ALZ v SafeWork

[2017] NSWCATAD 52

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CMJ v Secretary Department of Family and Community Services and Wesley Dalmar [2017] NSWCATAD 52
Hearing dates:	9 February 2017
Date of orders:	13 February 2017
Decision date:	13 February 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Anderson, Senior Member
Decision:	1. The decision by Wesley Dalmar notified on 30 December 2016 to suspend the carer authorisations of the applicants is stayed. 2. The decision to remove the children from the care of the applicants is stayed. 3. The children shall be returned to the care of the applicants within 48 hours. 4. The applicants shall provide undertakings to Wesley Dalmar as may reasonably be requested and agreed between the parties and shall comply with conditions in accordance with the undertakings reasonably imposed pursuant to section 137 of the Children and Young Persons (Care and Protection) Act 1998 and clause 34 of the Children and Young Persons (Care and Protection) Regulation 5. In the event that there is any dispute about the undertakings or conditions the parties shall have liberty to apply for determination by the Tribunal as to the extent of those undertakings or conditions to give effect to these reasons. 6. The final hearing of these proceedings shall occur commencing at 10am on 29, 30 March 2017 and if required to continue on 18, 19, and 20 April 2017. 7. The Secretary and Wesley Dalmar shall file and serve the section 58 Administrative Decisions Review Act 1997 (NSW) documents on or before 24 February 2017. 8. The Secretary and Wesley Dalmar shall file and serve any evidence on or before 10 March 2017. 9. The Applicants shall file and serve any evidence they rely upon on or before 24 March 2017. 10. Liberty to apply upon 3 days notice to the other parties and to the Tribunal.
Catchwords:	ADMINISTRATIVE LAW-review of decisions under section 245 Children and Young Persons (Care and Protection) Act 1998(NSW) and section 28 (1)(a) Community Services (Complaints, Reviews and monitoring) Act 1993 (NSW) – interim stay sought under section 60 Administrative Decisions Review Act 1997 (NSW) pending final hearing of review - primary issue is balancing of risks of harm on an interim basis- mitigation of risks possible by undertakings and conditions enforced by the agency and the Secretary- issue on final hearing is the correct and preferable decision having regard to the material before the Tribunal - interim stay granted on conditions and undertakings acceptable to the agency, the Secretary and the applicants.
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Children and Young Persons (Care and Protection) Regulation 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028 Blinko and Blinko [2015] FamCAFC 146 Deiter & Deiter [2011] FamCAFC 82 Director-General, Department of Community Services v D & Ors [2007] NSWSC 762 J v Lieschke [1987] HCA 4; (1987) 162 CLR 447 Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 M v M [1988] HCA 68; 166 CLR 69 PR v Department of Community Services [2009] NSWADT 277 Re Kerry (No 2) [2012] NSWCA 127 Roberts v Balancio (1987) 8 NSWLR 436 YG & GG v Minister for Community Services [2002] NSWCA 247
Category:	Principal judgment
Parties:	CMJ (Applicant) Secretary Department of Family and Community Services (First Respondent) Wesley Dalmar (Second Respondent)
Representation:	Counsel: L Goodchild (Applicant) G Moore (First Respondent)   Solicitors: NLS Law (Applicant) Crown Solicitor’s Office (First Respondent) Wesley Legal Services (Second Respondent)
File Number(s):	2017/00005406; 2017/00029349
Publication restriction:	Pursuant to section 65 of the Civil and Administrative Tribunal Act 2013 .a person must not, except with the consent of the Tribunal, whether before or after the proceedings are disposed of, publish or broadcast the name of any person who appears as a witness before the Tribunal in any proceedings, or to whom any proceedings in the Tribunal relate, or who is mentioned or otherwise involved in any proceedings in the Tribunal.Note that a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Introduction

1. The applicants in this matter are known by the pseudonym “CMJ” and seek administrative review of decisions which fall within the jurisdiction of the Tribunal. The applicant is actually 2 persons, who are husband and wife. The applicants were the authorised carers for 4 children under the parental responsibility of the Minister for Family and Community Services until they were “removed” from their care as authorised carers effectively from 18 November 2016. This is the date upon which the children were actually placed into respite care arranged so that the carers could travel to Queensland to assist their daughter.

2. The children were to remain in respite care until 28 November 2016 from which date they would then attend school and presumably the carers would pick them up from school. At least that was the plan that the carers were aware of prior to departing the Queensland. The children, apart from SM who spent 2 days from 26 November to 28 November 2016 with the carers, have not returned to the applicant’s home. The children were placed with 3 different respite carers. SM was returned by her respite carer to the applicants. The current arrangements for the children are that MM is with a particular carer separate from the other 3 children, and the other 3 children are with a different carer but they are now living as group. The children have had previous episodes of respite care with those particular carers, and therefore they are not total strangers to the children.

3. The children are from 2 different biological sibling groups. The first sibling group comprises MS born 3 June 2007 and KS born 27 November 2005. These 2 children have been placed with the applicant and his wife since 13 February 2008. KS was aged 2 years and MS was 8 months old when placed with the applicants. They have therefore lived with the applicants for a little under 9 years at important formative times of their development. The second sibling group comprises SM born 26 August 2010 and MM born 14 April 2008. These children were placed with the carers on 31 March 2011 and have therefore been living with them and the other children for over 5 and a half years. MM was aged 2 years and SM was aged about 7 months at the time of placement. Similarly they were with the applicants and the other 2 children at formative stages of their development.

4. Wesley Dalmar is the non-government agency with casework responsibility for the children. Wesley Dalmar suspended the approval of the applicant and his wife as authorised carers on or about 30 December 2016. This is an administratively reviewable decision as will be shown in these reasons.

5. The applicants also seek a stay of the reviewable decision to remove the children from their care. That would also mean a stay of the decision to suspend their approval as authorised carers even though that decision was by a different decision maker. The children may not remain in their care unless they are approved authorised carers.

6. The matters were heard together and the necessary parties are as identified in the case name. The stay application was originally listed to be heard on 3 February 2017. It was apparent that the legal representative for Wesley Dalmar was not aware that the application was to be heard on that date. The matter was adjourned to 2 pm on 9 February 2017 so that the stay application could be determined. This also enabled some further affidavit evidence to be filed by the applicant in support of the stay application and by the respondents to explain the factual circumstances,

Legislative provisions

7. The stay provisions are contained in sections 60, 61, and 62 Administrative Decisions Review Act 1997 (NSW). Section 60 provides:

60 Operation and implementation of decisions pending applications for administrative review

(1) Subject to this section, an application to the Tribunal for an administrative review under this Act of an administratively reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision.

(2) On the application of any party to proceedings for an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application.

(3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account:

(a) the interests of any persons who may be affected by the determination of the application, and

(b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and

(c) the public interest.

(4) While an order is in force under this section (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on application by a party to the proceedings, vary or revoke the order by another order.

8. In other words the review does not act as a stay of the decision under review. It is to be observed that the discretionary power is restricted by the operation of section 61 of the Administrative Decisions Review Act 1997. That restriction has been satisfied in this matter, because each of the “administrator[s] who made the decision[s]” were represented and able to make submissions in relation to whether there should be a stay or an order affecting the operation of the decision under review.

9. Additionally, conditions may be imposed while granting a stay for a specified period of time, or if no period is specified until the decision of the Tribunal on the application takes effect: section 62 Administrative Decisions Review Act 1997; Elgammal v Director General, Department of Transport [1999] NSWADT 82.

10. The three required considerations when determining whether there should be a stay which are to be taken into account are those set out in section 60 (3) of the Administrative Decisions Review Act 1997, which are:

(a) the interests of any persons who may be affected by the determination of the application, and

(b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and

(c) the public interest.

11. Generally, in civil litigation a stay of the operation of a decision pending an appeal is granted where a successful appeal would be useless or futile unless the stay were granted: Polini v Gray (1879) 12 Ch D 438. This application is not an appeal but an administrative review, but there is force in the rationale behind the grant of a stay in those circumstances where the review would otherwise be useless or futile.

12. It has also been said that the overriding principle in any stay application is that of upholding the interests of justice in the particular circumstances: New South Wales Bar Association v Stevens [2003] NSWCA 95 at [83].

13. Where a decision has been made in the public interest, the protection of the public is a matter entitled to significant weight: New South Wales Bar Association v Stevens (supra) at [90]-[104].

14. In New South Wales Bar Association v Stevens (supra) His Honour Chief Justice Spigelman (as he then was), with whom Meagher and Sheller JJA agreed, said this of the public interest at [103]-[104]:

“[103] The significance of the public interest dimension in the exercise of the discretion to grant a stay in such circumstances, was highlighted by Kirby J in Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306 at 309 where his Honour said:

“In the exercise of the jurisdiction to provide a stay, it has often been emphasised that cases involving a stay of the operation of the criminal law or of laws designed to protect the public (e.g. deregistration of a professional lawyer or medical practitioner) are in a class different from cases involving no more than the suspension of the operation of orders affecting two private litigants only.”

[104] It is clear from this consideration of the authorities that each case must turn on its specific facts. The range of relevant considerations is broad. Nevertheless the fact that the issues involved in professional rights to practice concern the protection of the public, means that the public interest is always entitled to significant weight.”

15. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act 2013 (NSW) or Civil and Administrative Rules 2014 (NSW) do not otherwise make provision. The rules of evidence do not bind the Tribunal (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal forms: section 38 Civil and Administrative Tribunal Act; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Where the Tribunal has a discretion to act on material which is rationally probative, subject to the rules of procedural fairness and other aspects of natural justice, the Tribunal must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Roberts v Balancio (1987) 8 NSWLR 436.

16. The "guiding principle" under the Civil and Administrative Tribunal Act and the procedural rules, in their application to proceedings in the Tribunal, “is to facilitate the just, quick and cheap resolution of the real issues in the proceedings”, subject to a principle of proportionality to the importance and complexity of those proceedings: subsections 36(1) and 36(4) Civil and Administrative Tribunal Act.

17. The Tribunal may hear an administrative review of decisions made by a “relevant decision-maker” if it is a decision referred to in section 245 of the Children and Young Persons (Care and Protection) Act for the purposes of section 28 (1) (a) of the Community Services (Complaints, Reviews and monitoring) Act 1993 (NSW).

18. Jurisdiction arises in the Tribunal as His Honour Justice Campbell observed in a matter before him which required consideration of the legislation which gave jurisdiction to the Administrative Decisions Tribunal, but now exercised by this Tribunal, in AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028 at [20]:

“As I have said, in the exercise of the statutory powers arising from sole parental responsibility, the Director-General decided not to grant daily care and control to the second defendants. The key provision that confers the Tribunal's jurisdiction in the present matter is s245 of the Act. So far as relevant, it provides:

(1) For the purposes of section 28 (1) (a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993, any of the following decisions made under or for the purposes of this Act or the regulations are reviewable by the Administrative Decisions Tribunal:

...

(c) a decision of the relevant decision-maker to grant to, or to remove from, an authorised carer the responsibility for the daily care and control of the child or young person

...

(1B) For the avoidance of doubt, subsection (1) (c) does not extend to any decision in relation to:

(a) the preparation of a permanency plan, or

(b) the enforcement of a permanency plan that has been embodied in, or approved by, an order or orders of the Children's Court.

(2) In this section, relevant decision-maker, in relation to a decision, means the person or body authorised by or under this Act or the regulations to make the decision, not being the Children's Court.”

19. In this matter it is inferred that the Secretary Department of Family and Community Services is the relevant decision maker in relation to the decision to remove from the authorised carers the responsibility for daily care and control of the children. If that is the incorrect inference when analysing the section 58 documents then Wesley Dalmar, it is inferred, acted upon the determination and decision by the Secretary that the applicants are persons causing harm to the children. The decision to remove the children from the care of the applicants, whichever entity actually made it, is one which is described by section 245 (1)(c) of the Children and Young Persons (Care and Protection) Act.

20. It is an accepted fact that Wesley Dalmar was the decision maker in relation to the decision under section 245(1)(a) of the Children and Young Persons (Care and Protection) Act which provides “(a) a decision of the relevant decision-maker to suspend a person’s authorisation as an authorised carer or to impose conditions on a person’s authorisation”. It follows as a matter of logic and prudence that if the person is no longer an authorised carer, they will not receive an authorised carer’s allowance.

21. In AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028, the Court was asked to decide whether the jurisdiction was curtailed by the provisions of the care plan in that matter where the provisions of the care plan were not obviously embodied in the order made by the Children’s Court but were considered as part of the process of exercising the Court’s jurisdiction to make a care order. His Honour Justice Campbell stated at [54]:

“In every case there must be a permanency plan, and in every case there must be a finding of adequacy and appropriateness in relation to that permanency plan. However, the permanency plan is not enforceable in every case. It is only enforceable in those cases where it has been, I will repeat, embodied or approved in an order of the Children's Court.”

22. Further, His Honour Justice Campbell in AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028, at [60] held:

“In my judgment, a finding for the purpose of s83(7)(a) does not of itself satisfy the statutory language of s83(8). Something more is required. With great respect, I am of the view that PR v Department of Community Services [2009] NSWADT 277 remains correct in its analysis. It is necessary to my mind that a particular proposal, aspect or requirement of the permanency plan is picked up and expressly incorporated in the order of the Children's Court if s 245(1B) is to be brought into play in a given case. That has not occurred here.”

23. None of the parties before the Tribunal asserted that the permanency plan in relation to any of the children had any relevance to this particular application.

24. The Tribunal clearly has jurisdiction to hear this matter.

25. The paramount principle in any action or decision under any provision of the legislation concerning a particular child is the safety, welfare and well-being of the child: section 9 (1) of the Children and Young Persons (Care and Protection) Act.

26. The Tribunal, at the final hearing of this review, is required to determine what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the decision maker: section 63 Administrative Decisions Review Act 1997; YG v GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].

27. It is provided in the Children and Young Persons (Care and Protection) Regulation 2012 (NSW) as follows:

“41 Management of behaviour of children and young persons

(1) An authorised carer, in correcting and managing the behaviour of a child or young person in out-of-home care:

(a) must not use:

(i) any physical coercion or physical punishment (including corporal punishment), or

(ii) any punishment that takes the form of immobilisation, force-feeding or depriving of food, or

(iii) any punishment that is intended to humiliate or frighten a child or young person, and

(b) must, in any event, use only behaviour management practices approved by the designated agency.

(2) An authorised carer who finds that the approved behaviour management practices are not sufficiently effective to correct or manage the behaviour of a child or young person is to notify that fact as soon as practicable to the designated agency.

(3) On receiving a notification under subclause (2), the designated agency, after assessing the situation, is to determine if the problem should be addressed:

(a) by providing appropriate advice, support and training to the authorised carer and appropriate support to the child or young person, or

(b) by changing the placement arrangements.

28. It is also provided in the Children and Young Persons (Care and Protection) Regulation 2012 (NSW) as follows:

42 Cancellation or suspension of authorisations by designated agencies

A designated agency may, by notice in writing, cancel or suspend the authorisation of an authorised carer if the agency is of the opinion that the authorised carer:

(a) is no longer a suitable person to be an authorised carer, or

(b) has failed to comply with any condition of the authorisation, or

(c) has failed to comply with any obligation or restriction imposed on the authorised carer by the Act or this Regulation, or

(d) has failed to comply with a written direction to the authorised carer by the designated agency or the Children’s Guardian under section 157 (3) of the Act, or

(e) has failed to uphold the Charter of Rights prepared under section 162 of the Act.

Note : Under section 245 (1) (a) of the Act, a decision to cancel or suspend the authorisation of an authorised carer is administratively reviewable by the Civil and Administrative Tribunal.

29. Clause 34 of the Children and Young Persons (Care and Protection) Regulation 2012 provides:

34 Conditions of authorisations

(1) A designated agency may at any time impose such reasonable conditions as it thinks fit on the authorisation of an authorised carer, including a condition that provides that the authorised carer may provide out-of-home care only to specified children or young persons or to children or young persons belonging to a specified class.

(2) A designated agency may at any time vary or revoke a condition of an authorisation imposed under subclause (1).

(3) The imposition, variation or revocation of a condition takes effect when it is notified to the authorised carer in writing.

(4) It is a condition of an authorisation that the authorised carer must comply with the code of conduct for authorised carers.

(4A) It is a condition of an authorisation that an authorised carer may provide out-of-home care only to a child or young person who is a relative or kin of the carer or who knows the carer unless the carer has completed a course of training on the provision of care for a child or young person who is not a relative or kin of the carer.

(5) In this clause:

"code of conduct for authorised carers" means the code of conduct for authorised carers approved by the Minister for the purposes of this definition and published on the relevant website of the Department, as in force from time to time.

Note : The relevant website of the Department is start="30">

Conditions of authorised care therefore may be imposed pursuant to section 137 of the Children and Young Persons (Care and Protection) Act and clause 34 of the Children and Young Persons (Care and Protection) Regulation. If the carer does not comply with those undertakings or conditions then it is up to the Department of Family and Community Services or Wesley Dalmar to take further and additional action about those matters.

Evidence relied upon

31. The original applications were filed at the beginning of January 2017. The applicant relied at the interim hearing upon an Amended Application and an Amended Administrative Review application form both dated 8 February 2017. In addition the applicant relied upon an affidavit from each of the carers affirmed on 8 February 2017 and filed on 9 February 2017. The Secretary relied upon an affidavit from the Manager Casework with responsibility for the children sworn on 8 February 2017 and filed 9 February 2017. The document referred to as the Secondary Risk of Harm Assessment completed by a senior caseworker and dated 16 December 2016 was also relied upon. Wesley Dalmar relied upon written submissions dated 8 February 2017 and the annexures to those submissions. There was no objection to the receipt of this material and the Tribunal adjourned briefly to consider the material and to allow the parties to also read that new material.

32. There was no cross-examination in relation to the evidence before the Tribunal. There was no objection to the Tribunal receiving the evidence relied upon.

Issues

33. The Tribunal, at the final hearing of this review, is required to determine what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the decision maker.

34. As framed by the carers the children’s change of placement is disruptive to their attachments and destabilising to the children’s psychological and emotional well-being, both in the short term and the long term. The carers state that the 3 female children all wish to return to their home with the applicants. The carers have indicated that they are willing to provide undertakings to address any concerns raised by the Secretary and Wesley Dalmar. There will be additional issues raised on a final hearing. It is not necessary to identify all those issues at this stage, however, some reference will be made during the course of this decision to those other issues.

35. The Secretary submits that the children have been out of the carer’s home now nearly 3 months in appropriate respite care provided by people with whom the children are familiar. There is regular contact occurring between the children and the carers. The Secretary submits that the refusal of the stay sought by the applicants would not make the proceedings useless. It is also submitted that if the children are returned on an interim basis to the care of the applicants and then the original decision is affirmed as a result of the hearing in this Tribunal, there will be disruption to the children additional to the disruption already suffered by them.

36. Wesley Dalmar supports the position of the Secretary and identifies that there was a pattern of behaviour which raised concerns about the applicants’ capacity to properly care for the children. The investigation by Family and Community Services staff came to the conclusion that the applicants were each a “Person Causing Harm” and this was communicated to Wesley Dalmar in a letter dated 19 December 2016. The suspension of authorisation of the carers is expressed to be until finalisation of the reportable conduct processes. That is referred to in the letter dated 30 December 2016 sent to the applicants by Wesley Dalmar. The carer payments ceased as a result of the suspension and the fact that the children were no longer in the care of the applicants.

37. The allegations which were investigated by the employees of the Secretary and led to them each being identified as a ‘person causing harm’, according to the letter dated 19 December 2016 sent to the carers, included:

1. That the female carer had smacked the girls in her care (including 3 girls who were temporarily placed with the carers for a period of approximately a year ending in about August 2016) and

2. That the male carer had smacked the boy in their care, MM.

3. That KS had been told by the carers that the placement will break down because of her behaviours. This appears to be something which was reported to have been said in 2014.

4. That KS and MS were told they would be split up, if and when the placement did break down, because of KS’ behaviours. It is noted that this is what happened when they were removed.

38. A ‘Person Causing Harm ‘is defined by the Secretary in the same letter as follows:

“a person about whom, following assessment, there is sufficient reason to conclude on reasonable grounds that he or she has caused actual harm to a child or young person physically, sexually, psychologically and/or through neglect.”

39. A summary of the investigation is included in the Secondary Risk of Harm Assessment dated 16 December 2016.

The evidence

40. On 23 July 2008 the Children’s Court made final orders placing MS and KS under the parental responsibility of the Minister for Family and Community Services until they turn 18 years of age.

41. On 15 July 2011 the Children’s Court made final orders placing MM and SM under the parental responsibility of the Minister for Family and Community Services until they turn 18 years of age.

42. The male applicant works part-time 20 hours per week as a disability support worker and has done so for 15 years. Prior to that he worked as a Disability Officer with Centrelink for 2 years working with remote indigenous communities and remote areas health services in Central Australia. Additionally, he has worked as a youth worker and held other positions in community welfare and government services. The applicants have been authorised foster carers for approximately 12 years. They are currently with Wesley Dalmar, although they are now suspended. They have had 11 children in long term care and 5 children in respite care during the course of their engagement as authorised carers. The children call the male carer “Dad” and the female carer “Mum”.

43. Case management for the children was transferred to Wesley Dalmar in 2013.

44. In about August 2015 the applicants had placed with them 3 female children L, J and M. It was alleged that J and L had been sexually abused by their grandfather. The carers were told that the placement with them was requested because of their ability to provide a happy environment and their experience in caring for high needs children. J was diagnosed with Autistic Spectrum Disorder, comorbid with ADHD and anxiety. L was diagnosed with Pervasive Developmental Disorder. They remained in the care of the applicants for approximately 11 months. The applicants were concerned about the removal of the girls from their stable environment and made application to NCAT for a stay order, which was granted. After a transition plan was put in place the children were placed in a long term placement in July 2016. The carers believe that this episode damaged their relationship with the agency.

45. On 18 November 2016 MS and KS were placed with a respite carer previously known to them from 29 November 2013. On the same date MM was placed with a respite carer previously known to him because he had fortnightly respite with her from after school on Friday to before school on Monday commencing 21 May 2012. On the same date SM was placed with a different respite carer to the respite carers for the other 3 children.

46. On 26 November 2016 SM’s respite carer returned her to the applicants. This occurred without the knowledge of Wesley Dalmar. On 28 November 2016 SM was then placed with the same respite carer for MS and KS (which placement apparently occurred at the emotionally charged request of the male carer). Presumably this was so that the 3 girls could be together.

47. The children have now had 4 supervised contact visits with the applicants, each of 2 hours duration, since their removal from the applicants (except for MM who has had one less than that number of times it would appear, the important fact is that there has been multiple occasions of contact). The written reports of each visit record that there were no incidents during the access visits which require follow-up. The observations made by the contact supervisors contained some opinion evidence but also recorded that the children on occasion became upset and “teary” when it was time to leave the applicants. This appears to accord with the carers observations of the children’s reaction to the cessation of contact visits.

48. According to the carers’ evidence KS has been diagnosed with Reactive Attachment Disorder in 2009, and Attention Deficit Hyperactivity Disorder (ADHD). She is prescribed Ritalin. MS has been diagnosed prior to starting school with Oppositional Defiance Disorder (ODD). MM suffers from an Acquired Brain Injury resulting from infantile spasms as a baby, and is also diagnosed with Global Developmental Delay and Autism Spectrum Disorder. MM has an intellectual delay in the moderate to severe range and has high physical care needs. He has a requirement for assistance in toileting, eating, self-care, communication and engagement in activities. MM is in a special needs year 2 class at school and requires ongoing support at school to engage in educational activities. He has limited understanding and only has a vocabulary of 20-40 words and can speak 3 word sentences.

49. The carers say that they have attended to medical reviews and accessed supports for the children whilst they were in their care. Additionally, the carers say that neither Wesley Dalmar nor Community Services contacted them to say they had concerns about the children last year or about the supports that the children required until 16 November 2016 when they were interviewed by an employee of Community Services.

The reports

50. The allegations which were investigated arise from 3 risk of significant harm reports dated 9 September 2016, 4 November 2016 and 21 November 2016.

51. The first report alleges that the 3 girls who were no longer in the care of the applicants disclosed being smacked by the female carer.

52. The second report alleges that KS took MS and SM to Woolworths to steal chocolate. The supermarket is located 15 minutes away across a busy main road. The carers were unaware the children were missing until their son called them saying that he had run into them at Woolworths.

53. The third report is that the home was infested with fleas and cockroaches, with rat faeces and glass in the main living areas.

Smacking

54. An excerpt of an interview with L, J and M is included in the Secondary Risk of Harm Assessment. While the interview is only an excerpt, it appears that there were many leading questions and the forensic value of those excerpts of interviews is minimal. There is no time indicated as to when the alleged smacking occurred. One of the children is alleged to have said that she was smacked “sometimes” and then was immediately asked “how often” to which she replied “about once or twice per month”. One of the other girls, KS stated that “sometimes they smack us, Mum hasn’t done this for a long time.” Later in the interview the same child says it has “not happened in ages”.

55. There were previous allegations of smacking which were investigated in 2012, 2013 and 2014. After the investigation in 2013 it was reported that the female carer “admitted to smacking the children however stated that she was unaware that she was not allowed to do this.” It is clear from the Children and Young Persons (Care and Protection) Regulation clause 41 that any smacking is not permitted. However it is also clear from that clause of the regulation that the designated agency does not automatically remove children from their placement because of failure in disciplinary methods but can assist the managing of behaviour.

56. The male carer denies smacking MM. The interviews with the children recorded in the Secondary Risk of Harm Assessment Report are not persuasive evidence that in fact MM has been the subject of smacking from either carer. MS did not see it happen. KS is not responsive as to whether she has been smacking of MM and is led by the questions asked of her. SM is asked leading questions and provides no clear details despite the questions.

57. The female carer in her affidavit affirmed 8 February 2017 said that she did not smack the children and neither did her husband. The female carer says that she ‘tapped’ the children with about 2 or 3 fingers on the back of the hand or their bottom if they misbehaved, did not smack them with an open hand, and never caused bruises or marks on their skin. This discipline method she says occurred on about 6 occasions. She says she stopped “tapping” the children about one year ago.

58. As a result of those most recent prior investigations in 2014 Wesley Dalmar concluded: “This matter has not met the threshold for further investigation from Wesley Dalmar.”

59. The full transcript of the interviews conducted with the 3 children who were no longer in the care of the applicants may reveal more significant forensic statements which could be given some weight than is extracted in the Secondary Risk of Harm Assessment Report. The questioning of KS shows that the questioning was leading and invited the answers which were given. SM’s interview has similar problems in terms of its forensic value. The excerpts of the interviews contained in the Secondary Risk of Harm Assessment would appear to have minimal forensic value. It is clear that there exists an issue about the type of discipline and the level of support that the carers have had in terms of modelling appropriate forms of behaviour modification. The previous assessment in 2014 from Wesley Dalmar was that there was no requirement for further investigation. It is not apparent why a different conclusion to that was made after the most recent allegations were investigated.

60. Moreover, the evidence from both carers seems to accord with the historical investigation of the allegations of smacking. There is no direct evidence to support the allegations of smacking as concluded in the Secondary Risk of Harm Assessment Report. Given the evidence of the carers and the evidence provided by the Secretary it would be difficult to conclude on an interim basis that the allegations of smacking are established to the level asserted by the Secretary. It may be that after a final hearing and more persuasive evidence, a concluded view may be that the smacking did occur as alleged. It may be that even if the allegations are not established there remains an unacceptable risk of harm in the absence of conditions or undertakings.

Lack of supervision

61. This report does not figure prominently in the reasons for removal of the children from the carers’ home environment.

62. The carers stated in their evidence that they have always adequately supervised the children.

63. This does not appear to be a significant issue on the evidence which is currently before the Tribunal.

64. In the Secondary Risk of Harm Assessment Report it is also recorded that there were previously concerns arising from a ROSH report that MM was locked in his bedroom overnight from 7 pm to 7 am. The investigation of this infers that Wesley Dalmar approved a safety device and the submission of the applicants is that there was permission from Wesley Dalmar. This was a historical matter which did not result in the removal of the children from their home at that time.

Third report

65. Both carers admit to having had a flea problem due to parasitic infestation of their “therapy” cats. Presumably, the cats have had fleas which decamped their hosts, or at least attracted the fleas to the home. They say that they used a “flea bomb” in every room and treated the problem again when one treatment did not work. Apart from the allegation that there were rat faeces and glass in the home there is no evidence that anybody observed rat faeces or (?broken) glass in the home. The allegation about rat faeces and glass is denied by the carers who say that their home is appropriate and safe for the children.

65. The carers acknowledge that they have had some clutter in their home and have undertaken to de-clutter. They have complied with the advice provided to them concerning this issue.

Other matters

67. Both carers denying refusing to allow Wesley Dalmar workers into their home. In fact, their evidence is that they have asked whether the caseworkers could knock or ‘yell out’ when they arrived at the home rather than walking straight in to the home.

68. The carers stated that they are quite happy for supervision to occur and for caseworkers to have access to the children in their home.

69. It would appear that the caseworkers have sometimes met with a less than enthusiastic reception particularly when they were investigating the risk of harm reports. This would be quite understandable in the circumstances. The more significant issue is whether a working relationship still exists between the carers and any supervising agency. The carers say that there can be and that they are willing to do anything to have the children returned to their care. The carers should carry through with this intention if there is any hope that the children can remain with the carers long-term.

Consideration of risk

70. In Blinko and Blinko [2015] FamCAFC 146 (“Blinko”), the Full Court of the Family Court discussed the appropriate approach in dealing with issues of risks and the obligation on the Court to consider whether the imposition of conditions or other safeguards would ameliorate those risks. The Full Court usefully summarised the relevant authorities as follows at [83]:

“It may be taken as well established by a line of authorities generally acknowledged to commence with Russell & Close (Unreported Full Court, 25 June 1993) that the following are correct statements of principle:

- If a Court is satisfied that a parent represents an unacceptable risk of harm to a child, then unless that risk is able to be sufficiently managed or ameliorated by, for instance, supervision of any time or communication between the parent and the child, the best interests of the child may require an order prohibiting that parent from spending time or communicating with the child;

-If the Court does not find that a parent represents such an unacceptable risk of harm, nonetheless it may take into account anxiety on the part of the other parent arising from their genuine, but not necessarily rational, belief that the parent represents such a risk of harm. In such a case, the other parent’s belief must be genuinely held. If it is entirely irrational and baseless, then the genuineness of the belief would clearly be open to doubt. However where such a belief is genuinely held, if the child spending time with a parent would sufficiently erode the other parent’s capacity to properly care for the child, then that may of itself mean that the ensuing detriment to the child determines that it is in their best interests not to spend time or communicate with the parent;

-Further, where the history of abuse, violence or like behaviour between two parents means that any continued interaction between them would similarly erode the resident parent’s capacity to care for the child, the need for peace and tranquillity in their household may be a more compelling need for the child and hence also might justify an order prohibiting the other parent from spending time or communicating with a child: see Sedgley & Sedgley (1995) FLC 92-623.”

71. In Blinko the Full Court made it clear that a necessary part of assessing risk requires the Court to also consider possible measures to ameliorate that risk. In that respect the Full Court said at [27]:

“A consideration of risk, and factors which impact upon or ameliorate the risk, will in most cases be inextricably linked. That is because “[t]he object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child”: see Hon John Fogarty AM “Unacceptable Risk – A Return to Basics” (2006) 20 Australian Journal of Family Law 249 at 261”.

72. It is of significance that the Full Court found that the learned trial judge fell into “discretionary error” when he failed to consider a range of potential means whereby the risk to the child of having a relationship with the father could have been ameliorated. Possible options, the Full Court noted at [31], were:

1. Permitting the father to send cards, gifts or letters to the child, whether on special occasions or more regularly;

2. Permitting the child to spend supervised time with the father on one or more occasions during the year for a fixed period (on a final and not interim basis);

Introducing, on an interim basis, some closely supervised time between the child and the father with adequate counselling supports, and after some period of time reviewing the efficacy of such arrangements; and

4. Requiring the mother and child to engage with appropriate therapists with a view to preparing the child for re-unification counselling with the father.

73. In terms of the obligation to address issues of risk associated with children being subject to or exposed to family violence, in Deiter & Deiter [2011] FamCAFC 82 (“Deiter”), (referred to with approval in George & George [2013] FamCAFC 182 at [21] and see also Enmore & Smoothe [2014] FamCAFC 131 at [35]), the Full Court at [61] said:

“The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made…”

74. The interests of the children which are paramount require that the assessment of risk cannot await the receipt of further historical information in the final hearing of the review application. The carers squarely raise the psychological and emotional impact upon the children due to separation from them and their separation as a combined sibling group from each other. The carers are the people who are likely to be identified as their parents and the carers stand in loco parentis to the extent permitted by the legislation. The children call the male carer “Dad” and the female carer “Mum”. It is considered that the risk of harm to the children arising from separation for all practical purposes from their “parents” and from each other is a risk which must be balanced against the risk of harm contended for by the Secretary and Wesley Dalmar. The disruption of their attachments and the length of time over which the children have developed relationships with their carers and each other, means that it is likely that separation from their long term carers and each other will not only attenuate those relationships but has the possibility of causing significant trauma to the children: see for example Director-General, Department of Community Services v D & Ors [2007] NSWSC 762 at [102]-[120]. The absence of specific expert evidence on this issue at this stage is not fatal to a determination that the attachments are likely to have formed over the period of time the children have been in the applicants’ home.

75. As the High Court has observed in a number of decisions it is considered in children’s best interests to maintain a filial relationship between children and their “parents”. In M v M [1988] HCA 68; 166 CLR 69 at [20], the High Court referred to the balancing exercise to be undertaken in assessing risk:

“The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v. Lieschke [1987] HCA 4; (1987) 162 CLR 447, at pp 450, 458, 462, 463-464.”

76. The likelihood of physical discipline occurring in the ways which have been alleged by the Secretary can be managed by accepting the undertakings proffered by the carers not to use physical discipline. While the evidence is untested by cross examination, the impact upon the children of continued separation from their primary carer figures may not be readily remediable if it continues until a final hearing determines the appropriate decision. The strength of the evidence relied upon by the Secretary and Wesley Dalmar does not have persuasive weight due to the nature of much of the questioning. In any event, as clause 41 of the Regulations referred to previously in these reasons identifies, physical discipline is simply not permitted.

77. At this stage of the evidence the Tribunal cannot make a finding that the male carer smacked MM. The evidence which is relied upon so far in support of that allegation is entirely unpersuasive and lacks forensic utility. It is more likely that the Tribunal will be unable to make a finding as to whether that alleged incident(s) occurred. Further evidence may change that interim observation.

78. One of the factors relied upon to remove the children was that KS had been told by the carers that the placement will break down because of her behaviours. This appears to be something which was reported to have been said in 2014. It is noted that KS has been living with the carers for about 9 years and the carers want her to return to their care. This is not consistent with a view that the placement will break down because of KS.

79. It was also a factor apparently relied upon by the Secretary to change the placement of the children that KS and MS were told they would be split up, if and when the placement did break down, because of KS’ behaviours. It is noted that this is not what happened when they were removed. The carers want all 4 children returned to their care and do not appear to favour return of some children and not the others.

80. The safety, welfare and well-being of the children is of paramount concern in this matter. The expert evidence which has been part of the evidence provided to the Tribunal on this interim application identifies that 3 of the children have special needs. KS has been diagnosed with Reactive Attachment Disorder in 2009, and Attention Deficit Hyperactivity Disorder (ADHD). She is prescribed Ritalin. MS has been diagnosed prior to starting school with Oppositional Defiance Disorder (ODD). MM suffers from an Acquired Brain Injury resulting from infantile spasms as a baby, and is also diagnosed with Global Developmental Delay and Autism Spectrum Disorder. MM has an intellectual delay in the moderate to severe range and has high physical care needs. He has a requirement for assistance in toileting, eating, self-care, communication and engagement in activities. MM is in a special needs year 2 class at school and requires ongoing support at school to engage in educational activities. He has limited understanding and only has a vocabulary of 20-40 words and can speak 3 word sentences.

81. As previously stated in these reasons MS and KS were placed with the applicant and his wife since 13 February 2008 when KS was aged 2 years and MS was 8 months old. They have therefore lived with the applicants for a little under 9 years. The other children being SM and MM were placed with the carers on 31 March 2011 and have therefore been living with them and the other children for over 5 and a half years. MM was aged 2 years and SM was aged about 7 months at the time of placement. It is to be expected that the children will have developed emotional and psychological attachments to the carers and each other to the extent that they are able to do so. The applicants have been authorised foster carers for a long time and at least since 2007 according to the evidence from the Secretary. They are currently carers with Wesley Dalmar, although they are now suspended. They have had 11 children in long term care and 5 children in respite care during the course of their engagement as authorised carers. The children call the male carer “Dad” and the female carer “Mum”.

82. Although the children have been out of the carer’s home now nearly 3 months in appropriate respite care provided by people with whom the children are familiar, they clearly still have an emotional attachment to the carers and the attachment they do have will become attenuated by the passage of further time.

83. There is regular contact occurring between the children and the carers but this is no substitute for the residential and day to day relationship which the children had experienced for most of their lives.

84. The children may be returned on an interim basis to the care of the applicants and if the original decision is affirmed as a result of the hearing in this Tribunal, there will be disruption to the children additional to the disruption already suffered by them. This is expected to be a manageable position for the Secretary and Wesley Dalmar to mitigate in terms of the children’s adjustments, subject to any expert guidance. The current circumstances of the children are not significantly different to that situation, with the exception that their relationships will likely become attenuated or permanently disrupted if they do not return to the care of their long term carers. That places the review application in distinct danger of becoming a futile exercise.

The interests of any persons who may be affected by the determination of the application

85. The interests of the persons who may be affected by the determination of the stay application have been referred to in more detail earlier in these reasons. A discussion of those interests will not be repeated under this heading but shall be considered as part of the determination of whether or not to grant a stay.

86. The evidence is not complete and on an interim basis it is not possible to draw final conclusions concerning those interests. However, based upon the evidence which has been filed to date those interests have been considered.

87. The interests of the children are paramount.

Submissions made by or on behalf of the administrator who made the decision to which the application relates

88. The relevant decision-makers have made submissions as referred to earlier in these reasons.

89. The Tribunal has been assisted by the submissions which have been made.

The public interest

90. The public interest is to be given significant weight because the authorisation of carers and the suspension of that authorisation in order to protect children is a matter of significant importance.

91. The Tribunal is required to give paramountcy to the safety, welfare and well-being of the children the subject of these proceedings. In those circumstances, the particular interests of these children will take precedence over the public interest.

Determination

92. The safety welfare and well-being of the children, on at least an interim basis, requires a balancing of the risks to them caused by the possibility of any unacceptable risk of harm whilst in the care of the applicants and the risk of harm likely to accrue by separation from their primary carers and from each other in the only permanent home which the children have known for most of their lives. The children MS and KS have lived with the applicants for a little under 9 years and the other children for over 5 and a half years. That is the largest portion of their lives so far in the one place and together as a group.

93. Having regard to all the matters which have been set out previously in these reasons, the Tribunal considers that it is desirable to grant the requested stay in order to secure the effectiveness of the determination of the application and to give primacy to the children’s safety welfare and well-being. A stay would have the effect of upholding the interests of justice in the particular circumstances of this application.

94. The applicant carers proffered a number of undertakings at the interim hearing and it is the Tribunal’s determination at this stage of the review application that those undertakings and any conditions that the respondents might reasonably require can be fashioned by the parties to sufficiently remove the possibility of unacceptable risk of harm to the children. The agency, Wesley Dalmar, and the Secretary have the ability under section 137 of the Children and Young Persons (Care and Protection) Act 1998 and clause 34 of the Children and Young Persons (Care and Protection) Regulation 2012 to require appropriate qualifications to mitigate the perceived risk of harm which resulted in the removal of the children from the applicants’ care.

95. The order of the Tribunal shall be:

1. The decision by Wesley Dalmar notified on 30 December 2016 to suspend the carer authorisations of the applicants is stayed.

2. The decision to remove the children from the care of the applicants is stayed.

3. The children shall be returned to the care of the applicants within 48 hours.

4. The applicants shall provide undertakings to Wesley Dalmar as may reasonably be requested and agreed between the parties and shall comply with conditions in accordance with the undertakings reasonably imposed pursuant to section 137 of the Children and Young Persons (Care and Protection) Act 1998 and clause 34 of the Children and Young Persons (Care and Protection) Regulation

5. In the event that there is any dispute about the undertakings or conditions the parties shall have liberty to apply for determination by the Tribunal as to the extent of those undertakings or conditions to give effect to these reasons.

6. The final hearing of these proceedings shall occur commencing at 10am on 29, 30 March 2017 and if required to continue on 18, 19, and 20 April 2017.

7. The Secretary and Wesley Dalmar shall file and serve the section 58 Administrative Decisions Review Act 1997 (NSW) documents on or before 24 February 2017.

8. The Secretary and Wesley Dalmar shall file and serve any evidence on or before 10 March 2017.

9. The Applicants shall file and serve any evidence they rely upon on or before 24 March 2017.

10. Liberty to apply upon 3 days notice to the other parties and to the Tribunal.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 13 February 2017