BMA and BMB v Department of Family and Community Services

[2015] NSWCATAD 20

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

BMA and BMB v Department of Family and Community Services [2015] NSWCATAD 20

Hearing dates:

7 January, 4 and 11 February 2015

Decision date:

19 February 2015

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Higgins, Principal Member
Professor P Foreman, General Member

Decision:

1. The decision of the respondent to de-authorise the applicants as authorised carers is set aside.

2. The decision of the respondent to remove the child from the applicants’ day-to-day care is affirmed.

3. Pursuant to subsection 32(2) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 the Tribunal recommends:

(a) Responsibility for the overall management of the placement of the child be transferred to the Albury offices of the respondent, and

(b) Immediate steps be taken to facilitate contact, including unsupervised overnight contact, between the child and the applicants.

4.  In regard to the applicants’ application for costs the following directions are made:

(a) On or before 20 February 2015, the applicant to file and serve their written submissions on costs, including the amount of costs sought.

(b) On or before 6 March 2015, the respondent to file and serve its written submissions in reply.

(c )The applicants’ application for costs to be determined on the papers.

Catchwords:

Administrative review – review of decision to remove a child from the day-to-day care of his grandparents

review of decision to de-authorise the grand parents as authorised out-of-home carers -

Legislation Cited:

Administrative Decisions Review Act 1997
Children and Young Persons (Care and Protection) Act 1998
Children and Young Persons (Care and Protection) Regulation 2012
Community Services (Complaints, Review and Monitoring) Act 1993

Category:

Principal judgment

Parties:

BMA and BMB (Applicants)
Department of Family and Community Services (Respondent)

Representation:

Solicitors:
A Melville for the applicants
J Smith for the respondent
K Dunbar and L Robinson for the Guardian ad Litem, B Weule

File Number(s):

1410497

Publication restriction:

Section 65 of the Civil and Administrative Tribunal Act 2013

Reasons for decision

1. The applicants, BMA and BMB (Mr B and Mrs B), seek review of two decisions of the respondent, the Department of Family and Community Services, made under the Children and Young Persons (Care and Protection) Act 1998 (the Care Act).

2. The decisions were as follows:

1. To remove the applicants’ 3 year old grandson from their day-to-day care. The respondent physically removed the child, on Friday, 30 May 2014, when its officers took the child from his pre-school and placed him in alternative care.

2. To de-authorise the applicants as out of home carers under the Care Act.

3. On 2 June 2014 the respondent wrote to the applicants to formally inform them of its decision to remove the child from the applicant’s care and to de-authorise them as carers. The reasons given for these decisions were stated as being as follows:

• Significant concerns being held in relation to Mrs B’s mental health and the impact this had on her ability to parent and support the child’s psychological development.

• Mrs B’s lack of engagement with mental health professionals.

• Mrs B’s unwillingness to engage in parenting programs and change her parenting style.

• Concerns in relation to the child being physically disciplined.

4. The applicant sought internal review of that decision. Two months later, on 14 August 2014, the respondent advised the applicants of its internal review determination. That determination was to affirm the original decisions in regard to the removal of the child from the applicants’ day to day care and to de-authorise the applicants as out of home carers. The reason given by the respondent for its internal review decision was as follows:

• Non-engagement with its Services.

• Mrs B’s deteriorating mental health.

• Mr and Mrs B’s inability to consider and change behaviour in relation to their parenting and understanding of the child’s needs.

• The outcome of a placement review conducted by the Victorian Department of Human Services.

5. Being dissatisfied with the decision with the respondent’s internal review determination, the applicants made this application for review.

6. There is no dispute that the Tribunal has jurisdiction to hear and determine the applicants’ application: see s 38 of the Administrative Decisions Review Act 1997, s 28 of the Community Services (Complaints, Review and Monitoring) Act 1993 and s 245 of the Care Act.

7. The role of the Tribunal in hearing and determining this application is to decide the correct and preferable decision having regard to the material before it, including any relevant factual material and any applicable written or unwritten law: see subs 63(1) of the Administrative Decisions Review Act 1997.

8. That is, the Tribunal sits in the shoes of the respondent and considers the matter afresh as at the time of the hearing.

9. The applicants’ application came before us at a hearing on 7 January 2015 in the Local Court, at Albury.

10. In support of their case, the applicants relied on two joint statements they made and another three statements by persons from their local community. These persons gave written evidence of their observations of the child in the day-to-day care of the applicants.

11. In support of its case, the respondent relied on an affidavit sworn by Ms Kate Molony, Acting Manager Case Worker from the respondent’s Port Macquarie Community Services Centre. It also relied on the file and served section 58 documents and a selection of material that was extracted from documents produced by the Upper Murray Family Care Kinship Support Program.

12. At the hearing, Mr and Mrs B gave oral evidence and were cross-examined by Ms J Smith, solicitor for the respondent. Ms Molony also gave oral evidence and was cross-examined by Mr A Melville, solicitor for the applicants.

13. As Ms Weule, the Guardian ad Litem appointed to represent the child, had not been given an opportunity to meet with the child or observe him in his current placement, we adjourned the hearing to 11 February 2015, in Sydney, and granted the applicants and their solicitor with leave to appear by telephone on this day. Subsequently, we also made orders for the filing and serving of written submissions by the parties and a report by Ms Weule.

14. On 4 February 2015, at the adjourned hearing, the parties gave further oral submissions and Ms Weule, presented her report. At the conclusion of this short hearing, we adjourned the matter to today’s date for the purpose of finalising the matter and giving a decision and oral reasons for decision.

15. We have now considered all the material before us and for the reasons we are about to give we have determined:

1. the decision to de-authorise the applicants as authorised carers is not the correct and preferable decision and should be set aside; and

2. the decision to remove the child from the applicants’ care is the correct and preferable decision and should be affirmed. In making this decision we have not found that the respondent’s actions in suddenly removing the child from the applicants’ care, on Friday 30 May 2014, was justified. We will say more about this shortly, including some recommendations about future contact with the applicants.

3. This application has also raised a number of issues in regard to policies and procedures of the respondent concerning the sudden removal of children from the day-to-day care of an authorised carer and informing the carer of his/her rights to seek review by the Tribunal under the Administrative Decisions Review Act 1997. We will briefly mention these later.

16. Before we give our reasons for decision it is convenient to set out the background to the decisions the subject of review and the applicable legislation.

The factual background

17. The applicants are the maternal grandparents of the child, born in July 2011. He is now three and a half years of age.

18. The child is the son of the applicants’ daughter. Mrs B is 59 years of age and Mr B is 61 years of age. They have been married for 22 years. Neither Mrs B or Mr B work, and both receive a Disability Pension.

19. The applicants live in rural Victoria close to the NSW border. Their marriage was a second marriage for both of them and they each have children from their respective first marriage. Their only child together is the mother of the child the subject of these proceedings. The mother is an adult and 22 years of age.

20. The child was born in Victoria, in a town close to the applicants’ home. The applicants had regular contact with the child from the time he was born.

21. In December 2012, when the child was about 18 months of age, the applicants’ daughter relocated to NSW with her then partner and the child.

22. On 30 January 2013, the respondent, through its offices at Port Macquarie assumed responsibility for the child while he was in hospital. The respondent assumed responsibility because the child had sustained significant bruising to his groin and he had sustained eight fractures to his body over a period of approximately 6-8 weeks. Mrs B and her older daughter travelled to Port Macquarie on hearing that the child was in hospital. Mrs B remained in Port Macquarie until July 2013, when the child was placed into her care and that of her husband.

23. In the meantime, on discharge from hospital, the child was placed into the day-to-day care of an authorised carer within the region of the hospital. The officers of the respondent, in the Port Macquarie office, arranged the placement with one of their authorised carers.

24. On 4 February 2013, the respondent lodged a care application in regard to the child with the NSW Children’s Court in Port Macquarie.

25. In May 2013, the applicants were assessed as suitable kinship carers for the child. The assessment was undertaken by the Victorian Department of Human Services, who recommended the placement be supported by the Upper Murray Family Care Kinship Support Program.

26. On 28 June 2013, by consent, the NSW Children’s Court, at Port Macquarie, made a care order, under the Care Act, placing the child under the parental responsibility of the Minister until he reached 18 years of age. As we have noted, the child was placed into the applicants’ care shortly thereafter. The child was 2 years of age. The placement of the child with the applicants was a permanent placement, in accordance with the terms of the Care Act.

27. On 20 December 2013, the NSW Children’s Court, at Port Macquarie, made final care orders under the Care Act. The final care orders were to the effect that all aspects of parental responsibility for the child were vested in the Minister until the child reached 18 years of age.

28. At the time the child was placed into the applicants’ care, the intention was to transfer the management of that placement to the Victorian Department of Family Services. However, that transfer was never actioned and the respondent’s Port Macquarie office has retained responsibility for the management of the placement of the child even though it is 930 kilometres away from where the applicants live and where the child was placed. In her evidence, Ms Molony explained that the Port Macquarie office had sought to transfer the management responsibility of the placement from the Port Macquarie offices to the Albury offices of the respondent. We were informed that the Albury office of the respondent refused to accept the transfer.

Legislation

29. Chapter 8 of the Care Act makes provision for out-of-home care and the authorisation of carers to provide such care.

30. Section 9 of the Care Act sets out how the provisions of that Act and the regulations made pursuant to that Act (e.g. the Children and Young Person (Care and Protection) Regulation 2012) are to be administered. This includes the manner in which the provisions relating to out-of-home care and the authorisation of carers are to be administered.

31. The principles in section 9 include the following:

9    Principles for administration of Act

(1)  This Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount.

(2)     Subject to subsection (1), the other principles to be applied in the administration of this Act are as follows:

(a)     …

(b)     …

(c)     In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child’s or young person’s development.

(d)     …

(e)    If a child or young person is placed in out-of-home care, arrangements should be made, in a timely manner, to ensure the provision of a safe, nurturing, stable and secure environment, recognising the child’s or young person’s circumstances and that, the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement.

(f)    If a child or young person is placed in out-of-home care, the child or young person is entitled to a safe, nurturing, stable and secure environment. Unless it is contrary to his or her best interests, and taking into account the wishes of the child or young person, this will include the retention by the child or young person of relationships with people significant to the child or young person, including birth or adoptive parents, siblings, extended family, peers, family friends and community.

(g)     If a child or young person is placed in out-of-home care, the permanent placement principles are to guide all actions and decisions made under this Act (whether by legal or administrative process) regarding permanent placement of the child or young person.

32. As we have noted, in seeking the care orders in respect of the child, the respondent presented the NSW Children’s Court with a Care Plan that identified the placement of the child with the applicants as a permanent placement.

33. Section 137 of the Care Act defines what is meant by the term ‘authorised carer’. This includes the principal of a ‘designated agency’ and ‘a person who, in accordance with the regulations, is authorised as a carer.’ The respondent is a ‘designated agency’ (see section 139 of the Care Act) and Division 2 of Part 6 of the Children and Young Person (Care and Protection) Regulation 2012 (the Regulation) contains the provision relating to the authorisation of carers.

34. The Regulation makes provision for four classes of authorisation – general authorisation (see clause 30), emergency authorisation (see clause 31), authorisation to enable special care (see clause 32) and authorisation to give respite to usual authorised carers (see clause 33).

35. The conditions of authorisation are set out in clause 34 of the Regulation, which include a requirement that the authorised carer ‘must comply with the code of conduct for authorised carers.’ The ‘code of conduct’ is defined to mean the code of conduct for authorised carers approved by the Minister and published on the respondent’s website. Clause 35 of the Regulation provides that the designated agency that authorises a carer under the abovementioned clauses must cause the person to be given a copy of the authorisation in writing and the authorisation must set out the conditions of that authorisation.

36. Clause 41 of the Regulation makes provision for the management of behaviour of children and young persons. That clause is in the following terms:

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.

37. Clause 42 of the Regulation makes provision for the cancellation or suspension of an authorisation of a carer. That clause provides:

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.

38. A copy of the relevant code of conduct was tendered into evidence. The code of conduct provides as follows:

Follow the behaviour management policy of the designated agency. This will include ways to encourage positive behaviour in children and young people and appropriate actions to respond to challenging behaviours

Only use behaviour management practices as described in the behaviour management policy or approved by the designated agency. The use of any physical punishment or coercion, immobilisation, force-feeding, deprivation of food or any punishment intended to humiliate or frighten a child or young person is not permitted

Report any incident where physical restraint has been used following the protocol for critical incident/event reporting within the designated agency. …

39. The code of conduct also describes what authorised carers can expect. This includes being respected for their opinion and being consulted on decisions about the care of the child or young person in their care and support and training on ways to encourage positive behaviour in children and how to respond appropriately to challenging behaviours.

The decision to remove the child from the applicants’ care

40. It was the evidence of Ms Molony that the decision, of 30 May 2014, to remove the child from the applicants’ care was made so as to ‘minimise any risk of further emotional harm’ the child may be exposed to by Mrs B’s mental health/emotional state.

41. Mrs B has suffered from depression for over 20 years and this was well known to the respondent at the time she and her husband were assessed as being suitable permanent carers for the child. Although there were some incidents concerning Mrs B’s mental health from the time the child was placed into the applicants’ care, Ms Molony said that the incident giving rise to the decision to suddenly remove the child from the applicants’ care was a telephone conversation Mr Adam Beck of the office of the respondent, in Port Macquarie, had with Mrs B, at her home, many miles away, seven days earlier on Friday 23 May 2014.

42. The evidence is that on this day (23 May 2014), Mr Beck was advised by the child’s pre-school that they had raised with Mrs B concerns they had about the child’s escalating aggressive behaviour towards other children at the pre-school. Mr Beck was advised that Mrs B responded by saying that she would not be returning the child to the pre-school. Mr Beck then telephoned Mrs B to ‘ascertain her current emotional state’. He recorded Mrs B as ‘sounding teary and presenting with a flat affect’ and when he suggested that Mrs B allow the respondent to place the child in respite for the weekend she became upset and asked that he not be taken from her.

40. One week later, without any further concerns having been raised about Mrs B’s mental health and the child having continued to attend pre-school, the respondent suddenly decided to remove the child from the applicants’ care.

41. This was clearly very traumatic for the child and the applicants who Ms Molony readily acknowledged loved the child very much and to whom the child had formed a strong attachment. They were in a sense his most stable attachment since he was born.

42. While we accept that there were issues in regard to Mrs B’s mental health, there is no direct evidence of the child being subject to emotional harm, or ‘further emotional harm’ because of Mrs B’s mental health.

43. What is evident from the material before us is that the respondent’s officers in Port Macquarie were finding it difficult to manage the placement, a new placement, from such a long distance away. This is also evident from the documents produced, pursuant to a summons, by the Upper Murray Family Care Kinship Support Program.

44. As we have noted the Port Macquarie office of the respondent did seek to transfer the management of the placement to the Albury office of the respondent. The Albury office, we were informed, refused to accept the transfer of the management of the placement and hence the Port Macquarie Office had no alternative but to continue to manage the placement from such a long distance away. These are internal management issues for the respondent to address and not ones for the Tribunal to deal with in this application. Nevertheless, if Ms Molony is correct in her evidence, a refusal to accept a transfer of a placement of this kind may be inconsistent with the principles set out in section 9 of the Care Act.

45. In light of difficulties encountered with the placement, sometime in late March 2014, the respondent officers in Port Macquarie decided to transition the child to a new permanent placement within the Albury region. A new permanent placement was found with an authorised carer, authorised through Challenge Services, a designated agency under the Care Act. That placement had been identified by 30 May 2014 and the child has remained in that placement since that day. And while the respondent officers in Port Macquarie retain overall management of the placement of the child, the day to day management of the placement is by Challenge Services, which is located within the Albury region. Accordingly, many of the difficulties experienced by the respondent and the applicants in the management of the placement of the child with the applicants are no longer of any concern. We note that the issues raised by Mrs B in regard to the number of days the respondent required the child to attend pre-school and his increasing aggressive behaviour have been addressed in that he attends fewer days and his behaviour has improved.

46. It was the evidence of Ms Molony that while it had been decided to move the child to another permanent placement, it had also been decided that a gradual transition from the applicants to the new placement was not a possibility given Mrs B’s mental health.

47. Again, based on the material before us, we have some difficulty with this decision, but are not critical of Ms Molony. As this decision is not a decision the subject of review in this application we have considered it no further, other than to note it was made.

48. As we have explained the role of the Tribunal is to determine the correct and preferable decision as of today’s date. That is, the Tribunal must also take into account the events that have occurred since the child’s removal from the applicants’ care, including evidence in relation to his current placement. In this regard Ms Weule, the appointed Guardian ad Litem for the child has recommended that the child’s best interests are that he remains in the day-to-day care of his current carers. She has made this recommendation on the basis of the material before the Tribunal and having met with the applicants, the current carers and the child. In her report Ms Weule said the child appears to have bonded closely with the current carers and that another move would be difficult for him. In recommending that the child remain with his current carers, Ms Weule also recommended that contact between the child and the applicants be implemented. In her submissions to the Tribunal on 7 February, Ms Weule said that this should be unsupervised and for weekends and holidays.

49. As we have already indicated we agree with these recommendations of Ms Weule.

50. However, as the respondent has relied on a number of other factors as the basis of its decision being the correct and preferable decision, we will also deal with these briefly.

51. The first matter is an alleged failure of Mr and Mrs B to engage with Services. The evidence is that in August 2013, not long after they took responsibility for the day-to-day care of the child, the applicants self-referred to the Upper Murray Family Care Kinship Support Program seeking assistance with parenting the child. They did so as they had not been parents of a young child for many years. After a more formal arrangement was reached between the respondent and the Upper Murray Family Care Kinship Support Program, on 9 October 2013, Ms Melanie Kilo (Ms Kilo) of the Program made her first visit to the applicants’ home.

52. Some assistance was also received from a maternal child health nurse. That nurse continued to visit the applicants’ home up until the child was removed on 30 May 2014.

53. In February 2014, it was Ms Kilo who indicated to the respondent that she was struggling to engage with the applicants. She is recorded as saying she felt the applicants were not responding to her recommendations on strategies to deal with the child’s behaviour (i.e. discipline strategies). It was on this basis the respondent sought a Carer Placement Review by the Victorian Department of Human Services.

54. There is no dispute that Mrs B and Mr B both sought assistance in performing their role as authorised carers for their grandson. Mrs B, in her evidence said she listened to what was recommended, but she found it did not work. In our view, in the absence of any direct evidence from the maternal child health nurse, or Ms Kilo it cannot be said that Mrs B or Mr B failed to engage in these services. They appear to have initiated them and tried to adopt their recommendations, but they did not withdraw from those services.

55. We also note that Mrs B had willingly participated in and completed the Triple P Group Parenting Program which had been arranged by the respondent. She commenced that program in mid February 2014 and completed it one month later. It was the evidence of Mrs B that she had wanted to attend an earlier session of the program, however it was not available.

56. The other concern of the respondent was Mrs B’s reluctance to send the child to pre-school for three days a week. Mrs B’s reluctance was not because she had concerns about the pre-school – her concerns related to the child’s ability to cope with three days. This concern appears to have been a valid one as the current carers have reduced the days to two days on the basis of three days being too much for the child.

57. The other matter of concern for the respondent was Mrs B’s failure to engage with mental health professionals. While we appreciate the respondent’s concerns about Mrs B’s ongoing mental health, we find that these concerns were probably exacerbated due to the distance between the officers of the respondent managing the placement and where Mrs B and the child were located. Again we are not critical of the individual officers of the respondent at Port Macquarie.

58. The next matter is Mrs B’s alleged deteriorating mental health. The respondent points to a number of incidents which it asserts evidence’s Mrs B’s deteriorating mental health. The first incident occurred on 27 August 2013, when Mrs B was referred, by her counsellor, to the local mental health service on the basis she had disclosed suicidal ideation and self-harm to the counsellor. In her evidence, Mrs B denied she had made such disclosures, but did explain that she had disclosed that she had ‘loud discussions’ with Mr B that resulted in her grabbing a knife and stabbing it into the kitchen bench. Her evidence was supported by the clinical presentation record of her referral. That record also noted that Mrs B had significant childhood adversity and that her current family responsibilities became overwhelming at times. The note went on to say Mrs B expressed insight into her behaviours and the impacts on her expressions of anger/frustration may have on others.

59. In her oral evidence Mrs B said she often became overwhelmed when her youngest daughter also came to their home for contact with the child. This she said often caused considerable friction within the family and an escalation of behaviour problems with the child. Mrs B said she found this difficult to deal with. Mr B said he loved his youngest daughter but did not agree with what she was and had been doing.

60. The next incident occurred on 24 October 2013 when Mrs B presented at the local hospital stating that she was having trouble coping with the child’s behaviour. We note that this incident occurred after the child’s mother had contact with the child at the applicants’ home. Mrs B said the visit had resulted in an escalation of the child’s behaviour, which she could not cope with. We also note that at this time Ms Kilo had only made two visits to the applicants’ home. The most recent of those visits being ten days prior to the events of that day.

61. The next recorded incidents are those where the respondent recorded the applicant as appearing down in mood during a telephone conversation. These records are dated 20 December 2013 and 23 May 2014. We have already dealt with the latter record and the earlier record is in similar terms.

62. At the request of the respondent, the applicant obtained a medical report in regard to her depression. The report is dated 2 April 2014. In the report, Mrs B’s treating doctor noted that Mrs B had been receiving treatment for depression since 2002 and that she had been stable for some time on her current medication. The doctor said Mrs B had never been referred to a psychiatrist, but her medication was reviewed on a regular basis, at least every couple of months. The doctor said Mrs B was very compliant on medication and has been seen by counsellors from time to time. The doctor said Mrs B was coping with her depression well and he expected Mr and Mrs B would be able to care for the child appropriately notwithstanding Mrs B’s depression and Mr B’s chronic back pain.

63. The respondent submits that the doctor’s report is of limited assistance as he makes no mention of Mrs B’s recorded suicidal ideation in August and October 2013. In our view, this does not mean that the doctor was not made aware of these matters. In our view, Mr and Mrs B are not people who minimise Mrs B’s mental health issues. On the contrary they are very open about it and to some extent their openness is against their own interests. The evidence is that Mrs B is fully aware of her illness and she appears to seek help when she realises she is not coping. This, in our view, is also reflected in the doctor’s report.

64. Attached to the applicants’ supplementary joint statement is a letter from the North East & Border Mental Health Service dated 23 December 2014. The letter states that Mrs B was referred to that service, by her counsellor, on 28 November 2014. The letter states that Ms B’s distress at the time of referral was ‘congruent with her situation’ and no suggested change to her prescribed treatment was made. It was suggested that she continue with her counselling, but in the ‘absence of clinical symptoms …., ongoing involvement with specialist mental health services was not indicated,’

65. On the basis of Mrs B’s evidence and the material before us, Mrs B appears to be continuing to cope with her depressive illness by taking her medication.

66. In regard to Mr and Mrs B’s inability to consider and change behaviour in relation to their parenting style and understanding of the child’s needs, the respondent’s concerns relate to Mr and Mrs B’s disciplinary style, which is described as giving the child a smack on the nappy and yelling at the child.

67. There is no direct evidence of anyone having seen Mr or Mrs B smack and yell at the child. The only evidence of this occurring is that of Mr and Mrs B during their conversations with Ms Kilo after they had found her strategies for disciplining the child were not working.

68. As we have already noted, physical discipline of a child in care is not permitted under clause 42 of the Regulation and the Code of Conduct.

69. There was an issue as to whether the applicants received a copy of the Code of Conduct. Ms Molony said she had sent it, but the applicants said they did not receive it. In our view, nothing turns on this as the applicants readily acknowledged that physical discipline was not acceptable and they wanted to understand what was acceptable. What they were told by Ms Kilo has not been put into evidence, nor has the respondent produced a document (i.e. a policy or procedure) for managing behaviour of the kind the applicants were experiencing. The applicants’ evidence was that what they were told by Ms Kilo did not work and in the absence of it working they could not see how a little smack on the child’s bottom, while clothed, was unacceptable.

70. In our view, on the material before us, it cannot be said that the applicants were unwilling to change their parenting style. Nor is there any evidence that their parenting style was such that the child was traumatised, or at risk of significant harm.

71. The final matter raised by the respondent was the placement review conducted by Ms Fanner of the Victorian Department of Human Services. Ms Fanner based her report on interviews she conducted with the applicants on 25 February and 4 March 2014. She states that each interview lasted two and a half hours. We note Ms Fanner did not conduct the interviews at a time the child was also present. That is, she did not have an opportunity to observe the child’s relationship with the applicants and vice versa.

72. In her report, Ms Fanner said she was instructed to seek the applicants’ views as to how the child had settled in, their parenting styles and what they had learnt, their methods of disciplining and what strategies they had in place to look after their own well-being.

73. Mr and Mrs B, as we have found them, were clearly very open and honest about their experience, their parenting styles and the support, or lack of support they had during their interviews with Ms Fanner.

74. In her report, Ms Fanner concluded that the placement of the child with the applicants required significant intervention and support to ensure the child was provided with an environment whereby he could meet his full development potential and is free from risk of future emotional and physical abuse by his carers. As we have noted, there is no evidence of the child having been subjected to emotional or physical abuse by the applicants while he was in their care.

75. Ms Fanner’s qualification, experience and expertise have not been explained. Nor was she called to give oral evidence.

76. Nevertheless, we note the intervention supports recommended by Ms Fanner. These, as described below, primarily relate to Mrs B and her health and Mr and Mrs B’s relationship:

• Full mental health assessment of Mrs B including a mental health plan with regular reviews and ongoing support and review for off her medication.

• Ongoing counselling and intervention for Mrs B in relation to past abuse and grief and loss issues.

• A full parenting assessment of Mrs B.

• Relationship counselling for the applicants.

• Regular respite for the child in a positive environment.

80. Ms Fanner also suggested consideration might be given to an alternative placement of the child given the applicants’ responses during interview.

81. In her evidence, Ms Molony said that, in light of Ms Fanner’s report, the respondent had determined it was in the child’s long term best interest to remove the child from the applicants’ care, rather than invest in the matters recommended by Ms Fanner.

82. In conclusion of the maters raised by the respondent - we accept the evidence is that Mrs B was not coping with the child’s behaviour. On the material before us, we accept this lack of coping may be attributable, in part, to Mrs B’s longstanding depressive illness. However, we do not accept that the evidence establishes that Mrs B’s mental health was deteriorating. Nor do we accept that the applicants failed to engage with services of the respondent, or that they were unable to consider or change their behaviour in relation to their parenting style and understanding the child’s needs. We agree with the respondent that more needed to be done to address these issues.

83. However, it is now almost 11 months since the child was removed from the applicants’ care and as we have indicated, in our view, the evidence of Ms Weule, the Guardian ad Litem, is very persuasive. It was the evidence of Ms Weule that given the lapse of time since the child was removed from the applicants’ care and his current attachment to his new carers, the child’s best interests lay in him remaining in his current placement. That placement we note is a positive placement and one where the existing carers have openly sought regular contact between the child and the applicants. At the same time we find that the applicants are loving grandparents who do not present a risk to the safety of the child and should be given every opportunity to be grandparents to the child to the best of their ability. This will serve both the interests of the child, the applicants as grandparents and also the current carers. However, for this relationship to work the management of the placement should be transferred, as a matter of urgency, and there should be an immediate exchange of information between the applicants and the existing carers. We note that this has been proposed and that a contact schedule has been put forward to the applicants by Challenge Services, the current agency managing the placement of the child.

84. The proposed schedule appears to be very regimented and in our view a possible source of future conflict. While we understand the applicants’ reluctance to see the child being placed into the day-to-day care of persons who are not family members, this does not mean that they cannot have a very active and important role in the child’s life as grandparents. This is the role they would have had if the child was in the care of his parents, and we encourage them to see their relationship with the child in that context. Once they get to know each other, contact may be able to be initiated between them and the new carers in a less formal way that also enhances the child’s best interests.

De-authorising of the applicants

85. The grounds on which the respondent have de-authorised (cancelled) the applicants as authorised carers under the Care Act are the same as those relied on to remove the child from the applicants’ care. As we have found that these grounds were not established on the material before us and there is no evidence of the child being at risk of harm or significant harm, we find the decision of the respondent to cancel the applicants’ authorisation was not the correct and preferable decision.

86. Ms Smith, the solicitor for the respondent contended that the de-authorisation of the applicants as carers flowed automatically as a result of the decision to remove the child from the applicants’ day-to-day care. She explained the applicants had been authorised as carers, only to the extent of being suitable carers of their grandchild. That is, their authorisation did not extend beyond caring for the child.

87. Ms Smith also advised that the applicants could continue to have contact with the child without the need for any form of authorisation. She explained that such contact was treated as family contact and did not fall within the terms of the Regulation.

85. As we have noted, there are four classes of authorisation provided for in the Care Regulation. These are the general authorisation in clause 30, the emergency authorisation in clause 31, the special care authorisation in clause 32 and the respite authorisation in clause 33.

86. We have not been provided with a copy of the applicants’ authorisation as carers. However, on the material before us, their authorisation was not for emergency, special care or respite. Hence, it must have been a general authorisation, which appears to be of general application and not restricted in regard to the child or children placed into the carer’s care.

87. We note clause 34 of the Care Regulation makes provision for the respondent to place conditions on an authorisation. Again we have not been provided with a copy of the applicants’ letter of authorisation.

88. Even if the applicants’ authorisation was restricted in the manner contended by Ms Smith, on the basis of our findings in regard to the decision to remove the child from the applicants’ care, that authorisation would lapse as we have the grounds relied on by the respondent to cancel the applicants’ authorisation has not been established.

Other matters

92. This matter has again raised a number of procedural and policy issues in regard to decisions of the kind the subject of this application. We will deal with these briefly and urge the respondent to address them.

93. We note the respondent did not, in its letter of 2 June 2014, inform the applicant of their right to make an application to the Tribunal for review and a stay of its decision to remove the child and de-authorise the applicants. A right to seek review and a stay can be made under subsection 55(4)(b) and section 60 of the Administrative Decision Review Act 1997. These provisions have been expressly inserted so that applicants wishing to have a decision of an administrator reviewed, preserve their interests in the decision that was made. They also envisage applications being made soon after being notified of the decision of the administrator and before any internal review application has been made.

94. Decisions about the removal of a child from an authorised carer, is clearly a decision to which these provisions apply and it is in the interest of the carer and the child that applications are brought as soon as possible. Section 48 of the Administrative Decisions Review Act places an obligation on an administrator making a decision that is a decision reviewable by the Tribunal to inform the person the subject of the decision of his/her review rights under that Act. These are the internal review rights and the external review rights.

95. Accordingly we recommend the respondent include in its standard form of letter in regard to decisions (original) that it makes, under subsection 245(1) of the Care Acts, the person’s right to right to seek review by the Tribunal in addition to the right to seek internal review.

96. Finally, we are concerned the respondent did not produce any policies or procedures in regard to making decisions about the removal or transition of a child in out-of-home-care. Nor were we provided with a copy of the respondent’s behaviour management policy (if any).

97. In regard to the former, we have been provided with a copy of a policy of this nature, which sets out the circumstances which warrant a decision that a child be removed from the day-to-day care of an authorised carer. If a policy of this nature exists, we recommend the respondent ensure that its officers in its regional office have a copy and apply it when making decisions of this nature.

98. Ms Smith informed us the respondent does not have a policy in regard to how the discretion in clause 42 of the Care Regulation is to be exercised, where one or more of the matters in that clause are established. We recommend consideration be given to developing such a policy so that are consistent decisions can be made.

99. We make a similar recommendation in regard to behaviour management, if no such policy exists. These will assist authorised carers and decision makers.

Orders

100. For the reasons we have set out, we make the following orders:

1. The decision of the respondent to de-authorise the applicants as authorised carers is set aside.

2. The decision of the respondent to remove the child from the applicants’ day-to-day care is affirmed.

3. Pursuant to subsection 32(2) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 the Tribunal recommends:

1. Responsibility for the overall management of the placement of the child be transferred to the Albury offices of the respondent,

2. Immediate steps be taken to facilitate contact, including unsupervised overnight contact, between the child and the applicants.

101. The applicant has also made an application for costs and we make the following directions in this regard:

1. On or before 20 February 2015, the applicant to file and serve their written submissions on costs, including the amount of costs sought.

2. On or before 6 March 2015, the respondent to file and serve its written submissions in reply.

3. The applicants’ application for costs to be determined on the papers.

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: 19 February 2015