Re M (No 6)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I will explain each of these arguments in turn.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The evidence put forward by BM concerning her access with RM and HM was limited. I understand that BM believes that the weekly Skype and telephone communication does not always occur, or occur in a convenient way. Her principal difficulty is in taking advantage of arrangements for face-to-face contact with RM and HM. She complains that MB will not bring the children to Wagga Wagga, or meet here halfway. BM therefore has to incur the cost of travelling to Adelaide, which she cannot always afford. If she travels to Adelaide by public transport, she then has to incur the cost of travel between the place where she stays and MB’s house in order to see the children, which she also cannot afford. She complains that MB has declined to assist her by using his car to transport her between the place where she has to stay and his home. Much of BM’s complaint concerned arrangements made between MB and MS for combining MS’ arrangements to take ZM to Adelaide to see his brother and sister, and BM going with them in order to see her children as well, without having to incur the separate cost of travelling to Adelaide. Friction between BM and MS has limited the possibility of BM travelling with MS to Adelaide together to see RM and HM. The evidence was not detailed, but apparently MS does take ZM to see his brother and sister from time to time. MB did not give evidence, so he has not thrown any light on the contact arrangements between BM, RM and HM.

The situation is different concerning the access that BM has enjoyed with ZM, largely because BM lives in Wagga Wagga and ZM lives with MS in Junee, so that there is little physical difficulty in access taking place. The factual position concerning BM’s access to ZM is not entirely clear, as although both BM and ZM gave evidence, BM prepared her own affidavits, which were not always clear on this issue, and although MS gave evidence by way of affidavits, MS was not cross-examined.

MS readily acknowledged that he had given BM greater access to ZM than was required by order 3 of the care orders. He said that he did so because he thought it was in ZM’s interests, and in particular, he had reflected on the need for a child to have a relationship with its mother following his own mother’s death.

There was a substantial difference between the evidence given by both BM and MS concerning the nature and frequency of BM’s contact with ZM.

BM’s evidence painted a picture of MS allowing BM regular and frequent contact with ZM, which included on many occasions all day contact extending to BM being present when ZM was kissed and put to bed. BM went further to claim that she had re-established her relationship with MS, albeit of an erratic nature, and on one occasion described herself as MS’ girlfriend. BM gave evidence of relatively regular arrangements when she would go to the swimming pool with MS and ZM, and travel with MS to take ZM to his preschool, and to pick ZM up afterwards.

BM said that, notwithstanding the fact that MS had encouraged much more substantial contact between BM and ZM than was required by the care orders, MS was erratic, and would regularly get angry with BM and arbitrarily terminate the informal arrangements that had been made.

BM’s principal complaint was that it was not in ZM’s best interests to have contact with his mother on an erratic and arbitrary basis so that there would be periods of regular contact followed by unexpected breaks.

MS’ evidence painted a significantly different picture than the evidence given by BM. He denied that he had re-established a relationship with BM, although he frankly acknowledged two occasions when sexual encounters had occurred.

As has been set out above, the effect of the care orders made by Olsson DCJ was that BM was to have supervised contact with ZM a minimum of six times a year, at times and locations determined by MS after consultation with BM.

MS gave evidence that, a couple of months after the care orders were made, he slowly began to increase the contact time between BM and ZM. ZM seemed to enjoy spending more time with his mother, and MS and BM were getting along. In by mid-2013, ZM was seeing BM about once a week, usually at a local park or the local swimming pool for a couple of hours, supervised by MS. BM asked to have more access to ZM and BM began to see ZM at MS’ house 2 to 3 times a week. She would come around for a couple of hours and she and ZM would play in the living room or watch a movie. MS would always be around and at least within earshot. By the end of 2013, MS had become frustrated with BM visiting his house unannounced demanding to see ZM. This led to arguments and MS would ask BM to leave. MS said that BM would say things to him like: “[ZM] would be better in foster care rather than being with you”, and “I’m going to tell DOCS you’ve been breaching the orders”. MS formed the view that BM was becoming difficult to manage, and arguments would occur in front of ZM. On 1 August 2014, after BM had arrived at MS’ house unannounced, and began calling out to ZM in the front yard: “mummy loves you, tell daddy to let me see you”, MS asked BM to leave. Later that day the Police arrived at MS’ house to do a welfare check on ZM. (I will discuss the evidence of the reports made by the New South Wales Police below).

BM and MS attended mediation at the Family Relationship Centre at Wagga Wagga on 12 August 2014. The parties agreed to remain readily contactable by each other, and made the following arrangement concerning BM’s access to ZM:

This arrangement operated for a couple of months; however, BM continued to visit MS’ house on other days. BM complained that Sunday did not suit her, and MS made arrangements to change the visiting day to Saturday.

MS said that communication between MS and BM completely broke down in November 2014, and he told BM that if she did not start behaving herself, MS was strongly considering going back to six times a year, and that BM could not see ZM at MS’ house any more.

MS’s mother died on 15 December 2014, and he decided to give BM another chance to see ZM a couple of times a week. By mid-January 2015, BM began to visit MS’ house 3 to 4 times a week. Arguments would occur if MS told BM that it was not convenient for her to have time with ZM.

It is sufficient to say that the substance of MS’ evidence was that he found it necessary from time to time to deny BM the additional access to ZM that he would otherwise have freely given to her because BM would simply not adhere to agreements made, and would regularly try to insist upon additional access by turning up at MS’ home to demand access, and that there were often unpleasant exchanges when BM did not get what she wanted.

MS therefore agreed that the access arrangements for BM in respect of ZM had become erratic and haphazard, but he said that was not because he had not tried to provide regular and more frequent opportunities for BM to have time with ZM, but because of BM’s own conduct in not keeping to arrangements and demanding more than had been agreed to had become so frequent, that MS believed he had been harassed to the extent that he had explored whether further mediation could occur (and was informed by the Family Relationship Centre that it would not provide its services because BM could not be relied upon to comply with any agreement); and had actually enquired of the Police as to whether he could obtain an AVO against BM (but was informed that it was unlikely that the grounds existed for him, a male, to be granted such an order against BM).

BM also complained that there had been no sibling access for years between BM and JM and their two younger brothers and sister, and that there was insufficient access between RM and HM on the one hand and ZM on the other. BM gave evidence that, particularly the older two children had regularly said to her during contact occasions that they missed having more time with their mother and ZM.

I have summarised the reasons that Olsson DCJ gave for making the present care orders above. Her Honour formed the view based upon the evidence in a nine day hearing that BM had lived a completely peripatetic existence, without regard to the interests of the children; was an extreme disciplinarian; was delinquent in the care that she gave them; and that she tried to erase their fathers from their lives. The strength of the opinion reached by her Honour is reflected in the provisions included in the care orders designed to ensure that BM never had unsupervised contact with any of the children.

It is BM’s case that a number of changes have occurred, which constitute significant changes in a number of the circumstances upon which Olsson DCJ based the existing care orders.

BM said that she now has insight into the fact that moving around too much was not healthy for her children (par 29) and that she had been too hard a disciplinarian (pars 198, 247 and 304). She said that she did not appreciate that it was inappropriate for her to discipline her own children in the way that she had been disciplined as a child. She said (at par 304):

BM said that she now has stability of residence (pars 179, 189, 242 and 243). She lives in a four-bedroom home where she has lived for almost 5 years. She said that the lease is being extended another two years. BM put into evidence a letter to her dated 9 August 2015 from Family & Community Services which offered to extend her lease at 49 Chifley Crescent, Wagga Wagga for a further two years.

There is force in BM’s claim that she has achieved a much greater stability of residence than was the case in the period considered by Olsson DCJ up to the date the care orders were made. That may in part be because of a desire to be near to ZM so that she can have access to him, but the fact remains she has achieved stability of residence for a considerable period.

As appears from the extract from her submissions set out above, BM claims that the Department has refused to work with her. The Department’s Ms Gestier gave the following evidence in her 9 April 2015 affidavit:

BM referred in her submissions to a considerable number of steps that she had taken to try to improve her parenting capacity (pars 128, 129, 138, 150, 155, 157 (concerning management of children’s behaviour), 158 to 165, 172, 173 (nutrition), 204 to 206, 213, 214, 218, 236, 243 to 247, and 256 to 297). BM went to some lengths to set out what she had actually done, and to describe the process that she had gone through. This extended to including a quantity of notes of what she had learned in the various sessions she had attended. These included what she described (par 266) as her “grief butterfly” and her (par 268) “anger volcano”. The former disclosed candidly the matters in her life concerning her travails that had caused her grief, and the latter involved an acknowledgement of all of the matters concerning her life since her children were taken from her that had made her angry.

BM’s evidence included the following letter dated 2 June 2014 by a caseworker or community educator at Centacare:

As a further specific example, on 31 March 2015 the centre manager for Junee Community Centre wrote the following letter “To Whom It Made Concern”:

It is not possible on an application such as the present, and the evidence that is before the court, to evaluate the significance of this evidence with confidence. However, it is clear that BM has over a significant period made serious attempts to gain insight into the shortcomings of her former treatment of her children, and to try to improve her parenting skills. It is not practicable to set out the evidence in detail, but if one reads all of BM’s notes carefully, they do seem to reflect, at least in literal terms, a struggle on BM’s part to remedy the deficiencies that led to the making of the care orders; and that she has acknowledged in principle the steps that should be taken for her to be a more adequate mother to her children.

The primary claim made by BM is that she now has insight into the reasons why the care orders were made. She said at par 5 of her submissions:

As noted above, BM said at par 29 that she now has insight that moving around states was not healthy for her children.

It is unfortunate, but as can be seen from the extract from her submissions set out above, in the one breath BM claims that she has full insight into the reasons why the care orders were made, and in the very next breath she demonstrates that she does not have that insight, because she blames others for her predicament in a way that shows that she really does not understand that it was shortcomings in her conduct that led to the care orders being made; and being made on the relatively extreme terms that were made in relation to her contact with her children. The contradiction in her own submissions that she has a true insight into the causes of her present travails appears from a substantial number of paragraphs of her submissions (for example pars 21, 22, 28, 42, 43, 43 (second), 45, 90, 111, 120, 138, 167, 169, 185, 215, 300, 301 and 320). In particular, at par 138 she said: “Docs really did not have enough evidence to remove my children from me in the first place” and “[MS] had already made malicious and spurious reports against me when our relationship was failing”. At par 169, in the middle of a sequence of submissions that provided some support for her claim that she has gained insight as to the causes for the care orders, she repeated a claim that MB had shown his children pornographic material, and said of Mr Allen’s submissions on behalf of the Department to Olsson DCJ: “Mr Allen presented a biased view to her Honour Judge Olsson by stating that I had lied to a Supreme Court Judge to get stay orders…”

On the evidence, it is simply not possible to accept the submission that MB has true insight into the reasons why the care orders were made. If there were any argument to the contrary, it would be put to rest by a Facebook entry addressed by BM to Mr Tony Abbott.

BM accepted in cross-examination that on 19 September 2015 she, through her Facebook account, set up a petition through Change.org. BM accepted that the petition was addressed to Prime Minister, Mr Tony Abbott, who had in fact been replaced a few days earlier. It was also expressed on its face to be a letter to the then Minister for Families and Community Services, Mr Brad Hazzard. The petition was in the following terms:

BM accepted that “initially” she believed that her children had been stolen from her. She said that it was not just a matter of her belief, but a fact that her children had been removed because of hearsay. She maintained that in respect of the three fathers of her children, the children were placed with the perpetrators of domestic violence against her. In response to the question: “You believe that your children have been removed from you through no fault of your own, don’t you?”, BM responded:

It will now be appropriate to outline certain objective evidence from the records of the Department and the Police that is relevant to the claims made by BM in support of her application. I have referred only to what I regard as the most significant of this evidence.

Two child protection case workers employed by the Department gave evidence. The effect of that evidence was that the Minister has no parental responsibility for any of the children. There were no open reports concerning any of the children up until 28 January 2015. Thereafter, in the period 17 January 2015 to 2 April 2015 there were a total of 14 reports. Eleven of those reports were screened out, which I take to mean that the relevant officers of the Department did not consider that they warranted being followed up. Three reports were screened in, which meant that they were considered to have passed the threshold of risk of significant harm or neglect. In the following period up to 9 July 2015, the Department received 15 reports concerning ZM and one report concerning RM and HM. Only two reports were screened in. Then in the period up to 16 September 2015, eight reports were received, four of which were screened in.

The first observation to make about these 38 reports in the eight month period is that it appears to be inescapable that the reports were made to the Department by BM (BM was not required by law to admit that she made the reports, and there was some suggestion that BM may have asked a friend to make at least one of the reports).

The reports that were screened in involved matters such as the primary carer engaging in excessive drinking, the place of residence of the child being unsafe, the primary carer displaying aggressive behaviour whilst intoxicated and like matters.

It is sufficient to record that officers of the Department visited MS at his home on 28 August 2015, and telephoned ZM’s preschool on 9 September 2015. Detailed reports of these visits prepared by officers of the Department are in evidence.

In relation to the visit to MS’ residence, it will be sufficient to set out the summary of the report of that investigation made by the Department officer in her affidavit (Ms Huxtable’s 16 September 2015 affidavit pars 23 and 26) which I consider to be a fair summary of the more detailed report:

Similarly, I accept that the following extract (par 27 of the affidavit) is a fair summary of the report prepared by the officers of the Department concerning the result of their investigation of ZM’s preschool:

MS tendered records produced by the New South Wales Police Force concerning Police involvement with BM, MS and ZM over the period from late 2010 (Exhibit D 3-1). The Police records are instructive concerning the conduct of both BM and MS. I will refer only to the records that concern incidents that occurred after Olsson DCJ delivered her judgment on 19 April 2013.

20 June 2014. BM made a complaint at Junee Police station. She complained that MS had yelled at her and told her to get off his property when she attended his home to speak to him concerning ongoing issues. She complained that MS would no longer allow her to see ZM, although she had seen him in excess of the six times per year required by the care orders.

1 August 2014. BM complained to the Police that MS would no longer allow her to see ZM, although she acknowledged that she had seen him more than the required six times per year. MS had ordered BM to leave the property. BM then attended Junee Police station and requested that Police conduct a welfare check on ZM. She claimed that MS was not in a fit state to look after ZM. Police attended MS’ property and spoke to him, and the record states:

MS complained that BM was harassing him through requesting the Police to conduct welfare checks. When the Police advised BM of the results of their visit to MS’ property, they advised BM that they would conduct welfare checks on ZM in future instances only if there was a genuine reason to do so, but they would not be used for her personal gain; that is, harassing MS after BM did not get her own way.

12 November 2014. MS complained to the Police about the number of times BM was attending his property uninvited in order to attempt to have access to ZM. The Police recorded that the care order required that BM have access to ZM at least six times per year, but that MS and BM had come to an agreement that BM could see ZM on Tuesday and Wednesday mornings, Sundays, and at any other time agreed to by MS. MS contacted the Police because BM had attended his property on a date that was not agreed to and then refused to leave the property upon request.

17 December 2014. MS called the Police for assistance to remove BM from his property as she was refusing to leave. MS and BM had argued about BM’s access to ZM. BM attended Junee Police station while the Police were at MS’ property.

7 March 2015. Police attended MS’ property in response to an anonymous informant’s statement that MS “was continuously intoxicated, the house was dirty and there was no sink to wash the dishes in”. The report states:

23 March 2015. MS complained to Police that BM had refused to leave his property and was banging on his front door. BM informed the Police that MS had made an arrangement for her to see ZM that morning but had refused to let her see him. BM claimed that she stayed over at MS’ house most nights until late. MS then informed the Police that BM had seen ZM in the last few days, but she did not come over every night and kiss ZM good night and then stay until late. BM claimed to the Police that MS is often intoxicated when he is with ZM, and that he drives intoxicated with the children. The report states:

The report states that Police had conducted a number of welfare checks on ZM over the past few weeks as instigated by BM.

25 March 2015. BM attended Junee Police Station and asked whether the Police were able to force entry into MS’ house to check on ZM’s welfare. Police advised BM that they could not. BM claimed that MS is a heavy drinker and drinks two to three bottles of Scotch per week and drives with ZM in the car the day after drinking. The report states:

31 March 2015. The Police report refers to BM contacting Police “on a regular basis and requesting for police to attend the address as she has concerns about [MS’s] drinking whilst caring for the child and the living environment of [ZM]”. The report states:

The report also stated: “Police believe [BM] is using police as a tool to win her custody battle against [MS]”, and that the Police had only made a written report because of consistent requests by BM that they do so.

10 April 2015. The report records that information had been received that ZM was being conveyed in a vehicle driven by MS’ adult daughter while not properly restrained. BM then made a report in person to the Police. The Police inspected the vehicle while it was unoccupied, and determined that if ZM had been conveyed in the vehicle in the state in which it was in, then an offence may have occurred. The Police agreed with BM to circulate an internal email to notify officers that ZM might be unlawfully conveyed in the front seat of a vehicle. The Police agreed to speak to MS’ daughter. MS’ daughter informed the police that she had ZM in the front passenger seat in a booster seat because she had three children in the second row of seats who were aged 4, 3 and 2 years of age. The report states that this arrangement “complies with the restraint regulations”. Further, the report states: “[MS] and [his daughter] have allowed police to inspect the vehicle and child restraints which complied with regulations”. The Police informed BM who “did not accept the officer’s interpretation of the legislation”. BM asserted that the legislation required the oldest child to be seated in the front passenger seat of the vehicle if all other seats were occupied by children, and after the Police reviewed the legislation they advised BM that there was no mention of the eldest child occupying the front passenger seat.

11 April 2015. MS complained to the Police that BM attended his property with a present for ZM, and was unsatisfied when MS told her that he would give the present to ZM himself. MS agreed to allow BM to give ZM the present, if she agreed to leave immediately afterwards. BM agreed, but then did not leave. The Police attended, and BM left the property after she saw the Police vehicle. The Police recorded: “[MS] appears to be extremely frustrated by the continual harassment from [BM]”.

The manner in which BM prepared her many affidavits makes it difficult to discern where she is attempting to give evidence of facts, as opposed to making mere assertions or submissions as to what the facts are.

The difficulty in assessing the reliability of BM’s affidavit evidence is compounded by its structure as a series of episodic and recurring themes that appear in various permutations and out of rational order.

It may be possible to safely draw a number of basic conclusions about the relevant facts, but it would be unsafe to put effective weight on all of the claims that BM has made.

The difficulty in accepting BM’s evidence has been compounded by the manner in which she responded to questions in cross-examination. It is not necessary to delve in detail into the cross-examination, but in my view, it became clear that BM is not psychologically capable of making concessions against her interests in responding to questions, even where the necessary and correct answer was starkly obvious. I could not tell whether BM was consciously refusing to give truthful answers; the better view may be that the psychological consequences of BM’s children being removed from her, and her attempts after that time to rationalise why she has suffered the loss of the day-to-day care of her children, and her attempts to blame other people and to deny her own fault, have caused her to form an indelible but illusory world view from which she is now incapable of departing, in respect of her submissions, her evidence, and her response to questions in cross-examination.

In the circumstances, I could not accept BM’s evidence where it is contradicted by other evidence, or when other inferences may be drawn from the documentary evidence.

It must be said at the outset that in my view, the evidence does not demonstrate that for the purposes of s 90(2) of the Care Act, there has been a significant change in any relevant circumstances that is sufficient to justify the court in allowing BM’s appeal, and giving leave for her at this stage to apply for the rescission or variation of order 2, or so much of order 3 where parental responsibility for the children are given solely to their fathers, to the exclusion of BM, until each child attains the age of 18 years.

That conclusion is based primarily on the fact that BM has not demonstrated that she has full insight into the reasons why her children were taken out of her care and put exclusively within the parental responsibility of their fathers. In the first place, BM has not demonstrated that she has taken the first step of understanding all of the reasons why the children’s fathers were given sole parental responsibility and for that reason, the court could have no confidence that BM has at this stage demonstrated that she could take parental responsibility for any of the children. In the second place, even if BM had demonstrated full insight, she has not displayed for a sufficient period of time, conduct that consistently demonstrates that she not only has insight, but that she has the discipline and commitment to act in a manner that would justify the Children’s Court in varying the care orders to give parental responsibility of her three younger children to BM at this stage.

BM therefore, has not demonstrated either that there has been any significant change in relevant circumstances, or that she now has an arguable case for the restoration of parental responsibility, as is required by s 90(2A)(e) of the Care Act.

As to the specific matters alleged by BM, first, I am not satisfied that there is any real risk that RM would attempt suicide if left within the parental responsibility of MB. Apart from the fact that I am dubious about the credibility of BM’s claims on this subject, it must be observed that the statement that BM says was made by RM was made in mid-2014, and there is no evidence of subsequent risk that RM might injure himself. There is no evidence that expressly contradicts BM’s claim, but it is hard to see how there could be.

Secondly, I do not accept MB’s claim that MS has perpetrated domestic violence against her. I am inclined to accept MS’ denial, although I believe that it is likely that there have been verbal altercations between MB and MS, and MB, as a woman, may have found those instances to be intimidating. It is not really possible on the available evidence to make any reliable findings as to who initiated altercations, or what occurred.

Furthermore, in relation to the claims made by BM concerning physical aggression on MS’ part, I am not satisfied that those claims have been proven. It is possible that verbal altercations that have arisen involved some limited form of contact between MB and MS, but it is not possible on the evidence to make any positive findings that MS was aggressive or violent, or that he put BM at any significant physical risk. I note that there is no evidence of Police involvement.

Thirdly, the evidence does not support BM’s claim that MS drinks excessively in a way that puts ZM’s safety and well-being at risk. There is no reason for the court to reject MS’ evidence on this issue, and it is supported by the reports made by the officers of the Department and the Police that I have extracted above.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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