Re M (No 8)

These reasons for judgment concern an appeal by a mother, who I will call BM, under s 91 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care Act), from a decision of the Children’s Court refusing an application made by BM under s 90 of the Care Act for leave to apply to rescind or vary care orders made in respect of three of her five children, RM, HM and ZM.

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

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

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

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

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

That led me to observe, as I said at [183]: “One proposition put by BM that I readily accept is that it is not in the best interests of ZM that his contact with his mother occurs on an irregular and erratic basis, particularly if significant periods of regular contact are broken by periods of little or no contact. I think it is likely that, as ZM grows older, that unpredictable and irregular contact between ZM and his mother is likely to become ever more damaging to his welfare and well-being”.

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

I reached the following interim conclusion:

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

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

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

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

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

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

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

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

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

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

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

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

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

The court:

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