013, p 17. Mr Allen, counsel for the Director-General, objected that it would be misleading for her Honour to consider that report unless she also read the transcript of Ms Goldberg’s cross examination in the proceedings before Lakatos DCJ. He submitted that in that cross examination, Ms Goldberg had “changed her mind in significant ways”: transcript, 14 January 2013, p 19. Mr Renshall, counsel for the foster parents of AR and AA, supported his objection, adding that neither his clients nor the ILR had been a party to the proceedings before his Honour: transcript, 14 January 2013, p 20.

4. [143]

   JL submitted that she had appealed against Lakatos DCJ’s judgment and that her Honour ought to have regard to her contentions that his Honour’s decision was wrong, a matter her Honour said was not her function on the application she was considering: see transcript, 14 January 2013, p 19.38 – 20.5. It also appears Lakatos DCJ’s decision was not being put before her Honour: transcript, 14 January 2013, p 20.12. The primary judge said that in all those circumstances she did not “think there’s any point in me seeing Dr Goldberg’s August report”: transcript, 14 January 2013, p 22.5 (see also at p 20.15).

5. [144]

   As I have said, the question of the primary judge reading Ms Goldberg’s 2012 report was addressed later in the proceedings when the Director-General referred to an earlier report from Ms Goldberg dated 23 February 2011: transcript 15 January 2013, p 91.45. The Director-General reminded her Honour that she had said she would not read that report and that when Ms Goldberg had been cross-examined, she had made it clear she was not recommending Henry’s restoration. The primary judge expressed the view, subject to what JL wished to say, that it was not relevant as Henry was not part of the proceedings and for the contextual reasons to which the Director-General had referred: transcript, 15 January 2013, pp 91-93.

6. [145]

   In her submissions in reply, JL again asked the primary judge to have regard to Ms Goldberg’s most recent report for Henry, albeit she accepted that it had “nothing to do with the other children”. When her Honour explained that she did not propose to read either of Ms Goldberg’s reports which related to Henry for that reason, JL responded “Okay, fair enough”: transcript, 15 January 2013, p 106.

7. [146]

   The rules of evidence did not apply to the proceedings before the primary judge. Her Honour was required to conduct the proceedings “with as little formality and legal technicality and form as the circumstances of the case permit”: s 93(2).

8. [147]

   Provisions such as s 93(2) do not release the Children’s Court from the obligation to apply rules of law in arriving at its decisions: see Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 (at 29) per Gleeson CJ and Handley JA. They “are intended to be facultative, not restrictive [and] … to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals” Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 (at [49]) per Gleeson CJ and McHugh J. They “do not exonerate the court from the application of substantive rules of law and are consistent with, and indeed require the application of, the rules of procedural fairness”: Sue v Hill [1999] HCA 30; (1999) 199 CLR 462 (at [42]) per Gleeson CJ, Gummow and Hayne JJ.

9. [148]

   Nevertheless, the Children’s Court (and the primary judge to whose decision the provisions of Ch 6 of the Care Act applied: s 91(8)) were required “to draw its conclusions from material that is satisfactory, in the probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material”: Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 (at [2]) per Allsop P (as his Honour then was).

10. [149]

    The primary judge was entitled to form the view, which she clearly did, that JL’s attempt to rely on Ms Goldberg’s 2012 report, but not tender Ms Goldberg’s cross-examination before Lakatos DCJ, would not be consistent with fairness to all parties, in the sense that a misleading impression would be conveyed to the Court. Further, in circumstances where JL accepted that it did not relate to the children the subject of the s 90 application, her Honour was entitled to conclude that neither it nor the 23 February 2011 report was relevant to the application she was considering. JL has not demonstrated that, in rejecting the 2011 and 2012 Goldberg reports, the primary judge rejected relevant material in a manner that affected her Honour’s exercise of power or otherwise misapprehended her jurisdiction.

11. [150]

    JL also complains about the primary judge’s reference to Ms Goldberg’s March 2010 report contending it was out of date. Ms Goldberg’s report dealing with the children the subject of JL’s application was most proximate in time to the making of the final care orders. It was an appropriate point of reference for her Honour in determining whether there had been a significant change in any relevant circumstances since the care order was made.

12. [151]

    JL has not established either ground for judicial review in this respect.

Ground 4

1. [152]

   Ground 4 complains the primary judge failed to give sufficient weight to JL’s evidence that she was taking parenting classes, had undertaken a Certificate 3 in Childcare and was employed as a childcare worker. As the following reveals, some of these complaints misstate the evidence before her Honour.

2. [153]

   The primary judge referred (at [64]) to the fact JL said “she had undertaken a great number of parenting courses and gained a lot of insight including the importance of positive reinforcement, equal attention, and the need to respect children”. However her Honour concluded (at [65]) that “in the absence of any acknowledgement at all that there were defects in her parenting skills that led to the removal of the children in 2009 it is difficult to see how the attendance at the parenting courses represents a significant change in circumstances”.

3. [154]

   The primary judge referred (at [40]) to JL’s work history. According to her Honour at the time of the hearing, JL was not working in child care, but was undertaking a fitness instructor’s course to secure employment. This was what JL told her Honour: transcript 14 January 2013, p 26. The primary judge also referred (at [40]) to the fact that JL had “worked in child care (but has no TAFE or equivalent child care certificate)”. JL had informed her Honour that “I’ll get my Cert 3 in Children’s Services” (transcript, 14 January 2013, p 26).

4. [155]

   The primary judge clearly took these matters into account in considering JL’s claimed change of circumstance that she had “gained skills in order to obtain gainful employment”: primary judgment (at [41]). Her Honour then considered the fact that JL had not given any evidence about her present financial circumstances such as could demonstrate that she was able to plan her financial affairs in such a manner as to be able to support the children if they were returned to her care in reaching her conclusion that JL had not demonstrated a significant change of circumstances in these respects.

5. [156]

   As is apparent from the foregoing, there was no evidence before the primary judge that at the time of the hearing JL had completed a Certificate 3 in Childcare or that she was employed as a childcare worker. As to the other matters, it was a matter for her Honour to determine the weight to be placed upon each. She did consider them in exercising her jurisdiction to determine whether to grant JL s 90 leave.

6. [157]

   JL has not established either ground for judicial review in respect of the matters raised in Ground 4.

Grounds 6 and 7

1. [158]

   The primary judge referred to both Dr Campbell’s and Dr Bereny’s reports in analysing JL’s evidence concerning her ability to undertake appropriate parental duties.

2. [159]

   Her Honour quoted Dr Campbell’s report (at [54]). It referred to Dr Campbell’s observations of JL’s interaction with her children at birth and in the first six weeks of their lives. He deliberately limited his observations to that period.

3. [160]

   Her Honour quoted Dr Bereny’s report (at [55]). His opinion was expressed as to his observations of JL with her children between “late 2006 and late 2008”.

4. [161]

   Her Honour then assessed both JL’s perception of the utility of both doctors’ reports and its objective relevance to the issue. This was an appropriate exercise within her Honour’s jurisdiction in determining the application.

5. [162]

   JL has not established either ground for judicial review in respect of the matters raised in grounds 6 and 7.

Grounds 8 and 9

1. [163]

   Although the primary judge did not ascribe a source to this observation, she referred (at [65]) to the fact that “[t]he evidence from the Department and the caseworkers is positive about [JL’s] behaviour and involvement at contact visits”. She took that evidence into consideration in assessing JL’s contention about the significance of the parenting classes JL said she had undertaken and whether there had been a significant change in circumstances. This was an appropriate exercise within her Honour’s jurisdiction in determining the application.

2. [164]

   JL has not established either ground for judicial review in respect of the matters raised in grounds 8 and 9.

Other matters

1. [165]

   In this section I consider matters not expressly identified in JL’s grounds for relief or subsumed under her bias complaint.

Dr Ahmed

1. [166]

   JL’s complaint about denial of procedural fairness in relation to Dr Ahmed is that the primary judge did not give her the opportunity to call Dr Ahmed in the circumstances where her Honour permitted the Director-General to issue a late subpoena to him.

2. [167]

   As failure to afford procedural fairness constitutes jurisdictional error (Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 (at [26] – [42]) per Gaudron and Gummow JJ (Gleeson CJ agreeing (at [5])); (at [170]) per Hayne J), the Court may have regard to “any admissible evidence relevant for that purpose”: Allianz Australia Insurance (at [15]).

3. [168]

   Thus the Court can have regard to the transcript of the proceedings before the primary judge and, too, to the documents to which I refer below.

4. [169]

   It is apparent from the transcript that the matter had been the subject of a directions hearing to ensure it was ready for hearing. At the last mention before the primary judge, it appears JL sought to lodge a report from Dr Ahmed and was given leave to do so. That had not been done at the time the hearing commenced: transcript, 15 January 2013, p 88.25.

5. [170]

   On the first day of the hearing in giving the primary judge an outline of the proceedings, Mr Allen referred to JL’s contention in her s 90 application that she had seen Dr Ahmed every fortnight (see [24] above). He submitted there was no report of any substance from Dr Ahmed, only a short letter dated 29 May 2012 saying:

6. [171]

   Mr Allen then tendered email correspondence (exhibits A and B) which he contended indicated Dr Ahmed was not prepared to provide a further report: transcript 14 January 2013, p 9. Those exhibits do not appear to be in the material provided to the Court, however Mr Allen read them into the transcript in his final submissions.

7. [172]

   Exhibit A was an email from JL to Dr Ahmed dated 14 September 2012 in which JL informed him she felt it:

8. [173]

   Exhibit B was an email from JL to Dr Ahmed dated 17 September 2012 and one from him to JL dated 18 September 2012. JL’s email informed Dr Ahmed that he needed to be available to give evidence and that a report should be provided. Dr Ahmed responded:

9. [174]

   In the course of her opening, JL submitted that Dr Ahmed favoured the return of her children and referred to a report in which she contended he said “why don’t you increase the visits”. She also contended he had been prepared to come to court to give evidence on an occasion when hearing had been “cancelled” due to a party’s unavailability. She then sought to refer to “another report” (presumably from Dr Ahmed) which she said she could produce. The primary judge told her that if she had any reports from Dr Ahmed they ought to be in the tender bundle, but if they were not, she should tender them at that stage. JL responded that she “would go on the internet and have it by this afternoon.” Her Honour asked her to show it to the other people at the bar table when she had it. JL responded that she would do so (transcript, 14 January 2013, at pp 23 – 24).

10. [175]

    The parties then tendered their documentary evidence which the primary judge read over the luncheon adjournment. Following that break, her Honour invited the parties to say whether they were going to make submissions or call witnesses. JL responded that she “wasn’t aware that I could have a witness at this point of time.” She asked whether there “was a chance that I could have an extension to maybe wait for [RS] to come back if he wants to be joined at and also … ask witnesses, like my brothers, or Dr [Ahmed] when he gets back from his holiday”. The primary judge rejected that application pointing out that the matter had been specially fixed for hearing at JL’s convenience and if she had needed material from Dr Ahmed she should have arranged that the previous year when her Honour had made directions for the filing and serving of evidence.

11. [176]

    At that stage Mr Allen sought leave to issue a subpoena to Dr Ahmed to produce his file notes in relation to counselling JL. He informed her Honour he understood Dr Ahmed could produce that material the following morning. He explained that the matter had not been attended to earlier as Dr Ahmed had been away until that day. The primary judge asked whether anybody objected to her granting that leave. JL did not object.

12. [177]

    JL then submitted that if Dr Ahmed was going to be responding to the subpoena could he “come in as well … or over the phone or something.” The primary judge told JL she “would have to talk to [Dr Ahmed] about that” although she observed that she “wouldn’t have thought that at such short notice he would be able to [whereas] it’s another matter for him to get his receptionist or someone to fax a file” (transcript, 14 January 2013, pp 30 – 32).

13. [178]

    It is not apparent from this recital of the proceedings before the primary judge that JL was denied procedural fairness in respect to calling Dr Ahmed.

14. [179]

    While the primary judge initially rejected JL’s application for an “extension” to ask Dr Ahmed to give evidence because JL had failed to arrange for him to be available at the hearing, she subsequently said JL could talk to Dr Ahmed to see (as I read the transcript) if he could give evidence during the time fixed for hearing. JL did not call him.

15. [180]

    Further, JL was given 2 opportunities to tender reports from Dr Ahmed. The first was in the course of directions hearings preparing the matter for hearing when a timetable was set for the preparation of material to go into a tender bundle. JL failed to comply with the timetable and did not obtain a report from him prior to the commencement of the hearing on 14 January 2013. Her Honour pointed out when JL started to refer to Dr Ahmed that if she had reports from him, they ought to be in the tender bundle. JL said she would “have it by this afternoon”. No such report was produced in the two days allocated for the hearing.

16. [181]

    While the duty to ensure that a trial is fair “requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented” (Hamod v New South Wales [2011] NSWCA 375 (at [309]) per Beazley JA (as her Honour then was; Giles and Whealy JJA agreeing)), it does not require the court to permit a self-represented litigant to ignore arrangements the court has put in place to ensure a case can be managed properly. JL’s first application was for an adjournment to enable her to call Dr Ahmed. That was properly rejected because it imperilled the court’s ability to hear the case in the time allocated. However JL was given the opportunity to call Dr Ahmed during that period if that could be arranged.

17. [182]

    Thus JL was given the opportunity both to call Dr Ahmed and tender reports from him during the hearing. She was not denied procedural fairness.

18. [183]

    JL has not established jurisdictional error in this respect.

Application of s 90(6)(b)

1. [184]

   JL complained the primary judge failed to take into consideration AR’s wishes that he and AA be placed back in her care: s 90(6)(b).

2. [185]

   As the Director-General submitted, the matters referred to in s 90(6) were not a mandatory consideration in her Honour’s consideration of JL’s application. This follows from Re Campbell (see [124] above). The matters in s 90(2A) were mandatory considerations and each was a matter to which her Honour had regard. The question whether in doing so her Honour referred to matters in s 90(6) was a matter for her. Having regard to her conclusion that JL had not established a significant change in any relevant circumstances, it was open to her Honour to conclude that JL’s assertion as to AR’s wishes was not relevant to the issue whether s 90 leave should be granted.

3. [186]

   JL has not established either ground for judicial review in respect of this matter.

Convention on the Rights of the Child

1. [187]

   The principles concerning the application of the CROC are discussed in Re Henry CA. In short, in Re Tracey (at [26], [45]) Spigelman CJ (Beazley JA agreeing) said the CROC may be relevant to the exercise of the discretion pursuant to s 90(7) to vary or rescind an order for the care and protection of a child if the Court “is satisfied … that it is appropriate” to make such an order, or to the “adequacy” issue referred to in s 90(6)(e). However, while those provisions may be a relevant consideration in the exercise of statutory discretions, they “do not thereby become mandatory”: Le v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 875 (at [59]) per French J; Re Tracey (at [30] – [31]).

2. [188]

   It might be accepted that if the CROC may be relevant to the ultimate exercise of the discretion under s 90 to rescind or vary a care order, it may also be relevant to the exercise of the discretion whether to grant leave to make an application for that ultimate relief. However, no party submitted to the primary judge that she should consider the CROC in exercising that discretion. An inferior court does not commit an error of law or fall into jurisdictional error where it does not consider a point not raised before it, at least where it does not lead to the court falling within one of the three categories of Craig error referred to in Kirk v Industrial Court of New South Wales (at [72]); see also Boele v Rinbac Pty Ltd [2014] NSWCA 451 (at [14]) per Basten JA (at [90], [100]) per Sackville AJA.

3. [189]

   The primary judge’s failure to refer to the CROC cannot be said to fall into that category.

Orders

1. [190]

   The Director-General does not seek a costs order against JL.

2. [191]

   I would dismiss the summons.

   1. (1)

      A statutory declaration from JL’s brother, the date of which cannot be discerned from the copy in the papers; Court book 264

   2. (2)

      A letter from Dr Campbell dated 26 April 2007; 265

   3. (3)

      A letter from Dr Campbell dated 27 July 2012; 267

   4. (4)

      A note from Dr Bereny dated 29 April 2011; 268

   5. (5)

      A note from Dr Ahmed dated 29 May 2012; 269

   6. (6)

      A TAFE receipt dated January 2013 apparently recording JL’s enrolment in a course concerning “Children’s Services”; 270

   7. (7)

      Documents from the headmistress of JL’s school dated 8 October 1986 and 19 April 1989; 272-273

   8. (8)

      A statutory declaration of VB, declared 17 August 2011; 273

   9. (9)

      A reference for JL from VB dated 8 May 2009; 274

   10. (10)

       A “Triple P certificate” in Positive Parenting dated 4 June 2009; 276

   11. (11)

       An affidavit of JL’s brother dated 3 May 2012; 277

   12. (12)

       A statutory declaration of VB declared 17 August 2011; 289

   13. (13)

       A letter from the Police Integrity Commission dated 11 August 2011; 290

   14. (14)

       A report from the Sydney Developmental Clinic of 21 July 2011; 292 to 294

   15. (15)

       A statutory declaration of JL dated 23 February 2012; 295

   16. (16)

       An affidavit sworn by Ms Nicole Kaplan dated 12 October 2009; 298 to 300

   17. (17)

       Part of an affidavit sworn by Ms Shapiro (the date of which does not appear in the papers), documents which appear to be Ms Shapiro’s case notes; 301-308

   18. (18)

       A report of Dr S Allnutt dated 19 March 2011; 309- 314

   19. (19)

       A report from Eastern Sydney Scarba Service dated February 2010; 315- 317

   20. (20)

       A statutory declaration from JL’s brother apparently annexed to JL’s 6 August 2012 affidavit; 318

   21. (21)

       A document which appears to be an exchange of communications between a psychologist, Ms Kaplan and Ms Sarah Morris a caseworker between 14 September 2009 and 2 October 2009; 319 to 324

   22. (22)

       Reports from Dr George Jacobs dated 25 April 2009 and 13 June 2009; 325 to 328

   23. (23)

       Certificates from South Head Medical, Dr Mordecai, dated 25 June 2009 and 13 July 2009; 329

   24. (24)

       Reports of Wilfred Lax, clinical psychologist, dated 30 March 2009 and 1 July 2009; 331 to 333

   25. (25)

       Report of Dr Roberts dated 30 June 2009; 334

   26. (26)

       Report of Dr Reid dated 24 September 2009; 335 to 351

   27. (27)

       Report of Dr Allnutt dated 14 November 2010; 352 to 361

   28. (28)

       Certificate from Dr Mark Grunwald dated 15 March 2010; 362

   29. (29)

       JL’s handwritten notes; 362 to 364

   30. (30)

       Letter to JL’s former general practitioner; 365

   31. (31)

       An email from JL to a Mr Ric Gonzalez dated 1 August 2010; 385

   32. (32)

       A document in JL’s handwriting. 386

Schedule of documents

1. [192]

   BASTEN JA: On 15 November 2010 the Children’s Court, sitting at Parramatta, made final orders allocating parental responsibility with respect to three children of the applicant, known as GI, AR and AA. Parental responsibility was vested in the Minister, pursuant to s 79(1)(b) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Children Act”), as then in force.

2. [193]

   Pursuant to the somewhat awkward language of s 81 of the Children Act, if the Children’s Court made an order placing a child under the parental responsibility of the Minister it had also to determine which aspects of parental responsibility were to be “the sole responsibility of persons other than the Minister”. [1] With respect to AR and AA, all aspects of parental responsibility (excluding contact, which was to be shared with the Minister) were allocated to identified carers, with whom the children were already living.

3. [194]

   With respect to the third child, GI, orders were made placing her under the parental responsibility of the Minister until she attains the age of 18 years, all aspects of parental responsibility being vested in the Minister. [2] The Court noted that GI would remain in a long-term placement with identified carers.

4. [195]

   The applicant did not appeal from that decision, perhaps because, as noted by Judge Marien before whom the proceedings had been conducted, the applicant had conceded that there was no realistic possibility at that stage of restoration of the children to the mother. However, on 31 May 2012 the applicant sought orders in the Children’s Court rescinding or varying the care orders made by Marien DCJ in the Children’s Court on 15 November 2010. Such an application requires leave. [3] An application for leave is to be dealt with on the following basis:

5. [196]

   The application was heard by Children’s Magistrate Hogg who, on 21 August 2012, refused leave and dismissed the application.

6. [197]

   From that decision, the applicant appealed to the District Court pursuant to s 91 of the Children Act. The appeal is to be way of a “new hearing” and fresh evidence and additional evidence may be given on the appeal. [4] The appeal was heard by Judge Olsson SC, who, exercising the powers vested in the Children’s Court, refused leave and dismissed the appeal.

7. [198]

   On 27 February 2013 the applicant filed a notice of appeal in this Court, seeking to set aside the judgment of the District Court. As explained in the accompanying matter of Re Henry, [5] there is no right of appeal to this Court from a decision of the District Court given on an appeal from another court or tribunal. The only right of review is in the supervisory jurisdiction of the Court, pursuant to s 69 of the Supreme Court Act 1970 (NSW). The appeal should be dismissed as incompetent. In due course (although not until 10 March 2014) the applicant filed a summons in this Court seeking judicial review of the decision of the District Court. The delay in commencing the appropriate proceeding was unfortunate, as has been the further delay in disposing of the summons.

8. [199]

   The grounds of relief identified in the summons were prepared by counsel acting as amicus curiae, based on an affidavit prepared by the applicant and filed on 28 February 2013 in the aborted appeal proceedings. The grounds may well reflect in more coherent terms the matters raised in the affidavit, but they did not conform to the conventional grounds available for judicial review. These required identification of either jurisdictional error on the part of the District Court or an error of law on the face of the Court’s record. Ground 1 alleged a failure to apply the principles set out in s 8 of the Children Act, although that section merely stated objects. The other grounds alleged failure to give sufficient weight to particular matters, placing too much weight on other matters and failing to have regard to parts of the evidence. These did not in their terms identify reviewable legal errors, although the applicant’s written submissions made complaints of bias and denial of procedural fairness. Further, a document filed on 10 March 2014, entitled “Add on submissions”, referred without elucidation to a failure of the primary judge to consider the UN Convention on the Rights of the Child [6] (“the Convention”)

9. [200]

   Olsson DCJ rejected the appeal because she found that there had been “no significant change in relevant circumstances since the date on which the care orders were made.” While the separate parts of s 90 might have been better drafted, the apparent effect of s 90(2) is that the power to grant leave is only triggered where the Children’s Court is satisfied that a significant change in circumstances has occurred. That is a matter as to which the applicant bears the onus of proof. Any question of construction of the provision would involve a question of law, but otherwise the required satisfaction is a matter of fact. For reasons explained in Re Henry, unless the facts favourable to the applicant’s case were accepted by the trial judge and, on the basis of accepted facts (including those adverse to the applicant) there was only one conclusion reasonably open, no question of law arises. [7] For reasons which will be explained, the applicant was unable to establish the basic premises upon which error of law can be identified in a failure to make findings based on the evidence, being the primary basis on which the matter was approached.

10. [201]

    Whilst considering the structure of s 90, two aspects of subs (2A) should be noted. First, it identifies certain matters which are mandatory considerations, to be considered before the court may grant leave to vary or rescind a care order. The factors are not narrowly limited, nor are they all of one kind. Thus, paragraph (a) requires the court to focus not on some general or more abstract consideration of the best interests of the child, but on the nature of the application being made in the particular case. As indicated by par (e), the purpose of examining the application is to identify whether the applicant has an arguable case. Otherwise, the matters identified as mandatory considerations have their own specific points of reference.

11. [202]

    Secondly, the limited focus of a leave application may be inferred from the relatively limited range of mandatory considerations set out in subss (2A), as compared with those identified in subss (6) which are to be addressed once leave has been obtained and before making an order varying or rescinding an existing care order.

12. [203]

    The statutory structure was referred to by the primary judge. She also made specific findings with respect to each factor set out in s 90(2A). [8]

13. [204]

    The primary judge, having set out the procedural background and the relevant legal principles, summarised the applicant’s case under the following headings:

14. [205]

    In her conclusions, the primary judge noted two problems which had afflicted the case presented by the applicant generally. The first concerned the manner in which the application was presented. The primary judge stated: [9]

15. [206]

    The second point appeared to flow from the first. The primary judge continued, saying that, while her failure to focus on the test in s 90(2) was not necessarily inconsistent with her proffering “cogent evidence as to change in circumstances”, nevertheless, “the real difficulty confronting Ms L was that she clearly and frequently demonstrated – in her words and in her use of documents – that she did not believe that there had been anything wrong with her parenting skills or the development of the children that would have warranted the involvement of the Department in the first place, and that consequently there was no reason to change anything.”

Case on review

1. [207]

   The applicant’s summary of argument in this Court sought to identify grounds which properly fell within the scope of the supervisory jurisdiction. She claimed that Olsson DCJ had exhibited “bias” in favour of the Department and that she had been denied procedural fairness. The bases for these complaints were, in large part, acceptance of “negative” material and failure to give weight to the “positive” changes. However, the weighing of the evidence was the function of the primary judge and cannot be reviewed by this Court. It is appropriate, nevertheless, to identify the primary points relied upon by the applicant, in order to explain why they cannot justify intervention by this Court.

(a) failure to consider relevant material

1. [208]

   The first complaint set out in the written submissions was a failure by the primary judge to have regard to the request of one of the boys that he and his brother be placed back in the sole care of the applicant until age 18. The applicant referred to s 90(6)(b) as demonstrating error in this approach. However, as noted above, subs (6) sets out mandatory considerations in considering an order, and is not engaged until there has been a grant of leave to make the application for such an order.

2. [209]

   In January 2013, at the time of the hearing in the District Court, the boys were aged seven and a half and five years respectively. Counsel for the Secretary noted that the only evidence of the boy’s wishes was to be found in an affidavit filed by the applicant. (The applicant did not suggest otherwise.) Exploration of those wishes might well have been an issue in deciding whether to vary or rescind the existing care orders, but it was not, and did not need to be, explored on an application for leave.

3. [210]

   A contrary argument was presented by counsel appearing as amicus curiae, in the interests of the applicant. She submitted that, because in considering whether to grant leave, the Court must consider whether the applicant has an arguable case, it became necessary to consider all of the matters identified in subs (6), which were thus imported into the requirements in subs (2A). That submission should be treated with some caution. The applicant was not required to put forward the full case she wished to run if leave were granted; indeed, such a requirement would significantly undermine the purpose of the separate obligation to obtain leave, the purpose being to protect the stability of care arrangements established under “final” orders of the Children’s Court. The extent to which demonstration of an arguable case is a prerequisite to a grant of leave will depend upon the circumstances. The primary judge addressed sufficient evidence to be able to conclude that an arguable case had not been made out. [10] No legal error was identified in a failure by the primary judge to take the evidence into account.

4. [211]

   A second matter raised by the applicant was the failure on the part of the primary judge to take into account a draft care plan for the restoration of one of her children.

5. [212]

   The matter which the judge was required to take into account under s 90(2A), included “a report under section 82”, dealing with the suitability of arrangements made for the care and protection of a child. The primary judge did in fact have regard to reports with respect to the present arrangements regarding the children the subject of the proceedings before her, noting that both the boys and, separately, the girl were progressing well. The child in relation to whom the submission was directed was the youngest child, Henry, who was not the subject of the present proceedings. There was no error on the part of the primary judge in not having regard to the possibility that Henry might be returned to her care at some time in the future. Dr Goldberg, the Court clinician responsible for the reports concerning Henry prepared in 2011 and 2012, also prepared reports with respect to the other children, which were referred to by the primary judge under the heading “Mental and emotional situation”. [11]

6. [213]

   Thirdly, the applicant complained that inadequate consideration had been given to her “engagement in therapy as recommended by court clinician Greta Goldberg”. It was said to be an example of bias shown by the primary judge that “little weight” was given to the applicant’s “achievements and parenting courses.” However, this was a matter to which the primary judge gave explicit attention stating:

7. [214]

   Under the heading “Ability to undertake appropriate parental duties”, the judge stated: [12]

8. [215]

   Under the heading “Education and health”, the primary judge made the following observations: [13]

9. [216]

   The primary judge took these factors into account, but was not persuaded that attendance at parenting courses represented a significant change in circumstances particularly where there was “no evidence about the content of the courses nor, – critically – her level of participation and engagement.” [14]

10. [217]

    It cannot be said that the primary judge did not take into account the material put forward by the applicant in this regard. It is true, however, that she gave it little weight and was not satisfied that it demonstrated a significant change in circumstances. That finding was undoubtedly open to the judge and no error of law is demonstrated in the making of that finding.

(b) procedural unfairness

1. [218]

   In addition to reliance upon the manner in which the primary judge dealt with matters of evidence in her reasons, the applicant identified two other steps which were said to have constituted a denial of procedural fairness. The first concerned the remark of the trial judge that the applicant did not arrange for her treating therapist, Dr Ahmed, to attend to give evidence. [15] In a document attached to an affidavit in this Court, [16] the applicant noted that she requested an opportunity to call Dr Ahmed on the first day of the hearing. She continued:

2. [219]

   The transcript reveals that the hearing commenced with a brief outline of the application by Mr Allen, appearing for the Secretary, together with the tender of documents. The applicant then outlined her case, the primary judge retiring to read the material over lunchtime. When the hearing resumed Mr Allen said he was not calling any witnesses. The following exchange took place: [17]

3. [220]

   The following morning, counsel noted that clinical file notes had been obtained from Dr Ahmed but no medical reports. [18] The applicant said that the material was incomplete, because it did not included medical reports; when asked whether she objected to the judge seeing the documents that had been produced she replied, “No, of course not.” [19]

4. [221]

   There is nothing in these exchanges to demonstrate procedural unfairness. The only disadvantage suffered by the applicant was that, having failed to make arrangements for Dr Ahmed to be at Court to give evidence, she was not granted an adjournment. There was no explanation as to when she decided she wanted him to give oral evidence, nor as to why she had not made arrangements for him to attend court. In these circumstances the failure to adjourn the leave application did not constitute procedural unfairness. Whether the applicant herself had requested that Dr Ahmed produce material to the Court was somewhat unclear, but may be addressed in considering the second allegation of procedural unfairness.

5. [222]

   The second matter involved a somewhat imprecise and unsubstantiated complaint that she had been refused leave to issue certain subpoenas and that “the subpoenas I requested were not returned.”

6. [223]

   The complaint with respect to the refusal of leave to issue subpoenas, which apparently occurred at a directions hearing before another judge, is far too vague and unsupported to allow any inference as to unfairness. The first subpoena which she asserted “never came back” related to her “gas bill to prove my huge leak … I was unable to prove malice”. Material along these lines would not have been significant (nor perhaps relevant) to the leave application.

7. [224]

   There was a further exchange at the very beginning of the second day when the primary judge (by no means for the first time) suggested that the applicant should focus on whether there had been a significant change in circumstances. [20] The applicant responded:

8. [225]

   There was then some confusion as to whether the subpoenaed documents were in court or were available in the District Court registry. [21] In the event, the contents of a box of documents which had been in Court were identified as Court files and not subpoenaed documents. Some documents were apparently obtained and counsel for the Secretary proceeded to identify a number of items which he said the applicant wished to tender. Those documents were ultimately admitted as Exhibit 3.

9. [226]

   Following discussion as to the unavailability of reports from Dr Ahmed (referred to above), counsel for the Secretary and counsel for the carers of the two boys addressed the Court, as did the independent legal representative of the children. The applicant addressed in reply. Although there was passing reference to the absence of material from Dr Ahmed in the applicant’s final submissions, [22] there was no further complaint about unavailable documents.

10. [227]

    The applicant did not produce in this Court the subpoenas which had not been issued, or were not the subject of returns, nor did she produce any reports from Dr Ahmed to show possible prejudice. Nothing was placed before this Court to demonstrate a denial of procedural fairness in the District Court.

(c) disregarding the Convention

1. [228]

   Finally, reference should be made to the complaint that the primary judge failed to have regard to the Convention. As explained in Re Henry, [23] the terms of the Convention are not mandatory considerations, disregard of which would demonstrate legal error. In circumstances where the applicant did not place any reliance before the primary judge on any aspect of the Convention (nor did any other party), there can be no error on the part of the judge in not referring to it.

Conclusion

1. [229]

   There is no suggestion that the primary judge applied the wrong legal principles, nor that she failed to have regard to some matter to which she was required to give consideration.

2. [230]

   A reading of the judgment as a whole provides no basis for identifying a reasonable apprehension of bias. True it is that the judge declined to make findings favourable to the applicant in a number of respects, but there is no indication of pre-judgment, or any other form of bias, and the findings are merely the legitimate exercise of the judicial function.

3. [231]

   Finally, there is no demonstration of procedural unfairness. The Court was not taken in the course of oral submissions to any passage in the transcript of the hearing in the District Court on 14 January 2013 which indicated unfairness.

4. [232]

   The summons to review the decision of the District Court should be dismissed.

5. [233]

   MEAGHER JA: I agree with Basten JA.