BWO and BWP v Barnardos Australia

[2015] NSWCATAD 216

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BWO and BWP v Barnardos Australia [2015] NSWCATAD 216
Hearing dates:	23 July 2015
Date of orders:	21 October 2015
Decision date:	21 October 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M W Anderson, Senior Member M Bolt, General Member R Royer, General Member
Decision:	(1)That the decision made on or about 28 April 2015 and notified to the applicants by letter dated 4 May 2015 to not proceed further with their application to provide permanent care with a view to adoption for the child currently placed in a crisis placement with the applicants through the Barnardos Temporary Family Care program on the basis of their financial circumstances in relation to the applicants’ capacity to adequately provide for the child’s needs, is set aside. (2)The respondent is to proceed further with the assessment application of the applicants to provide permanent care with a view to adoption for the child currently placed in a crisis placement with the applicants through the Barnardos Temporary Family Care program on the basis that the requirement for the financial circumstances in relation to the applicants’ capacity to adequately provide for the child’s needs is satisfied. (3)It is noted that by reason of the Order made on 21 May 2015 pursuant to section 55 (3) of the Administrative Decisions Review Act 1997 (NSW), the Tribunal is satisfied that it is necessary to deal with this application notwithstanding an internal review application has not been made.
Catchwords:	ADMINISTRATIVE LAW-review under section 63 Administrative Decisions Review Act 1997-decision made under section Adoption Act 2000 (NSW) and review jurisdiction conferred by clause 72 (1) (a) of the Adoption Regulation 2003 (NSW) (repealed) or clause 125(1)(a) and 125(1)(b) of the Adoption Regulation 2015 (NSW) - current authorised carer seeking to be assessed to provide permanent care with a view to adoption as an adoptive parent - assessment of carer’s financial position – carer has the care of a biological child as well as the care of the child placed under the Children and Young Persons (Care and Protection) Act 1998 (NSW)- correct and preferable decision having regard to the material before the Tribunal – child’s best interests enhanced by remaining in current placement and the full assessment to provide permanent care with a view to adoption as an adoptive parent to be undertaken- substituted decision.
Legislation Cited:	Adoption Act 2000 (NSW) Adoption Regulation 2003 (NSW)(repealed) Adoption Regulation 2015 (NSW) Administrative Decisions Review Act 1997(NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) Court Suppression and Non-Publication Orders Act 2010 (NSW) Evidence Act 1995 (NSW) Interpretation Act 1987 (NSW) Subordinate Legislation Act 1989 (NSW) Uniform Civil Procedure Rules 2005, Schedule 7
Cases Cited:	ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18 ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1 Application of PL, re TB and FB [2007] NSWSC 665 AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028 Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 BHY v Children’s Guardian [2015] NSWCATAD 91 Carr v Simnovic (1980) 26 SASR 263 Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205 Commission for Children and Young People v FZ [2011] NSWCA 111 Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378 Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 PR v Department of Community Services [2009] NSWADT 277 Re Kerry (No 2) [2012] NSWCA 127 Roads and Traffic Authority of New South Wales v Barrie Toepfer Earthmoving and Land Management Pty Ltd (No 7) [2014] NSWSC 1188 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 Roberts v Balancio (1987) 8 NSWLR 436 YG & GG v Minister for Community Services [2002] NSWCA 247
Category:	Principal judgment
Parties:	BWO and BWP (Applicants) Barnardos Australia (Respondent)
Representation:	Solicitors: Ellis McLachlan (Applicants) Care Legal (Respondent)
File Number(s):	1510266
Publication restriction:	Section 64 Civil and Administrative Tribunal Act 2013 (NSW), and section 105 Children and Young Persons (Care and Protection) Act 1998 (NSW), restricting publication of information that will identify the applicants, non-professional witnesses, the child(ren), and any evidence given in the proceedings which is likely to identify any of those persons.

reasons for decision

1. The applicants who are known as ‘BWO’ and ‘BWP’ for the purposes of these proceedings, presently have the care of a very young female child since she was about 11 days old, under the Children and Young Persons (Care and Protection) Act 1998 (NSW), and the child was approximately 10 months of age at the time of the hearing. The child is now only just over 12 months old. The applicants wish to adopt the child.

2. The applicants filed their application on 18 May 2015 seeking an administrative review of a decision about which they were formally notified by letter dated 4 May 2015. The applicants were told by telephone on 30 April 2015 and advised in a letter dated 4 May 2015 of a decision “to not proceed further with your application to provide permanent care with a view to adoption for [the child], who is currently placed in a crisis placement with you through the Barnardos Temporary Family Care program (TFC), at [the location].”

3. The result of the decision to not proceed further with the assessment is that the child may be moved to a permanent carer and prospective adoptive parent who has been matched to her by Barnardos Australia. It is probable that the child has now formed a strong and secure attachment with the current carers, due to the child’s young age and length of time in their care, but that is a matter which will be adequately determined if the carers are able to be properly assessed by an appropriately qualified expert, and presumably only if they can proceed further down the path of the application process. That factor did not play any significant part in the assessment of the carers at this point of the process.

4. The letter dated 4 May 2015 continued:

“The Barnardos Find-a-Family program has made this decision in light of the information you provided in your expression of interest paperwork, which outlines your financial situation. Unfortunately your current financial position does not meet the Find-a-Family’s criteria for adoption purposes therefore we are unable to proceed further”

5. On 6 May 2015 the letter was read out to BWO over the telephone by a Manager at Barnardos because the letter dated 4 May 2015 had not been received: Exhibit R2 [31].

6. Principal Member Higgins heard a stay application on 21 May 2015 and orders were made on that date as follows:

1. The decision of the respondent is stayed pending the determination of the application unless order otherwise by the Tribunal;

2. Pursuant to section 55 (3) of the Administrative Decisions Review Act 1997 (NSW), the Tribunal is satisfied that it is necessary to deal with this application notwithstanding an internal review application has not been made.

7. An order was made at the commencement of the hearing of the proceedings under section 64 of the Civil and Administrative Tribunal Act 2013 (NSW), restricting publication of information which will identify the applicants, any children, non-professional witnesses, or evidence received in the Tribunal or in relation to the proceedings which is likely to identify those persons: see also BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126 at [3]; also to similar effect section 105 Children and Young Persons (Care and Protection) Act 1998 (NSW); cf., section 7 Court Suppression and Non-Publication Orders Act 2010 (NSW).

Relevant Legislative provisions

8. The Adoption Act 2000 (NSW) relevantly provides at section 193 as follows:

“Decisions that are administratively reviewable by Civil and Administrative Tribunal

(cf AC Act ss 14, 67A, AI Act s 36)

(1) Each of the following decisions when made by the relevant decision maker is an administratively reviewable decision for the purposes of section 28 (1) (a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993:

...

(i) a decision made under or for the purposes of this Act by the relevant decision maker that is a decision within a class of decisions prescribed by the regulations for the purposes of this section.

(2) Despite section 28 of the Community Services (Complaints, Reviews and Monitoring) Act 1993 , an application cannot be made to the Tribunal under that section until the decision concerned has been reviewed under section 192 (Internal review) of this Act.”

9. The Tribunal may consider a “reviewable decision”, which is defined as a decision of the relevant decision maker that may be the subject of an application to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) for the purposes of section 28(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW), or any decision made under or for the purposes of the Adoption Act by the relevant decision maker that is a decision within a class of decisions prescribed by the regulations for the purposes of this definition: section 189 Adoption Act.

10. It is provided by clause 72(1) (a) of the Adoption Regulation 2003 (NSW) (repealed) that a decision to decline to assess an applicant as suitable to adopt a child or a particular child is a reviewable decision under section 189 of the Adoption Act. It is also provided by clause 72 (1) (b) of the same regulation that a decision to decline to approve the applicant as suitable to adopt a child or a particular child is a reviewable decision under section 189 of the Adoption Act. This regulation was repealed from 1 September 2015 and replaced with the Adoption Regulation 2015 (NSW): Schedule 5 Clause 2(a) of the Subordinate Legislation Act 1989 (NSW).

11. The Interpretation Act 1987 (NSW) provides at section 30 as follows:

“Effect of amendment or repeal of Acts and statutory rules

(1) The amendment or repeal of an Act or statutory rule does not:

(a) revive anything not in force or existing at the time at which the amendment or repeal takes effect, or

(b) affect the previous operation of the Act or statutory rule or anything duly suffered, done or commenced under the Act or statutory rule, or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or

(d) affect any penalty incurred in respect of any offence arising under the Act or statutory rule, or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability or penalty,

and any such penalty may be imposed and enforced, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the Act or statutory rule had not been amended or repealed.

(2) Without limiting the effect of subsection (1), the amendment or repeal of an Act or statutory rule does not affect:

(a) the proof of any past act or thing, or

(b) any right, privilege, obligation or liability saved by the operation of the Act or statutory rule, or

(c) any amendment or validation made by the Act or statutory rule, or

(d) the operation of any savings or transitional provision contained in the Act or statutory rule.” (emphasis added).

12. The repeal of the 2003 regulation does not purport to affect any legal proceeding or application for review in this Tribunal in relation to the rights, privileges, obligations or liabilities accrued prior to the hearing of this review, and therefore the repealed provisions apply to this application for review: sections 5(2) and 30(1)(b),(c) and (e) of the Interpretation Act 1987; see Roads and Traffic Authority of New South Wales v Barrie Toepfer Earthmoving and Land Management Pty Ltd (No 7) [2014] NSWSC 1188, at [199]-[200], per Price J (as he then was); ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18, at [11], [12], and [27] per French CJ, Crennan, Kiefel and Keane JJ, and at [49]-[52] per Gageler J.

13. If the new regulations were to apply (contrary to the determination in the previous paragraph) there is provision in clause 125(1)(a) and 125(1)(b) of the Adoption Regulation 2015 to make the same decisions referred to in clause 72 of the repealed regulations, reviewable decisions under section 189 of the Adoption Act. Either way, the decision is one about which the Tribunal has review jurisdiction.

14. The Tribunal may also hear an administrative review of a decision 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: see AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028 at [20] per Justice Campbell. The decision under review is not one of those decisions.

15. In this matter it is an accepted fact that Barnardos Australia is the relevant decision maker. The decision under review is the decision to not proceed further in the assessment of the applicants’ application to provide permanent care with a view to adoption for the child based upon their financial circumstances. The decision is therefore, for the reasons set out previously, one which is described as administratively reviewable by the Tribunal by section 193 of the Adoption Act.

The evidence relied upon

16. The applicants relied upon the following documentation:

1. Affidavit of BWO-Exhibit A1;

2. Affidavit of BWP-Exhibit A2;

3. Application filed 18 May 2015-Exhibit A3;

4. Response to an affidavit of Ms Rogers-Exhibit A4;

5. Bank statements of the joint account for BWO and BWP- Exhibit A5.

17. The respondent relied upon the following documentation:

1. Section 58 Bundle filed 12 June 2015-Exhibit R1;

2. Affidavit of Ms Killen filed 12 June 2015-Exhibit R2;

3. Affidavit of Ms Rogers filed 12 June 2015-Exhibit R3;

4. Affidavit of Ms Rogers filed 17 July 2015-Exhibit R4;

5. Affidavit of Ms Killen filed 17 July 2015-Exhibit R5;

6. Submissions of the respondent filed 21 June 2015-Exhibit R6.

18. BWO, BWP, and Ms Killen all gave oral evidence and were cross-examined on 23 July 2015. BWO and BWP were impressive and credible witnesses. Ms Killen was not as impressive. The Tribunal accepts BWO and BWP as witnesses of truth.

19. The Tribunal also heard oral submissions from the representatives for both parties. The respondent provided written submissions: Exhibit R6. The Tribunal found the presentation of the matter by both parties and the submissions helpful and appropriate.

Assessment of Carers

20. The assessment of the suitability of persons to be approved to adopt children, and selection of persons who can adopt children, under the Adoption Act is governed by section 45 and the regulations made pursuant to that provision. The relevant decision maker is to have regard to the following matters when assessing the suitability of person to be approved to adopt, and in the selection of a person to adopt a child under the Adoption Act, as set out in clause 12 Adoption Regulation 2003 (repealed) and compare Part 3 and Part 4 especially clauses 45, 59 Adoption Regulation 2015:

1. The person’s health, including emotional, physical and mental health;

2. The person’s age and maturity;

3. The person’s skills and life experience, in relation to the person’s ability to undertake parenting tasks and attend to the specific needs of an adopted child;

4. The person’s capacity to provide a stable, secure and beneficial emotional and physical environment during the child’s upbringing until the child reaches social and emotional independence;

5. The person’s financial circumstances, in relation to the person’s capacity to adequately provide for the child’s needs;

6. The person’s capacity to support the maintenance of the child’s cultural identity and religious faith (if any);

7. The person’s appreciation of the importance of and capacity to facilitate:

1. contact with the child’s birth parents and family, and

2. exchange of information about the child with the child’s birth parents and family;

8. The general stability of the person’s character;

9. The stability and quality of the person’s relationship with his or her spouse (if any) and between the person, his or her spouse (if any) and other members of the person’s family and household;

10. Any information obtained or check conducted pursuant to the regulations: under clause 11A Adoption Regulation 2003 (repealed) or clause 44 Adoption Regulation 2015;

11. If the person has had the care of a child before the application, whether the person has shown an ability to provide a stable, secure and beneficial emotional and physical environment for the child, and;

12. Without limiting the previous subparagraph, if the person is, or at any time has been, an authorised carer-the person’s compliance with any applicable provisions of the Children and Young Persons (Care and Protection) Act 1998 and the regulations made under that Act.

21. The paramount consideration in any action or decision under any provision of the relevant legislation concerning a particular child is the best interests of the child, both in childhood and in later life: section 8(1)(a), AdoptionAct. The best interests of the child are determined by having regard to eleven mandated factors set out in section 8(2) Adoption Act.

22. The other principles of the Adoption Act to be applied are set out in section 8 (1) as follows:

“...

(b) adoption is to be regarded as a service for the child,

(c) no adult has a right to adopt the child,

(d) if the child is able to form his or her own views on a matter concerning his or her adoption, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child and the circumstances,

(e) the child’s given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved,

(e1) undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child’s welfare,

(f) if the child is Aboriginal-the Aboriginal child placement principles are to be applied,

(g) if the child is a Torres Strait Islander-the Torres Strait Islander child placement principles are to be applied.”

23. The relevant decision maker may decline to assess, or approve or approve subject to conditions, or decline to approve an applicant as suitable to adopt a child or a particular child: see clause 13 (1) Adoption Regulation 2003 (repealed); compare clause 46 (1) and clause 60 (1) Adoption Regulation 2015.

24. In this review application the relevant decision maker made an assessment adverse to the applicants on a limited basis. That basis was expressed to be solely a consideration of the applicants’ financial circumstances, that is, “in relation to the person’s capacity to adequately provide for the child’s needs”. The financial circumstances were considered to be inadequate to permit the assessment process to further progress.

25. In the review proceedings the respondent has raised some other matters which might affect the overall assessment of the applicants’ suitability to be assessed as long-term carers with a view to adoption. Those matters may be summarised as follows:

1. An alleged “lack of transparency in working with the TFC program” which includes an alleged breaching of Barnardos policy by contacting the Family and Community Services caseworker, which apparently occurred to find out information including on dual authorisation to provide care with the Department and an NGO such as Barnardos. The applicants did not discuss this with Barnardos. It is difficult to see how this was a significant matter;

2. The applicants sought information about applying to become carers with other designated agencies (also see (1) above);

3. The applicants were alleged to be critical towards the birth family and resistant to the aims of care plans developed during the Court process for the child in their care: Exhibit R3 [56]-[78]. However, the applicants explained that they in fact were critical of the length and process of the restoration process because of its observed effect upon the child. They were also positively praised for observing this in the child;

4. Referring to the first child placed in the care as “aggressive”, “violent”, “evil” and stating that they never liked her after she had left, and referring to the current child in their care as having tantrums at age 5 months was considered evidence of a fundamental lack of understanding of the impact of trauma on a child and their behaviour. The feedback that they gave immediately after the placement of that first child was that her behaviour improved and there were lots of positive changes during the time the child spent with them, and that the placement of that child changed the dynamics in the house in a positive way: Exhibit R1 page 177. Both applicants also acknowledged to the respondent that more training would be great: Exhibit R1 page 177. The applicants also specifically identified that they would like more training on childhood trauma and its effects: Exhibit R1 page 177. This was not a major issue incapable of resolution;

5. BWP was observed by a Barnardos caseworker to smack her biological child on or about 30 September 2014. Physical discipline including smacking is contrary to Barnardos policy and the Code of Conduct for Authorised Foster Relative and Kinship Carers. The carers were alleged to have stated they understood the policy but would discipline their child as they chose: Exhibit R1 page 182. This is not a objectively a disqualifying factor especially because the smacking was not a significant incident;

6. BWO stated that BWP relies upon her for parenting strategies because BWP was herself raised as a child in an abusive and dysfunctional environment: Exhibit R1 page180. The Tribunal is not inclined to view this as a negative feature if the applicants are willing to learn better parenting strategies than they received in their childhood;

7. The applicants have missed carer training funded by Barnardos for them on 2 occasions. The first was the trauma and child development carer training which they had forgotten. The second was training on Foetal Alcohol Syndrome, where the email informing them of that training did not express it to be mandatory and acknowledged that it may be difficult for them to attend: Exhibit R3 [93], [94]; Exhibit R1, pages 197-198. Both applicants also acknowledged to the respondent that more training would be great: Exhibit R1 page 177. The applicants also specifically identified that they would like more training on childhood trauma and its effects: Exhibit R1 page 177.

8. BWP has been diagnosed with a condition which renders her eligible for the Disability Support Pension and her symptoms include chronic back pain and headaches which are controlled by medication, and depression which is also treated by medication. There are also issues with her poor memory which is mitigated by writing things down and she has some difficulties with peripheral vision but is still able to drive: Exhibit R1 pages 158, 207. The assessment of this was included in the initial assessment for them to become authorised carers and can be promptly discounted because the issues that exist are managed by medication and there were considered to be “no significant issues or concerns... that would exclude them from being potential foster carers.” Exhibit R1 page 169. The medical report provided by BWP in support of her expression of interest to adopt, identified there is no medical reason why the applicant would not be able to adopt a child and in fact identified positive qualities in favour of adoption. Specifically, there was no medical or other reason proffered from the appropriately qualified treating medical practitioner why the applicant might not be able to care for an adopted child affectionately and materially until the child reaches an age of independence: Exhibit R1 page 207.

General principles and procedure in the Tribunal

26. The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Act: section 36 of the Civil and Administrative Tribunal Act.

27. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or Civil and Administrative Rules 2014 do not otherwise make provision. Additionally, the Tribunal is not bound by the rules of evidence (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 form: sections 38, and 67 of the Civil and Administrative Tribunal Act;Kostas v HIA Insurance Services Pty Limited [2010] HCA 32.

28. Procedural fairness and other aspects of natural justice, of course, are to apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436.

29. The Administrative and Equal Opportunity Division ("AEOD") of the Tribunal has its practice and procedure prescribed by reason of Schedule 3 of the Civil and Administrative Tribunal Act. Relevantly, a party to this category of proceeding is not entitled to be represented by a lawyer without leave of the Tribunal. A party aggrieved by a decision made in these proceedings may make an internal appeal: see sections 16, 17 and Schedule 3, clauses 9, 15, and 17 of the Civil and Administrative Tribunal Act. The Tribunal in this matter has permitted the parties to be represented by lawyers and is grateful for their assistance.

30. The Tribunal 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 Barnardos Australia 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].

31. The Tribunal must give effect to any relevant Government policy in force at the time the administratively reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case: section 64 Administrative Decisions Review Act 1997.

32. There is no requirement upon the applicant to show that the original decision maker’s decision was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88.

33. In BHY v Children’s Guardian [2015] NSWCATAD 91 at [56], the Tribunal referred to the submissions in that matter concerning the extent of the powers and functions of the Tribunal when hearing an application for review. The following matters arise from those references. It was submitted and it may be accepted that the Tribunal may in some circumstances itself be a source of evidence: ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 Qd R 1. However, subject to the rules of natural justice, the Tribunal may also act on matters within the members’ own knowledge: Carr v Simnovic (1980) 26 SASR 263; Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161; Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378; Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205. Subject to the rules of natural justice, the Tribunal may make its own enquiries, whether of a factual matter or scientific matter, where a member of the Tribunal has the requisite expertise: New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 at 211; Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 at 481. It also is not necessary, however, in this matter to decide whether and which of these aspects are part of the Tribunal’s functions and powers to arrive at the correct and preferable decision on the basis of the evidence and submissions relied upon by the parties.

34. The Tribunal which heard this matter was constituted by two General Members and a Senior Member: that is, M Anderson, Senior Member, M Bolt, General Member and R Royer, General Member. The experience and qualifications of each of the members is clearly something which is considered appropriate in the appointment process to bring to bear upon the matters which are heard by the Tribunal.

Consideration of the Evidence

35. BWO, who is aged 40, is identified in the records of the respondent as the primary carer for the child and is also BWP’s carer thereby receiving a carer payment for looking after BWP, who in turn receives a Disability Support Pension. The applicants have been in a relationship for approximately 8 years. BWP is aged almost 28. A statement of a factual matter in these reasons is a finding that the matter is proven to requisite standard of proof, that is, on the balance of probabilities: see section 140 Evidence Act 1995 (NSW).

36. It is also of significance that BWO has her own business which she has stated can be utilised to earn more income if she so desired and spend more time pursuing the income earning activity of that business. The business which is conducted by BWO is an entertainment business at which she is more than proficient according to the records which have been produced to the Tribunal. There does not appear to be a factual dispute that BWO could spend more time pursuing that income earning activity and consequently earn an income greater than the current income. BWO is also capable of earning an additional income from providing vocal coaching or singing/performance lessons. The respondent argues that it is required to look at current financial circumstances and not take into account any unutilised earning capacity.

37. BWP is the biological parent and carer (with the help of BWO) of a male child who is currently approximately 3 years of age and turning 4 years later this year. The applicants treat that child as their shared son who lives full-time in their household.

38. The applicants had placed in their care a female child aged 14 months on or about 12 February 2014, which date BWO believed was approximately 5 weeks after they completed their carer training conducted through Barnardos. This was expressed to be an emergency and immediate placement for a child who had been a victim of domestic violence in her family of origin. When that child was being transitioned to the care of her grandmother the opinions of BWO and BWP were sought by Barnardos as to the effect of that transition upon the child. The child was to transition to the care of her grandmother completely by the end of August 2014. After the child had left their care the applicants attended a debriefing with Kathleen Clark. No negative comments were made in relation to the child’s care or the competence of the applicants according to the applicants’ evidence to the Tribunal. The debriefing form in Exhibit R1 identifies that the experience for the applicants was overall a positive experience, although stressful at times, but they were critical of the transition period being too long for the child: Exhibit R1 pages175-178. In fact, they were subsequently very quickly offered the care of the female child currently in their care.

39. The child currently in the care of the applicants and who they now want to adopt, has been in their care since about 26 September 2014, was born suffering from neonatal abstinence syndrome (NAS) which meant that she was given medication (morphine) every 6 hours for 14 weeks.

40. In or around early January 2015 the applicants were informed that the child’s maternal grandparents had withdrawn their application for long-term care of the child in the Children’s Court proceedings. It was suggested by the applicant’s caseworker that if they wished to care for the child long-term they should get started on their paperwork: Exhibit A1 [196], [197].

41. The applicants contacted Ms Deanne Huntington who is an employee of Barnardos TFC and is the case manager for the child, on or about 12 January 2015. Ms Huntington informed Ms Helen Killen that the applicants wished to be assessed by Find A Family (FAF) as permanent carers with a view to adoption of the child in their care. The evidence is that FAF is an accredited agency with the ability to dually authorise carer applicants as permanent carers and prospective adoptive parents.

42. The applicants were interviewed and provided with an information session on 23 January 2015 by Ms Killen at their home, with concentration upon financial issues. It is asserted by the applicants that Ms Killen stated that the applicants needed to show they had a minimum of $300 surplus per week after all weekly staples were met: Exhibit A1 [202]. The whole visit took approximately 35 to 45 minutes. Ms Killen states that she informed the applicants that they would need to show a surplus of income over expenses of around $350 per week: Exhibit R2 [14], [26]. This amount was said by Ms Killen to be a reasonable amount for permanent carers and prospective adoptive applicants to have in order to meet the needs of a child placed in their care: Exhibit R2 [26]. The calculation of this amount is based upon the documents provided in the section 58 bundle of documents, that is, the:

1. NSW Government current age-related Statutory Care Allowance Rates 2013-2014, and

2. AMP.NATSEM Income and Wealth Report: Cost of Raising Children in Australia and

3. Suncorp Bank Cost of Kids Report 2012: Exhibit R2 [26].

43. On or about 18 March 2015 the applicants were informed that the maternal grandparents of the child had changed their minds and wanted to be assessed for the long-term care of the child, but that the Department of Family and Community Services were not recommending the maternal grandparents as long-term carers for the child: Exhibit A1 [211], [212]. Consequently, the applicants contacted the FAF program and advised that they wished to be considered as potential permanent carers with a view for adoption of the child. An email was received by Ms Killen to that effect on 8 April 2015: Exhibit R2 [19]. Ms Killen was informed that the Department of Family and Community Services were no longer proceeding with an assessment of the maternal grandmother with a view to kinship placement: Exhibit R2 [20].

44. On 19 April 2015 Ms Killen collected financial documents from the applicants: Exhibit A1 [220]. Ms Killen identifies that she received more than merely financial documents but that she had not received all of the documents required on that visit: Exhibit R2 [22].

45. On 21 April 2015 the Children’s Court at Parramatta made orders placing the child whose current and future care is the whole reason for this review, under the parental responsibility of the Minister until she attains the age of 18: Exhibit R1 page 17.

46. On 28 April 2015 a text message was received by the applicants requesting a home visit for 5 May 2015 to support them after learning that their application to care for the child long-term had been rejected by the Find A Family program: Exhibit A1 [224].

47. Ms Killen states that she telephoned the applicants on 30 April 2015 to explain the decision not to proceed further with the application on the basis of their financial circumstances: Exhibit R2 [26].

48. On 1 May 2015 BWO says that she received a phone call from Ms Killen advising that the application would not be further assessed based upon their financial circumstances. Further documents were offered to support the information provided in the financial statement by the applicants. Ms Killen was sympathetic to the applicants and advised BWO that she would prepare a formal letter of rejection so that internal review procedures may be commenced: Exhibit A1 [225]-[228].

49. Ms Killen states that she sent a letter to the applicants on 4 May 2015 advising them in writing that the decision had been made in respect of their application: Exhibit R2 [30].

50. At the meeting at the applicants’ home on 5 May 2015 Ms Huntington was asked to leave after voices were raised when Ms Huntington is alleged to have refused to allow BWO to further speak, and both the young children were exposed to verbal conflict, which caused the younger child to wake up from her sleep: Exhibit A1 [231]-[257]. The applicants subsequently made a complaint about Ms Huntington’s conduct, that is, yelling and exhibiting anger, which they did not feel was appropriately resolved.

51. On 12 May 2015 the applicants attended a meeting with Kathleen Clark and Ms Huntington at Barnardos’ office regarding a transition plan for the child to leave their care. At this meeting the applicants were informed that three families had been identified as possible matches, and a person had been selected. Ms Huntington is reported to have stated that she had met that person and her adoption caseworker “last week”: Exhibit A1 [229]-[303].

52. The evidence from Ms Killen is that on 21 May 2015 a “matching” meeting occurred to formally match the child with an authorised carer and approved prospective adoptive parent: Exhibit R5 [28]. The person who Ms Killen says was selected is the same one to whom BWO referred by name in her affidavit as the one Ms Huntington met.

The decision under review

53. Ms Killen records in her affidavit material the basis upon which she calculated the financial circumstances of the applicants. It is stated that on the basis of the financial information provided by the applicants earlier this year, their estimated weekly surplus income was, as originally calculated by Ms Killen, exactly $370.91: Exhibit R5 [16]. The updated financial information provided in July 2015, according to Ms Killen records an estimated weekly surplus of exactly $423.69: Exhibit R5 [16].

54. The tax-free carer allowance which the applicants have received for the child since 26 September 2014 is $420 per week. In addition to that amount, various contingency payments have been made to the applicants to assist in the financial support of the child.

55. The amount that was considered as reasonable by Ms Killen and the amount that she informed the applicants about was that they would need to show a surplus of income over expenses of around $350 per week: Exhibit R2 [14], [26]. The applicants showed that they had that level of surplus and on the later figures showed a surplus slightly in excess of the tax-free carer allowance.

56. The financial circumstances of applicants for adoption is a clearly relevant matter and one which the Supreme Court takes seriously and consequently unless the financial circumstances are established as satisfactory, it is unlikely that the Supreme Court will make an adoption order having regard to the child’s best interests as the paramount consideration: Application of PL, re TB and FB [2007] NSWSC 665 at [18]-[19], per Austin J. If no order will be made because there are inadequate financial resources then the rest of the assessment process is a hollow and fruitless exercise.

53. The amount of money required to raise children apparently varies depending upon the socio-economic demographic of the household in which the children are to live. The range identified in the submissions of the respondent (at [82] based upon Exhibit R1 pages 19 and 85) and calculated from research is from $320 per week to $488 per week. The statutory carer allowance for a child the same age as the child proposed to be adopted is $455 per fortnight: Exhibit R1 page 101. This amount is “topped up” by Barnardos with $385 per fortnight making the weekly amount $420, which it was rightly submitted by the respondent, falls between the two averages identified in the research figures quoted earlier in this paragraph, but at the slightly higher end. It is not known why the figure is not set at the highest level possible from the evidence before the Tribunal. The tax free allowance, according to the evidence, will not be paid if the child is adopted by the applicants: Exhibit R3 [116].

The correct and preferable decision

58. The financial circumstances of the applicants at the time of the decision and in July 2015 would appear to be sufficient to meet the criteria of a financial amount identified in the evidence and the submissions of the respondent.

59. There is no basis advanced for and no suggestion that there would be any suspending or cancelling the applicants’ authorisation as carers for the child. Indeed, in addition to that fact the child has remained in the care of the applicants due to the stay granted by the Tribunal.

60. BWO impressed as a forceful and intelligent person who has chosen to live a particular lifestyle. That lifestyle includes undertaking performances for which she is paid a substantial sum for what is called a “tribute” performance mimicking or adopting the persona of a popular female singer/performer. Those performances can require travel to venues some distance from the applicants’ current home. Clearly, the care of children is the number one priority for the applicants. The earning of income is necessary but does not preoccupy the lifestyle undertaken by the applicants. However, invoices which BWO renders for that work, which lasts usually about 2 hours at any particular location can be as much as $4,000 per performance, according to the documents provided to the Tribunal. The gross income from this activity in April 2015 to July 2015 period was $16,739.60: Exhibit A4. There are expenses to be deducted from those invoices depending upon the support required for the particular show. BWO has also worked professionally in different areas where she is valued for her ability to provide security services as a guard. It is clear from her evidence and the documentary support that her preference is to provide support to BWP and their family rather than the full-time pursuit of more income than they currently require.

61. There are numerous personal references which the applicants have provided to the Tribunal and which the respondent correctly acknowledges. None of the referees were required for cross-examination and their evidence is accepted by the Tribunal in so far as it is relevant to the issues to be decided. The applicants have a circle of friends and acquaintances who value their friendship and consider them to be good parents. The property in which they reside also has a chicken coop which they built and their continued residence there is not in issue. The applicants have sufficient income for discretionary expenditure on poker machine gambling and recently purchased a trailer to transport equipment for the tribute shows performed by BWO. The gambling is undertaken as recreation and the potential for it to become addictive is recognised by the applicants in documents contained in Exhibit R1 when the applicants have been assessed as authorised carers. There is no suggestion that this is a problem for the applicants at this time.

62. The applicants have modest means, by choice, and the Tribunal is satisfied that the calculation of their surplus financial resources is adequate for the process of assessment with a view to adoption to continue. Indeed, it would appear that the applicants have satisfied the requirements set out by Ms Killen in her evidence: Exhibit R5 [16]. The amount of surplus on those figures was exactly $370.91 and $423.69: Exhibit R5 [16]. Later figures produced by the applicants showed a surplus of $544.73: Exhibit A4. It was submitted by the respondent that on the additional evidence in Exhibit A4 the applicants are in a worse position with one calculation only showing a surplus of $255.15. Additionally, it was submitted by the respondent that the applicants would not have gambled if they wanted to show a greater financial surplus. The applicants are not accountants and the figures they have recorded are not outside the range of acceptable amounts. Indeed, the respondent utilised the figures provided to calculate the surplus without any real dispute as to their accuracy. The Tribunal accepts the accuracy of the estimates at various points in time. The respondent asserts that the liabilities are under estimated as are the costs of raising two children, but that is not the Tribunal’s assessment of the figures provided and tested by the respondent in evidence before the Tribunal. In cross examination it was clear that the amounts are close enough to provide a gauge on the applicants’ financial capacity to care for their own child and the child placed into their care. The applicants have gambled, but it does not appear that there is a problem with addiction at this time and the respondent has been aware of that matter in the documents it previously used to assess the applicants. In view of the overall problems associated with gambling it would be better if the applicants did not gamble, but they have apparently done so responsibly to date. The future is always uncertain even for people who are currently on very high incomes and apparently stable employment. If the applicants require further income due to unforeseen expenses or the vagaries of life, it is assessed that they have sufficient unutilised earning capacity to increase their joint pooled income to a level where they can continue to enjoy the benefits of their lifestyle and adequately support the children in their care.

63. The respondent also acknowledges that the applicants have adequately met the child’s needs whilst she has been in their care and that she has progressed well in her development.

64. The applicants have the care of BWP’s biological child and have to date adequately provided for his care, and are likely to continue to do so into the future.

65. The respondent does not take issue with the fact that the applicants are concerned about and care deeply for the child: strongly enough to want to keep her as part of their family if that is possible and in her best interests.

Conclusion

66. The applicants have sufficient means and the Tribunal is satisfied on all the evidence placed before the Tribunal that the calculation of their surplus financial resources (including their assets of approximately $82,680 set out in Exhibit A4) is adequate for the process of assessment with a view to adoption to continue. In the review proceedings the respondent has raised some other matters which might affect the overall assessment of the applicants’ suitability to be assessed as long-term carers with a view to adoption. Those matters have been earlier summarised in these reasons. The Tribunal does not consider that those matters affect the suitability of the applicants to an extent that there is no utility in the assessment proceeding further and to finality. The final outcome of that assessment may mean that the applicants are not considered the best match for the child in their care. That is not the decision currently for review before the Tribunal.

67. On the balance of probabilities, having regard to all the material before the Tribunal and the applicable law, it is in the best interests and promotes the safety, welfare and wellbeing of the child that the correct and preferable decision under section 63 Administrative Decisions Review Act 1997 is to set aside the decision and substitute the Tribunal’s own decision for that of the relevant decision-maker.

68. The Tribunal therefore orders:

1. That the decision made on or about 28 April 2015 and notified to the applicants by letter dated 4 May 2015 to not proceed further with their application to provide permanent care with a view to adoption for the child currently placed in a crisis placement with the applicants through the Barnardos Temporary Family Care program on the basis of their financial circumstances in relation to the applicants’ capacity to adequately provide for the child’s needs, is set aside.

2. The respondent is to proceed further with the assessment application of the applicants to provide permanent care with a view to adoption for the child currently placed in a crisis placement with the applicants through the Barnardos Temporary Family Care program on the basis that the requirement for the financial circumstances in relation to the applicants’ capacity to adequately provide for the child’s needs is satisfied.

3. It is noted that by reason of the Order made on 21 May 2015 pursuant to section 55 (3) of the Administrative Decisions Review Act 1997 (NSW), the Tribunal is satisfied that it is necessary to deal with this application notwithstanding an internal review application has not been made.

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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: 21 October 2015