BXS v Department of Family and Community Services

Case •

[2015] NSWCATAD 269

•

23 December 2015

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: BXS v Department of Family and Community Services [2015] NSWCATAD 269
Hearing dates:25 September 2015, 9 December 2015
Date of orders: 23 December 2015
Decision date: 23 December 2015
Jurisdiction:Administrative and Equal Opportunity Division
Before: J Anderson - Senior Member
Prof. P Foreman - General Member
Decision:

(1) The decision of the Respondent to remove from the Applicant the responsibility for the daily care and control of the children the subject of this application is affirmed.

(2) Pursuant to section 32(2) of the Community Services (Complaints, Reviews and Monitoring) Act 1993, the Tribunal recommends:
(a) That the Respondent develop a plan for the introduction of unsupervised contact visits between the Applicant, Miss A and the subject children, to commence at a date and in circumstances determined by an independent health professional (e.g. social worker or psychologist);
(b) That the unsupervised contact include the Applicant’s invitation to, and attendance at, the children’s schooling and extra-curricular events.
(c) That the Respondent arrange for an appropriately qualified family law mediator to provide mediation sessions between the Applicant and the children’s’ current carers, with a view to assisting them to reach agreement on future contact and communication with the children and each other.
Catchwords: ADMINISTRATIVE LAW – review under section 63 Administrative Decisions Review Act 1997 – decision under section 245 Children and Young Persons (Care and Protection) Act 1998 (NSW) to remove children from authorised carer – where carer is grandmother of children – parenting capacity and attachment – children have complex behaviours – stability of current placement - what is correct and preferable decision having regard to the material before Tribunal as at date of hearing –decision of Respondent affirmed – recommendations made.
Legislation Cited: 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)
Children and Young Persons (Care and Protection) Regulation 2012
Category:Principal judgment
Parties: BXS (Applicant)
Department of Family and Community Services (Respondent)
Representation: Hosking Legal(Applicant)
Ellis McLachlan Solicitors (Respondent)
File Number(s):1510332
Publication restriction:Section 64 Civil and Administrative Tribunal Act 2013, restricting publication of information that will identify the Applicant, the children, witnesses and any evidence given in the proceedings which is likely to identify any of those persons.

REASONS FOR DECISION

Introduction

  1. The Applicant, BXS, seeks review of a decision of the Respondent, the Department of Family and Community Services (DFCS), made under the Children and Young Persons (Care and Protection) Act 1998 (the Care Act) on 21 April 2015 to remove from her day-to-day care three of the Applicant’s grandchildren: eleven year old twin girls Miss K and Miss C, and eight year old boy Master T (“the children”),

  2. On 23 April 2015, the Respondent notified the Applicant in writing of its decision to remove the children from the Applicant’ care.

  3. On 4 May 2015, the Applicant sought internal review of the Respondent’s decision.

  4. On 11 June 2015, the Applicant lodged an application with the Tribunal seeking review of the Respondent’s decision.

  5. On 23 June 2015, the Respondent notified the Applicant of the outcome of the internal review.

  6. On 16 July 2015, the Tribunal held a Directions Hearing during which orders were made for the appointment of a Guardian Ad Litem and for the filing and serving of evidence.

  7. On 6 August 2015, at a further Directions Hearing, a number of orders were made including that in the event the parties agree to obtain an independent expert psychological report in relation to the Applicant’s parenting ability and attachment of the children, such report is to be filed by 18 August 2015.

  8. On 10 September 2015, at a further Directions Hearing, a hearing date of 25 September 2015 was confirmed.

  9. On 25 September 2015, the matter was listed for hearing. Various documents were tendered into evidence. However, a psychologist’s report had not been obtained, and the matter was adjourned by consent to 9 December 2015, with various directions relating to the nature and scope of the psychologist’s report.

  10. On 9 December 2015, the psychologist gave evidence and was cross-examined. The parties relied upon the affidavit evidence of the Applicant and officers of the Respondent. The hearing concluded and the Tribunal reserved its decision pending additional written submissions by the parties, to be filed and served by 16 December 2015. In light of the nature of the application and in the interests of the subject children, it was accepted by the Tribunal and the parties that any further delay should be avoided.

Legislative framework

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

  2. In this matter it is accepted that the Respondent is the relevant decision maker. The decision is one which is described by section 245 (1)(c) of the Children and Young Persons (Care and Protection) Act (the “Care Act”), that is, “a decision of the relevant decision-maker to grant to, or to remove from, an authorised carer the responsibility for the daily care and control of the child or young person”.

  3. The Care Act and the Children and Young Person (Care and Protection) Regulation 2012 (the Regulation) make provision for out-of-home care. It is accepted that the Respondent is a “designated agency” and the Applicant is an “authorised carer” pursuant to sections 139 and 137 respectively of the Care Act. The Tribunal notes that as at the date of the Tribunal hearing, the Applicant’s authorisation was being considered by the Reportable Conduct Unit of the Respondent, however, no formal determination had been made.

  4. Section 8 of the Care Act sets out the Act’s objects:

(a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and

(a1) recognition that the primary means of providing for the safety, welfare and well-being of children and young persons is by providing them with long-term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles, and

(b) that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and

(c) that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment.

  1. Section 9 of the Care Act sets out the principles for administration of the 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) Wherever a child or young person is able to form his or her own views on a matter concerning his or her safety, welfare and well-being, 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 or young person and the circumstances.

(b) In all actions and decisions made under this Act (whether by legal or administrative process) that significantly affect a child or young person, account must be taken of the culture, disability, language, religion and sexuality of the child or young person and, if relevant, those with parental responsibility for the child or young person.

(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) If a child or young person is temporarily or permanently deprived of his or her family environment, or cannot be allowed to remain in that environment in his or her own best interests, the child or young person is entitled to special protection and assistance from the State, and his or her name, identity, language, cultural and religious ties should, as far as possible, be preserved.

(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.

  1. The conditions of authorisation are outlined in clause 34 of the Regulation, which include a requirement that the authorised carer must comply with the Code of Conduct for authorised carers. Whilst not tendered into evidence by either party, the Tribunal is aware of the provisions of the Code of Conduct including as follows:

Authorised carers are expected to:

General

Follow the lawful policies, procedures and guidelines brought to your attention by the designated agency

…

…

Care Environment

….

…

Provide a care environment where the child or young person is not exposed to physical, sexual, psychological or verbal abuse, ill treatment or neglect.

…

…

Identity, emotional and social development

Support the child or young person to feel safe and develop a sense of security

…

…

Wellbeing, health and education

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.

…

  1. The Code of Conduct also provides that authorised carers are to be respected for their opinion and be consulted on decisions about the care of the child in their care, and support and training on ways to encourage positive behaviour in children and how to respond appropriately to challenging behaviours.

  2. In addition, clause 41 of the Regulation provides:

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.

Role of Tribunal

  1. The role of the Tribunal in hearing and determining the 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. Administrative Decisions Review Act 1997, s 63(1)

  2. The Tribunal sits in the shoes of the Respondent and considers the matter afresh as at the time of the hearing.

  3. 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. Civil and Administrative Tribunal Act 2013, s 36.

  4. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or the Civil and Administrative Rules 2014 do not otherwise make provision. The Tribunal is not bound by the rules of evidence, except in relation to privileged disclosures (Evidence Act 1995, s 128) and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: Civil and Administrative Tribunal Act, s38 and s 67.

  5. Procedural fairness and other aspects of natural justice, of course, 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 Balencio (1987) 8 NSWLR 436.

The evidence

  1. The Applicant tendered into evidence the following material:

  1. Administrative Review Application dated 11 June 2015, enclosing letter from Shirley Tate, Family & community Services dated 23 April 2015 and Email from Julie Peters to Ms Tate sent 4 May 2015.

  2. Affidavit of Julie Peters sworn on 3 August 2015, annexing Annexures A-F;

  3. Affidavit of Julie Peters sworn on 12 August 2015, annexing Annexures A-D;

  4. Affidavit of Julie Peters sworn on 22 September 2015.

  1. The Respondent tendered into evidence the following material:

  1. Chronology of events

  2. Affidavit of Kim McCormack sworn on 3 August 2015, annexing Annexures A-N;

  3. Three affidavits of Benjamin Wells sworn on 20 August 2015, 17 September 2015 and 3 December 2015 respectively;

  4. A bundle of documents received by the Tribunal on 21 July 2015, containing various records held by the Respondent; and

  5. A report of Ms Natalie Potter, Clinical Psychologist, dated 12 November 2015.

  1. In addition, the Tribunal was provided with two affidavits of Mr Stephen Stuart, the Guardian Ad Litem.

Factual matters

  1. At the time of the Respondent’s decision on 21 April 2015 to remove three children from her care, the Applicant was the authorised carer of four children, each of whom was, and continues to be, under the parental responsibility of the Minister: Miss A, who is 15 years old, twin girls Miss C and Miss K, who are 11 years old, and Master T, who is 8 years old. All children are the grandchildren of the Applicant. The children’s biological mother, Ms KP, is the daughter of the Applicant. The three younger children have the same biological father, who, like Miss A’s biological father, is of Aboriginal background. Since the birth of Master T, Ms KP has given birth to two more children, both of whom have also been removed by the Respondent and placed in alternate care.

  2. The Applicant is a 57 year old single woman, who, at the time of the Tribunal hearing, was living in her own home with Miss A. The Applicant’s parents are both deceased, with her mother passing away in June 2012. The Applicant’s partner committed suicide in 2009. Prior to their removal, Miss K, Miss C and Master T had lived in the same home as the Applicant for all of their lives.

  3. On 22 August 2011, all four children were formally placed with the Applicant under a Temporary Care Arrangement following an assault of Miss A by her mother and her mother’s then partner.

  4. On 19 January 2012 a Care Application was filed and interim parental responsibility to the Minister was granted by the Children’s Court, and the children remained in the placement with the Applicant.

  5. On 22 March 2012, a placement assessment was completed by Ms Bridget Gurton, Psychologist, who reported that it was not possible to recommend approval of the Applicant as a suitable long-term carer for all of the children together. Ms Gurton recommended that intensive supports be implemented for an initial period of six months, and a comprehensive needs assessment of each child conducted as a matter of priority. Ms Gurton also recommended, inter alia, that review and monitoring of the placement occur on a regular basis during the six months to ensure the safety and wellbeing of the children, and that the Applicant be provided with regular respite from all of the children and engage in counselling to address her own grief issues. Ms Gurton indicated that in the event the comprehensive needs assessment continued to identify risks in six months despite supports, she recommended that the children be moved to alternate care.

  6. On 5 March 2012, a referral was made to a local Intensive Family Preservation Service, which was engaged with the family until 16 July 2012, and then ceased.

  7. Care Plans were developed for each of the children pursuant to section 78 of the Care Act. At that time, the Director-General of the Department was not willing to recommend parental responsibility of the children be allocated to the Applicant due to concerns raised in the placement assessment about the needs of the children and the level of support required by the Applicant to meet those needs. The Director-General was also concerned that the Applicant would not support the children being identified as Aboriginal, and nurture their cultural needs. However, the Care Plans considered that the children remaining in the placement with the Applicant would provide them with continuity and familiarity in schooling, relationships and family.

  8. On 31 August 2012, a Final Order was made by the Children’s Court placing all four children in the parental responsibility of the Minister until they attain the age of 18 years. The children remained placed with the Applicant, and the Applicant supervised the contact between Ms KP and all of the children.

  9. Issues in relation to the children’s placement with the Applicant

  10. During the period of the children’s placement with the Applicant, the Respondent received eight Risk of Significant Harm (ROSH) reports and six Non-Risk of Significant Harm (non-ROSH) reports in relation to the children. In addition, other concerns were raised, which, while not necessarily forming the basis of formal reports, are relevant to the issues regarding the children’s placement with the Applicant.

  1. In 2011, concerns were raised as follows:

  • During contact by the children’s mother in the Applicant’s home, certain persons were alleged to be present, namely, the father of the child and an ex-partner, in respect of whom Apprehended Violence Orders were in place.

  • In the context of a request to collect Master T from child care following a behavioural incident, the Applicant is alleged to have made statements, including that she had “had enough” (of caring for the child).

  1. In 2012, concerns were raised as follows:

  • The Applicant contacted Police after Miss A threatened self-harm using a knife. The Applicant was reported to be highly stressed, indicating difficulties with coping and a suggestion that foster care may be appropriate.

  • Miss A contacted Police, indicating the Applicant was upset and crying as a result of the children’s behaviours.

  • Master T was reported to have engaged in sexualised behaviour with a relative.

  • Miss A was reported to have been discussing sex with the younger children.

  • The Applicant is reported to have smacked the children with a spatula and threatened to send them away to live with strangers.

  • The Applicant is alleged to have told the children that it will be their fault if she dies.

  • The children had allegedly said that Miss A was the Applicant’s favourite and they were not loved.

[Reports were investigated by officers of the Respondent, and safety and risk assessments conducted with respect to the children. The risk of harm concerns were substantiated; and subsequent support was provided to the Applicant by the Whole of Family Team and Coral Tree Service as detailed later in these Reasons. In addition, the Applicant was provided with a new copy of the Carer Code of Conduct.]

  1. In 2013, further concerns were raised:

  • Miss C disclosed she had been struck by the Applicant with an egg flip/spatula, resulting in a minor injury;

  • Miss C had recorded a video in which she stated the Applicant had hurt her eye;

  • Master T had indicated that the Applicant had hit him, resulting in bleeding;

  • The Applicant had thrown a hair brush, hitting Miss C and causing minor injury;

  • Miss A had allegedly been physically aggressive towards Miss C and Miss K.

  • The Applicant had instructed the children not to disclose things as they would be removed from her care;

  • In 2014, concerns were raised as follows:

  • Miss C and Miss K had allegedly received pornographic images via social media.

  • Miss A had allegedly hit Miss K, causing minor injury.

  1. Mr Ben Wells, an officer of the Respondent, was a case worker, and from 1 December 2014, had case management responsibility for the children in the Applicant’s care. When visiting the Applicant’s home in relation to the concerns about Miss A’s actions to Miss K, Mr Wells engaged in discussion with the Applicant during which the Applicant stated she had had enough of Miss A and wanted her gone. The Applicant is also alleged to have disclosed that Miss A had pushed her over. Miss A is alleged to have told Mr Wells that the Applicant had pushed her, pulled her hair, and told her she was like her mother. Miss A had also said that she was scared of the Applicant and what she might do.

  2. In addition to the specific concerns detailed above, there were also general issues relating to the children, including the behaviours of Master T, which led to his expulsion from two day-care centres in 2011, and a number of suspensions from school, resulting in at one point being able to attend school for only two hours per day. In 2013, Master T was diagnosed with oppositional defiance disorder and post-traumatic stress disorder.

  3. On 12 August 2014, while at school, Master T had reportedly assaulted a teacher and thrown furniture around a room. The Applicant was asked to attend the school, during which she is reported to have said that she had had enough of Master T’s behaviour and of the (other) children and wanted to kill herself. The Applicant also reportedly said to Mr Wells that things at home were “shit”, the children were not doing as they were told, and that she had had enough and could not take care of the children anymore.

  4. In February and March 2015, a tutor engaged by the Respondent to assist Master T with his learning issues, expressed concerns about Master T’s behaviours which included swearing at staff and refusing to do work. On 4 March 2015, Master A physically assaulted a student and several staff members. The following week, the tutor reported that she had not ever seen things so consistently bad for Master T. The tutor also referred to a discussion with the Applicant where the Applicant had said that she couldn’t do it anymore (care for the children) and was planning on advising Mr Wells to remove the children.

  5. In addition, during this period, there was evidence of Miss A refusing to go to school and spending extended periods of time in her bedroom with the door locked. The Applicant acknowledges that on an occasion Miss A had barricaded herself into her room, and she (the Applicant) had then not seen her for a number of weeks. [1]

    1. Exhibit A2, p 4

  6. During the morning of 21 April 2015, the Applicant telephoned Mr Wells, leaving two messages. Subsequently, Mr Wells spoke to the Applicant and also attended the Applicant’s home. Mr Wells was advised by the Applicant that Miss A had been refusing to go to school and expressing a wish to be home-schooled. An altercation had ensued, in which Miss A had pushed, hit and bit the Applicant, and locked herself in her bedroom. The Applicant said she intended to take Miss A’s bedroom door off its hinges, however, this was not possible. Instead, the Applicant obtained a hammer from the home and proceeded to smash the bedroom door, resulting in a hole of approximately 100cm x 40cm. Miss A was located in her bedroom, having placed a number of pieces of furniture against the door in an effort to barricade herself in. Miss A, whilst visibly upset, subsequently indicated to Mr Wells that she was not hurt and that she did not wish to leave the home.

  7. The younger three children were not present during the incident, having left the home to go to school that morning. According to Mr Wells, during his telephone conversation with the Applicant, and again upon his arrival at her home, the Applicant told Mr Wells that she had had enough of the children; she wanted them all to go; and that she could not do it anymore.

  8. Following the incident, Mr Wells reported the incident to other officers of the Respondent: Ms Kim McCormack, Casework Manager, and Ms Shirley Tate, then the Manager of Client Services. A decision was made to immediately remove the children from the Applicant’s care. Miss K, Miss C were placed with their regular respite carers, Mr and Mrs JL. Master T was placed initially with the Applicant’s son and son’s partner, who had provided respite care to Master T on 2 previous occasions. However, this emergency placement could not be sustained as the Applicant’s son and his partner were not able to continue to provide the care to Master T. As a result, Master T was placed with respite carers, Ms SL and her partner, Mr MB. Miss A refused to leave the Applicant’s home, stating she felt safe and would not go elsewhere under any circumstances.

  9. By letter dated 24 April 2015, Ms Tate formally advised the Applicant of the decision to remove Miss K, Miss C and Master T. In her letter, Ms Tate provided the following reasons for the decision:

  • The incident on 21 April 2015, including the conflict between the Applicant and Miss A, the smashing of Miss A’s bedroom door and the Applicant’s statements that she could no longer provide care and wanted Miss A removed from the home.

  • The history of the Applicant’s conflict with Miss A, the Applicant’s tendency to blame Miss A for her (the Applicant’s) behaviour and problems within the home; and the consequence that Miss A was severely withdrawn, locking herself in her room for extended periods.

  • The exposure of the ongoing conflict between the Applicant and Miss A on the other children in the home, which was particularly concerning in light of their trauma history.

  • The existence of the Applicant’s problematic behaviour management practices to all the children, which, despite extensive casework, were apparently increasing in frequency and intensity.

  • The Applicant’s limited insight into the impact of the children’s trauma as a result of being in their mother’s care; and the Applicant’s continued support of her daughter to the detriment of the children in her care.

  • As a result of the Applicant and Miss A’s increasing violence towards each other, the children were deemed to be at risk of immediate danger and serious harm. The Applicant’s emotional and psychological functioning was considered to impair her ability to protect and meet the needs of the children in her care.

  1. The decision to remove Miss K, Miss C and Master T from the Applicant’s care is the decision under review by the Tribunal.

  2. In relation to the incident on 21 April 2015, the Applicant states her actions in hitting the bedroom door were taken out of a concern for Miss A’s safety and in the context of “an overwhelming feeling of something like fear” and panic. She states that her sighting of Miss A in her bedroom, apparently unharmed, provided immediate relief. The Applicant denies that she made certain statements to Mr Wells (including that she had had enough and wanted the children gone), she disputes his version of the incident, and is critical of his actions in the period following the incident.

Matters since the decision to remove Miss K, Miss C and Master T

  1. A Secondary Assessment commenced by Mr Wells on 21 April 2015 and concluded on 4 June 2015, assessed the risk of both immediate and ongoing harm to the children as “high” in the case of Miss A, and “very high” in the case of Miss K, Miss C and Master T.

  2. Following the removal of the children on 21 April 2015, case management responsibilities for Master T have remained with the Respondent. On 1 July 2015, case management responsibilities of Miss K and Miss C were transferred to the South Coast Medical Services Aboriginal Corporation out of home care services (AMS).

  3. On 6 September 2015, as a result of a breakdown in the placement, Miss K and Miss C were moved from the home of Mr and Mrs JL. It is reported that Miss K and Miss C were verbally abusive towards Mr and Mrs JL, had thrown coat hangers at them, and had shouted out loudly “Stop hitting me” when the carer/s was not near them. In addition, on occasions, the girls had locked Mr and Mrs JL out of their house.

  4. Mrs JL developed depressive symptoms and requested that Miss K and Miss C be moved from the placement. On 6 September 2015, Miss K and Miss C were placed with Ms SL and Mr MB, (with whom Master T had been placed). Ms SL is an aunt of the children and a half-sister of the children’s biological mother. Mr SL and Mr MB have five children between them, ranging in age from 1 to 12 years, including it appears, a child with a disability. Ms SL and Mr MB have since been approved by the Respondent to be the authorised carer of Master T and the provisionally authorised carer of Miss K and Miss C. In order to care for the children, Ms SL has deferred her studies in social work and Mr MB has taken leave from his employment. They have indicated a willingness to provide care on a long-term basis for the children.

  5. While in their care, Miss K, Miss C and Master T have continued to attend their current schools and extra-curricular activities, and have had positive reports from their schools. They are also being provided with support in relation to their Aboriginal culture and identity. There have been no risk of harm reports since the children have been in Ms SL and Mr MB’s care, and the Respondent is satisfied with the appropriateness of the care being provided such that authorisation (in the case of the care of Master T) and provisional authorisation (in the case of the care of Miss K and Miss C) has been given.

  6. All three children continue to have ongoing therapeutic counselling, and attend therapeutic camps during the school holidays. Master T has been attending sessions with a psychologist over recent months after being referred by his GP. Initially, Ms SL and MB reported issues with management, aggressive/violent behaviour, low self-esteem and suicidal ideation. The psychologist reports that “as (Master T) has begun to feel more stable in his new family environment, and his behaviour is managed consistently and with predictability, the responses are improving, and the aggression is occurring less often. However, given the complexity of (Master T’s) history, it is expected that this process will be ongoing”. [2]

    2. Exhibit R7, Annexure B

  7. The Applicant maintains monthly supervised contact with the children, which occurs at the offices of the Respondent or in a local park. The Applicant sees Miss K and Miss C together, and Master T separately. There is also supervised contact between the children and their mother and between the children and Miss A. Telephone contact between the Applicant and Master T was ceased after the Respondent determined that the issues being raised by the Application during the course of conversation were inappropriate and would be detrimental to the ability to Master T to settle into the placement.

  8. Supervised contact has progressed well with no issues being reported and the children have been happy to see the Applicant, Miss A and their mother. However, there have been reports by Ms SL, Mr Wells and the AMS social worker that the children, and in particular Master T, have become highly anxious prior to contact visits with the Applicant, and have displayed disruptive behaviours after such visits.

  9. The Applicant is of the view that Ms SL “was always financially motivated to care and that she is responsible for making false allegations to the FACS helpline over the years”. [3] The Applicant states that since being removed from her care, the children have not continued with a number of the school-based and extra-curricular activities in which the children were actively involved while in the Applicant’s care. The Applicant is also concerned that Master T is being prescribed Risperidone medication, and she has observed in Master T weight-gain, a known side effect of the medication. The Applicant is also concerned that Master T may not be receiving treatment for Pyrolle, a condition with which he was diagnosed while in her care. The Applicant claims that Master T’s current carer allows him to spend an excessive amount of time playing computer games.

    3. Exhibit A2, p 6

  10. Since the children’s removal, Miss A has been receiving support from Mission Australia. According to Mr Wells, Miss A has not engaged in regular school attendance or therapeutic support services in spite of referrals being made. The Applicant states that the removal of the children has upset Miss A terribly, who the Applicant states is now fearful of leaving the home lest she be removed by the Respondent, with the result that Miss A has hardly attended school.

Respite and support

  1. From 2012, respite was provided to the children by Ms SL. In addition, Miss K and Miss C attended regular respite with Mr and Mrs JL in the 15 months prior to the children’s removal, including overnight care every second weekend, for a week at a time on two occasions, and single days or nights at the request of the Applicant. In addition, all the children (including Master T when he reached the appropriate age) attended school holiday respite camps. Respite was also provided in December 2014 when the Applicant was required to have a surgical procedure in hospital, and in January 2015 when she travelled with Miss A to Queensland.

  2. In April 2013, the children underwent psychological assessments, following which a support provider, the Whole of Family Team, was engaged with the Applicant and the children from about June to October 2013. There is dispute about the nature and extent of the support provided by the service. The Applicant states that it was merely a gardening service that was offered, and the Respondent’s records indicate that the service ended, apparently prematurely, as a result of the criteria for service provision not being met.

  3. A referral was subsequently made to the Coral Tree Family Service, in respect of which the Applicant and children attended an admission from 28 July to 1 August 2014. During the admission, various health professionals, including nurses, social workers and psychologists worked with the Applicant and the children. The Applicant attended three parenting sessions and various family sessions. Recommendations following the admission included that the Applicant be provided with continued professional support and respite at least one day a week on the basis that “(f)our children with histories of attachment disruptions would be a challenge to a foster parent with professional training” [4] . It was also recommended that the Applicant receive support to assist her to quarantine her own emotions and distress from the children, and for steps to be taken to address the Applicant’s health concerns, especially her hearing problems which were considered to “pose a massive barrier” for the Applicant to be able to understand the children’s needs.

    4. Exhibit R5, p222

  4. In addition to the Whole of Family Team and The Coral Tree Service, the Applicant has completed several courses aimed at developing parenting capacity, namely, the Positive Parenting Program (PPP), Reparative Parenting Program (RPP), and the Circle of Security Program. She has also completed courses on the behaviour management of children. [5]

    5. Exhibit R6, pp 28 & 31

  5. The Applicant states that during the period she provided care to the children she was not provided with sufficient respite and support, despite continuous and consistent recommendations that it occur. In particular, the Applicant states that the Respondent failed to provide her with:

  • Regular respite from all the children at the same time;

  • An intensive support service to assist her in the home;

  • Weekly in-home respite, and

  • Individual counselling to address her grief issues.

  1. During her interview with Ms Potter, Clinical Psychologist, the Applicant indicated that her reluctance to send the children to respite regularly was that Ms SL was the only respite option available and each time the children attended respite with her, a report would be made to the Respondent.

Additional matters raised by the Applicant

  1. The Applicant concedes that she previously used physical discipline on the children, but she had ceased such practices a long time ago following directions from the Respondent.

  2. The Applicant denies that she led the children to believe their actions would cause her ill-health or death. Rather, she has explained to the children that stress can contribute to a stroke (the cause of her mother’s death), and because stroke runs in the family, the children needed to calm down.

  3. The Applicant denies she has discouraged the children from identifying with their Aboriginal cultural background. In her review by Ms Potter, Psychologist, the Applicant said that the children’s father once denied to her that he was Aboriginal, and she has not had any further discussion with him or the children about this. She is of the view that the children should be invited, rather than directed, to participate in Aboriginal cultural issues. She said the children also have European and American Indian heritage and she would like them to explore all of those cultures, not solely Aboriginal culture.

  4. The Applicant also denies the claim that she does not protect the children from their mother, indicating that when her daughter visits the home, her daughter has been well and has not harmed the children. Moreover, the Applicant states that it was she (the Applicant) who called the Police to report the assault on Miss A, a causative factor in Miss A’s removal from her mother.

  1. The Applicant also states that she had initiated a number of support services for her and for the children, with certain services concluding for reasons including the departure of staff, the children’s reluctance, and Master T’s school suspensions taking up significant amounts of time.

  2. In addition to her assertion that the Respondent failed to provide her with recommended respite and support, the Applicant is also critical of other actions taken by the Respondent. The Applicant alleges that Mr Wells acted inappropriately during the incident on 21 April 2015, including the circumstances surrounding his entry into the bedroom of Miss A, and his communications with her.

  3. The Applicant states that she has been able to raise her grandchildren over many years despite their high needs, and has provided good and loving care. She admits to struggling with her own grief issues and also with the behaviours of Miss A and Master T, which she suggests would pose challenges for any carer. She states that she understands that the high needs of the children relate to the violence and neglect they witnessed due to their mother’s poor relationship choices. The Applicant states she is learning to cope better with her grief and has attended counselling for it, including both prior to and since the children’s removal.

  4. The Applicant provided a number of references in support of her application, including from her son, her General Practitioner, the President of the Calisthenics Club attended by Miss K and Miss C, and the Applicant’s Case Manager with a grandparent support program. She also provided various awards and (incomplete) school reports for Miss K and Miss C for the second half of 2014, which refer to positive learning and behaviours during that period. A reference purportedly by the children’s father was subsequently withdrawn after it was discovered that it was not in fact authored and signed by the children’s father, but rather apparently by the Applicant’s daughter without his consent.

Psychological evidence

  1. Ms Natalie Potter, Clinical Psychologist, performed an assessment of, inter alia, the Applicant’s parenting capacity and the attachment of the children to the Applicant. Her evidence comprised a 72-page written report. She was also cross-examined extensively by counsel for the Applicant.

  2. Despite the directions made by the Tribunal on 25 September 2015, it is evident that a large number of materials outside of that agreed upon by the parties was in fact provided to Ms Potter. The additional material consisted of:

  1. A “file review” from the records of the Respondent, consisting of a 28 page casework chronology for the period 6 January 2000 to 29 July 2015; and

  2. The Affidavit of the Guardian ad Litem, Mr Stephen Stuart, dated 5 September 2015.

  1. This was indeed unfortunate, especially as considerable care had been taken to determine the scope and basis of the assessment and report. Moreover, it was apparent from Ms Potter’s written report that she had used and referred to the file review rather than the chronology agreed previously by the parties. In addition, there is no indication as to the author/s of the entries in the file review, and the context in which they were made.

  2. However, notwithstanding those facts, the Tribunal finds that Ms Potter’s findings and opinions are unlikely to have been markedly affected by her consideration of that material. In this regard, the Tribunal notes Ms Potter’s findings and opinions were unequivocal about the Applicant’s parenting abilities and the children’s attachment to her; and therefore it is doubtful that they turned on a discrete source of information only. Furthermore, whilst the file review contains entries for an earlier period of time and provides details of other events, much of it contains content similar to, or repetitive of, that which can be found in the evidence tendered by the parties and agreed to be provided to her for the purposes of her assessment. Indeed, the assessment documents and file note records in Exhibit R5 may well have been prepared in the context of a perusal and consideration of, or at least part of, the file review.

  3. Ms Potter’s assessment was conducted over a period of three weeks and involved review of the written material, (including the additional material not previously agreed by the parties), interviews with the Applicant on three occasions, one face-to-face interview with the current carers and one telephone conversation with Ms SL, attendance at two contact visits, and one interview with the children.

  4. The Tribunal did not accept all of Ms Potter’s findings, the reasons for which are provided in subsequent paragraphs of these Reasons.

The children’s attachment to the Applicant

  1. In her oral and written evidence, Ms Potter opines that the attachments between the Applicant and each of the children are disorganised attachments. Ms Potter explained the nature of the attachment as follows: “Whilst the children and (the Applicant) engaged in an affectionate manner ………and articulate their love for one another, it is apparent that these attachments are also a source of confusion and distress for the children. This is due to (the Applicant’s) inconsistent parenting style, her difficulty placing the children’s needs before her own, her lack of attunement and understanding of the children’s needs, and role reversal which has caused the children to take on the role of caregiver when comforting (the Applicant) or feeling responsible for her emotional state and health”. [6]

    6. Exhibit R6 p 68

The Applicant’s parenting capacity

  1. Ms Potter opines that the Applicant is not able to meet the complex individual emotional, psychological and behavioural needs of the children in either the short-term or long-term, as a result of the following deficits in the Applicant’s parenting capacity as follows:

  • Difficulties in managing the stress associated with caring for the subject children due to their complex needs;

  • Difficulties sustaining structure and routine in the home environment and responding to the children in a way that is consistently nurturing, validating and empathetic, and the children’s exposure to verbal and physical aggression in the home;

  • Difficulties in regulating her emotions when experiencing distress, and placing the needs of the children above her own needs. This has been demonstrated by her inappropriate comments to the children (for example, by expressing negative views about the Respondent in the children’s presence, and continuing to cry during contact visits); and

  • A lack of insight into the impact of her comments on the children’s emotional functioning (for example, causing them distress and confusion).

  1. Ms Potter maintains that the Applicant’s parenting capacity is not likely to significantly change, even with increased supports and respite opportunities. In this regard, Ms Potter said that it was not feasible for a primary care-giver to have a regular weekly respite arrangement, noting that the children are of school age and their attendance at school each week-day would itself provide respite opportunities. Ms Potter also reinforced on a number of occasions that the Applicant had in fact attended specific parenting courses/education on at least three occasions, with no evidence of her ability to apply learned skills and no resulting improvement in her capacity.

  2. Ms Potter further states: “Any restoration would be considered high risk and history indicates that in spite of attending parenting courses……….(the Applicant) has not been able to provide a reparative and consistent environment to the children”. [7]

    7. Exhibit R6, p 68-69

The views of the children

  1. Master T expressed to Ms Potter a wish to live with his uncle (the Applicant’s son).

  2. Miss K expressed to Ms Potter a wish to live with the Applicant. Miss K expressed to Ms Potter that if she were to live with the Applicant, it would be even better if she could see all of her cousins with whom she resides in her current placement. She also said that if she were not able to return to the Applicant’s home, she would like to remain living in her current placement on a permanent basis.

  3. Miss C expressed to Ms Potter a wish to live with the Applicant. She also indicated that things could be even better if her mother could stay overnight and her two youngest brothers could also live there.

  4. Notwithstanding that the girls are almost 12 years of age, Ms Potter recommends caution be given to the weight of their wishes to return to live with the Applicant, which Ms Potter opines may be formed in the context of the girls wanting to ensure the Applicant is safe and well, “demonstrating role reversal with the children experiencing confusion”.

The impact on the children if they do not return to the Applicant’s care

  1. Ms Potter opines that there would be some impact on the children’s emotional functioning if they were advised they were not to be returned to the Applicant’s care. However, Ms Potter is of the view that they are settled in their current placement, and they appear to have established attachments to their current carers, including Ms SL who is a family member. That they are with cousins and an aunt will, in Ms Potter’s view, “allow them to experience the more positive outcomes associated with kinship care in comparison to general foster care” [8] .

    8. Exhibit R6, p 70

The steps required should the children be returned to the care of the Applicant

  1. In light of her recommendations that the children not be returned to the Applicant’s care, Ms Potter elected not to address this area.

An assessment of the contact between the Applicant and the children

  1. Ms Potter expressed concern about the Applicant’s inability to regulate her emotions in front of the children and her making of statements which cause confusion and distress in the children. As a consequence, Ms Potter recommends that contact be very closely supervised so as not to de-stabilise the children’s current placement. Ms Potter does not recommend that telephone contact between the Applicant and Master C be permitted at the present time, but that it be reviewed if Master T’s emotional regulation continues to develop and the Applicant is able to demonstrate her ability to engage in appropriate conversation with Master T.

Guardian ad Litem

  1. The Guardian ad Litem, Mr Stephen Stuart, interviewed the children on 25 August 2015 and 30 November 2015. He also spoke to the children’s teachers on 25 August 2015, and in the case of Master T’s teacher, also on 30 November 2015. Mr Stuart also spoke with the AMS case worker for Miss K and Miss C.

  2. Mr Stuart states the children’s teachers reported that the children are now much happier and more settled than while in the care of the Applicant. Master T’s teacher reported that while in the Applicant’s care, Master T was always agitated and on edge, and would engage in shouting with the Applicant. The teacher reported that the Applicant would often tell Master T that she was going to see his mother while he was at school, which caused Master T to deliberately behave poorly with a view to being sent home from school (presumably to seek further time with the Applicant and/or his mother). The teacher also reported difficulties in the Applicant following through with suggestions made by the school, and with managing the child’s complex behaviours, resulting in an escalation of problems. The teacher reported that since being placed with his current carers, Master T is much happier, less angry, and has been able to achieve higher reading levels.

  3. The AMS case worker reported to Mr Stuart that Miss K and Miss C currently enjoy being part of a larger family with everyone having clear responsibilities and tasks.

  4. In their initial conversation with Mr Stuart, the children expressed that they would prefer to be living with the Applicant, and according to Mr Stuart, “but realised that this was unlikely to happen because of what had happened when they used to live there” [9] . However, they also expressed that they were happy living with their current carers. Notably, however, one week after Mr Stuart’s initial conversation with Miss K and Miss C, the placement broke down and they were subsequently placed with Ms SL and Mr MB, their current carers.

    9. Affidavit of Guardian ad Litem dated 5 September 2015 at 14

  5. In his second affidavit, Mr Stuart indicated that the children are significantly conflicted about where they want to stay on a full-time basis. According to Mr Stuart, “(t)hey love living with (Ms SL and Mr MB) and their cousins but they feel really guilty about saying it as it may hurt their Nana and like all grandchildren they only want their grandparents to be happy and not be hurt in any way. The children present with quite complex behaviours but according to their teachers and the AMS Social Worker there have been significant improvements in the three children since leaving (the Applicant’s) care”. [10]

    10. Affidavit of Guardian ad Litem dated 1 December 2015 at 8

  6. In addition to his affidavit evidence, Mr Stuart provided written submissions to the Tribunal. Mr Stuart supports the decision of the Respondent to remove the children from the care of the Applicant. Furthermore, Mr Stuart stated that in order for the children to continue to thrive and reach their potential, they will need to remain in a long term placement with (Ms SL and Mr MB) under the parental responsibility of the Minister, and recommends that the Applicant and other family members have reasonable access to supervised contact on at least a monthly basis.

Submissions of Applicant

  1. Counsel for the Applicant submits that the majority of the factual basis for the Respondent’s decision is denied by the Applicant, and the evidence does not support the asserted reasons for the removal of the children. In addition, Counsel for the Applicant submits that the Respondent’s decision fails to have regard to a number of relevant considerations, including:

  • The attachment of the children to the Applicant, including the fact that the children had always lived with the Applicant;

  • The positive aspects of the placement; and

  • The failure of the Respondent to carry out its commitments to support the placement, despite recommendations by experts that intensive supports and regular respite were required.

  1. In relation to this latter point, Counsel for the Applicant submits that the “intensive support” as recommended in the initial assessment of the placement did not in fact occur, nor was regular respite for all children at the same time ever given to the Applicant, despite the high needs of the children.

  2. In addition, Counsel for the Applicant submits that despite the children’s Care Plans indicating that the Respondent would support the Applicant to develop an understanding of their Aboriginal culture, there were no proactive steps taken by the Respondent in this regard.

  3. Counsel for the Applicant points out that none of the services that assessed the Applicant during the time the children were in her care (with the exception of Ms Gurton) recommended the removal of the children.

  4. Counsel for the Applicant submits that the risk of harm to the children as a result of violence or conflict in the placement has been grossly exaggerated. Counsel submits that the Applicant has provided a reasonable explanation for the incident of 21 April 2015. Furthermore, he submits the Applicant has been honest about her use of physical discipline in the past, which was not unlawful and ceased well before the removal. Moreover, noting that any “risk” of harm (physical or psychological) could be ameliorated by the provision of appropriate support, Counsel submits the level of risk “comes nowhere near reaching a level of a risk of harm that is unacceptable”, and is not a sufficient basis for the removal of the children.

  5. Counsel for the Applicant submits that in light of the age of Miss K and Miss C, significant weight should be given to their wish that they be returned to the care of the Applicant. Counsel further submits that the breakdown of the girls’ placement with Mr and Mrs JL is a fact from which an inference can be drawn that Miss K and Miss C’s poor behaviours were a manifestation of their desire to return to the Applicant’s care.

  6. Furthermore, Counsel for the Applicant submits that the opinions of Ms Potter should be rejected as they lack balance and objectivity, and demonstrate bias in favour of the Respondent, in that:

  • The additional material “coloured” Ms Potter’s opinions.

  • Ms Potter failed to appropriately balance the information received from the Respondent and the Applicant and held an unduly negative view of the Applicant.

  • Ms Potter demonstrated an unwillingness to criticise the Respondent and made opinions unsupported by the evidence.

  • Ms Potter failed to provide an assessment in regard to a potential restoration process, contrary to common expert practice.

  1. Counsel for the Applicant submits that the Guardian ad Litem also lacks objectivity in his opinions and comments, which Counsel submits are unsupported by the evidence, and cannot be a reliable indicator of the wishes of the children.

  2. Counsel for the Applicant submits that to uphold the decision to remove the children would be unjust and would reward poor conduct on the part of the Respondent. Counsel requests that consideration be given to various options for the restoration of the children to the Applicant, including the return of Miss K and Miss C only, having regard to their age and wishes as well as the nature and longevity of their relationships with the Applicant.

Submissions of Respondent

  1. Counsel for the Respondent submits that the decision of the Respondent was made in the interests of the children; and, in the circumstances that existed both then and now, is the most appropriate to meet their interests and needs.

  2. Counsel for the Respondent acknowledged that although the provision of the material to Ms Potter was regrettable and inexcusable, the submission that Ms Potter was partial is not supported by the evidence and should be rejected. Counsel for the Respondent submits that that the effect of the additional material was not so significant so as to materially influence the conclusions of Ms Potter’s report, which clearly recommends in the interests of the emotional psychological and physical wellbeing of the children, that a return of their care to the Applicant is not appropriate in any circumstances.

  3. The Respondent acknowledges that the Applicant’s inability to care for the children “does not arise because of her lack of love, commitment or desire to care for them”. Rather, the Respondent submits there it is a result of a “fundamental interplay” of the complex needs of each of the children and the deficits in the Applicant’s parenting capacity.

  4. In addition, Counsel for the Respondent points to the evidence which indicates that at the present time the Applicant continues to experience difficulties in caring for Miss A. This includes Miss A’s lack of regular school attendance and a lack of regular engagement with mental health supports; a continuation of Miss A spending extended periods of time in her bedroom; and a continuation of the Applicant displaying her emotions (including with depressive effect) in Miss A’s presence. Counsel for the Respondent submits that the evidence, together with Ms Potter’s assessment, “clearly demonstrates the wisdom of the (Respondent) taking the action it did in removing the children”.

Tribunal reasoning

  1. In coming to its decision, the Tribunal took into account all of the evidence, both oral and documentary. It also took into account the submissions of the parties, as well as the important principles set out in section 9 of the Care Act and the objects of the Civil and Administrative Tribunal Act 2013.

  2. As indicated previously in these Reasons, the Tribunal’s role is to determine the correct and preferable decision having regard to the material before it. It has now been almost eight months since the children were removed from the care of the Applicant. In that time, the first (emergency) placement for Miss K and Miss C has broken down, and their current placement (with their brother) has been for approximately 3.5 months.

  1. There is little doubt that the Applicant loves and cares deeply for the children, and this is reciprocated by them. The Applicant and the children have a strong bond and affection for each other, developed over many years living together in the same home. Indeed, the Applicant has been the predominant source of support for the children for the majority of their lives. She has made a number of sacrifices, including relinquishing her employment to provide care for them, and no doubt foregoing many of her own social and leisure activities and interests.

  2. However, the evidence demonstrates that the ongoing primary care of the children by the Applicant was not, and is not, sustainable. The behavioural issues and care needs of each child are such that their best interests, and their safety, welfare and wellbeing are unable to be properly met in the Applicant’s care.

  3. In this regard, the Tribunal accepts, consistent with the findings and opinions of Ms Potter, that even if the Applicant were provided with increased respite opportunities and support, including that which had been recommended, their introduction and maintenance would be unlikely to materially change the way the care is provided to the children, or significantly reduce the risks to their safety and wellbeing.

  4. The Tribunal accepts the submission of the Applicant that any carer would be challenged by caring for four children with complex needs. However, the reality is that the Applicant was providing the primary care on her own, and had, and continues to have, her own significant and unresolved grief issues. It is also apparent that she has found it difficult to reconcile the different roles she is required to play; that of primary care-giver as well as grandparent to children. Despite attendance at specialist parenting courses and case-work support, the situation did not improve. Rather, the evidence shows that the problems were a consistent theme and were unable to be resolved, resulting in the crisis that occurred on 21 April 2015.

  5. However, it is important to note that the Tribunal took issue with certain aspects of the psychological evidence. As already indicated, the material to which Ms Potter had access went beyond that which was agreed by the parties. Ms Potter’s report, whilst comprehensive, references significantly more of the Respondent’s records and account of events than the oral and written evidence of the Applicant.

  6. In addition, there was considerable discussion about the children’s behaviours prior to, and subsequent to, their supervised contact with the Applicant. In this regard, the Tribunal was not satisfied, to the extent suggested by Ms Potter, that their behaviour and demeanour was solely as a result of the Applicant’s conduct and the nature of her relationship with the children. Rather, the Tribunal considered that other factors are likely to be relevant, including the impact and circumstances of the removal itself; the sudden change of placement, the introduction of supervision during contact with their family members, and the uncertainty created by the administrative and legal proceedings.

  7. Similarly, the Tribunal was also not satisfied that the Applicant’s behaviours during supervised contact visits necessarily provide a wholly reliable indicator of deficits in her parenting capacity. Indeed, it would appear that other factors would be relevant, including the time constraints of such visits and the Applicant’s awareness that her actions and communications were being observed and monitored, thereby potentially impacting on her ability to give consistently instinctive responses and reactions. Additionally, there may be legitimate reasons, for example, why during contact visits the Applicant was focused on a game being played (rather than engaging in separate verbal interactions with one child), including to ensure the continuity of the game for benefit of the other child, and/or issues with properly hearing all of the child’s interactions. Indeed, there is a notable discrepancy between Ms Potter’s assessment of the visits and the (non-clinical) observations of supervising staff, who reported consistently positive relations between the Applicant and the children.

  8. The Tribunal carefully considered the Applicant’s submission that in Ms Potter’ assessment, “much was made of such small matters”, with her criticisms often being “trivial or unreasonable”, and imposing an unreasonably high standard of parenting. On initial consideration, this submission has some merit. There was a considerable level of scrutiny of, and concentration on, details of actions and comments of the Applicant. However, on the other hand, it must be noted that the Applicant, though the children’s grandmother, was also the authorised carer of children in ministerial care and therefore subject to the inherent regulation that such circumstances require. Importantly, the subject children are vulnerable children who have been exposed to trauma and violence, and have been removed from their natural parents in the interests of their care and protection. In this regard, their vulnerability and susceptibility render the administration of their care and the protection of their psychological wellbeing particularly significant.

  9. Furthermore, there were other aspects of Ms Potter’s evidence which the Tribunal also accepted. Notwithstanding its criticism of parts of Ms Potter’s written report, the Tribunal found Ms Potter to be an impressive witness, whose responses in cross examination demonstrated a developed understanding of the issues and a thorough approach to the assessment. The Tribunal accepted the majority of Ms Potter’s opinions as they related to the Applicant’s parenting capacity, the attachment of the children to the Applicant, and her recommendation that the children not be returned to the Applicant’s care.

  10. The Tribunal finds that the deficiencies in the Applicant’s parenting capacity are apparent from the evidence. That the situation may have been managed more appropriately if further respite or support was given is difficult (and in the view of the Tribunal, not necessary) to determine. However, the Tribunal accepts the opinion of Ms Potter that there is limited evidence to indicate that the nature of the attachment and the Applicant’s parenting capacity is likely to change, even if suitable interventions are put in place simultaneously.

  11. Notwithstanding the focus by the parties on Ms Potter’s opinions and findings, it is important to note that a psychological assessment is only part of the material that the Tribunal may take into account in coming to its decision. In this regard, the assessment by Ms Potter was not determinative of the Tribunal’s decision in this matter. Rather, the Tribunal took into account all of the evidence before it and made a determination on its totality.

  12. Importantly, the Tribunal is cognizant of the section 9 principles of the Care Act, and in particular, that in regard to any decision to be made concerning the children, their safety, welfare and well-being are paramount. In this regard, the Tribunal has concerns about the history of the children’s exposure to physical, verbal and psychological aggression, including by the children’s mother and (former) partners.

  13. It is apparent that the Applicant is close to her daughter and wishes that she (her daughter) has more capacity to be involved with the children, including as a potential source of assistance in their care. However, it appears from the evidence (including her own affidavit evidence [11] ) that the Applicant continues to see the main risks attaching to the partners of her daughter, rather than viewing the risks posed by her daughter in her own right. Her inability to recognise the risks in relation to her daughter was highlighted by her apparent lack of concern of her daughter’s presence in her home without her supervision while she (the Applicant) was in hospital. [12] This raises concerns about the Applicant’s judgement and insight. Notwithstanding that prior to the children’s removal, Ms KP’s contact with the children was not required to be supervised by the Respondent, there was an expectation that the Applicant would supervise and oversee such contact. Furthermore, it is clear that considerable caution was required by the children’s primary care-giver, particularly in light of the children’s past exposure to violence and aggression, including at the hands of their mother and her partners.

    11. Exhibit A2 at 110

    12. Exhibit R3, Annexure A

  14. That the Applicant, as Ms KP’s mother, loves and cares for her daughter and wishes for her to have contact with her children is not in dispute. However, the Tribunal is concerned that the Applicant lacks the ability to dispassionately and objectively manage situations and take appropriate protective steps in circumstances where the children in her care may be at risk of harm, either physical or psychological. This is of particular relevance given that, at the present time, a strained relationship exists between the Applicant and the Respondent, who the Applicant believes has subjected her to unfair and unjust treatment. As such, if the children were to be returned to her care, there is a legitimate question about the Applicant’s capacity to meaningfully engage with the Respondent and actively seek out its help and support if the children in her care were at risk.

  15. The Tribunal carefully considered the Applicant’s submission, in the alternative to all three children being returned to the Applicant’s care, that only Miss K and Miss C be returned. The Tribunal takes into account the age of the girls and the fact that in less than three months’ time they will be able to instruct a legal representative (including in proceedings under the Care Act). The Tribunal is also cognisant of the principle outlined in section 9(2)(a) of the Act that the views of the child are to be given due weight in accordance with the developmental capacity of the child and the circumstances.

  16. Whilst Miss K and Miss C express a consistent preference to return to live with the Applicant, the evidence also indicates that they do not appear to have specific objections to their current placement with Ms SL, Mr MB and their cousins. It is a relevant fact that the girls have complex behaviours, which they experiencing difficulty in controlling. Their responses about not seeing the need for anything to change if they were to return to the care of the Applicant, and the response of Miss C (who indicated a wish to see more of her mother and her two youngest brothers in the Applicant’s home), also demonstrate a naivety and vulnerability that is relevant to the weight to be accorded to their wishes. Whilst having regard to their views, the Tribunal was not satisfied that a return of Miss K and Miss C to the care of the Applicant, would be in their best interests or promote their safety, welfare and wellbeing.

  17. It was apparent to the Tribunal that the timing of the children’s removal was one of evident crisis. At the relevant time, the Applicant was clearly under significant stress and strain. However, there were also multiple other concerns that had been present since the commencement of the placement with the Applicant. That the removal of the children happened in crisis, rather than in a more structured and planned manner, is unfortunate for all parties involved, including the Applicant and the children.

  18. Furthermore, the Tribunal finds that there were deficiencies in the Respondent’s oversight of the placement. Many reports and assessments were undertaken making clear recommendations for support and action, yet which were ultimately not closely followed-up and pursued. One might have thought in this case there was particular importance in doing so, given that the Applicant was providing care on her own to four children, all of whom have complex behaviours and needs. Whilst the Respondent’s deficiencies in this matter were apparent, the Tribunal finds that there is no basis for the allegations made by the Applicant against Mr Wells, and in in particular his actions in the context of the children’s removal on 21 April 2015. Rather, the evidence demonstrates that Mr Wells’ actions were taken out of a genuine concern for the safety and welfare of Miss A, and in the context of his responsibility as case manager for the children.

  19. As indicated previously, in reviewing the decision of the Respondent, the Tribunal is tasked with determining the correct and preferable decision as at the date of the Tribunal hearing. The evidence indicates that the children’s transition has not been without issue, as evidenced by the break-down of the girls’ initial emergency placement and some continuing problematic behaviours demonstrated by Master T. However, on balance, the children are faring relatively well in their current placement, with good reports about their school attendance and a reduction in their problematic behaviours. Significantly, the three children are now living together and their placement is with a member of their extended family, who is well-known to the children, and, who prior to April 2015, had considerable experience in providing respite care for the children, particularly Master T. The Tribunal finds that there is a lack of evidence to substantiate the Applicant’s claim that Ms SL’s care of the children is financially motivated. Rather, the evidence indicates that Ms SL has a genuine care and concern for the children, and an expressed desire to have a respectful relationship with the Applicant.

  20. Indeed, it is evident that there was once previous communication between the Applicant and the Respondent, and between the Applicant and the current carers, and that matters pertaining to the children were able to be discussed and determined together in collaboration. However, it is apparent that recent events, including the Tribunal proceedings, have resulted in conflict between the parties. It is hoped now that the application has been determined by the Tribunal, there is an opportunity for the future resumption of a civil relationship between the Applicant, the Respondent and the current carers, in the interests of the children.

  21. Furthermore, the Tribunal accepts that the children are still settling into their new placement, and it is important that they feel secure and stable in their current accommodation and have confidence in the care arrangements put in place for them. Accordingly, at the present time, the Applicant is restricted to monthly supervised visits with the children, and is not permitted to have current telephone contact with Master T. However, it is hoped that in the future, there may no longer be a need for contact to be supervised, and that as the children’s grandmother, the Applicant will be able to spend and enjoy time with her grandchildren, independent of the involvement of the Respondent.

  22. In conclusion, on the balance of probabilities, having regard to all of the material before it and the applicable law, the Tribunal is satisfied that it is in the best interests, and promotes the safety, welfare and wellbeing of the children, Miss K, Miss C and Master T, that the correct and preferable decision is to affirm the decision of the Respondent to remove from the Applicant the responsibility for the daily care and control of the said children.

Order and Recommendations

  1. The order of the Tribunal is as follows:

  1. The decision of the Respondent to remove from the Applicant the responsibility for the daily care and control of the subject children is affirmed.

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

  1. That the Respondent develop a plan for the introduction of unsupervised contact visits between the Applicant and the children, to commence at a date determined by an independent health professional (e.g. social worker or psychologist);

  2. That the unsupervised contact include the Applicant’s invitation to, and attendance at, the children’s schooling and extra-curricular events.

  3. That the Respondent arrange for an appropriately qualified family law mediator to provide mediation sessions between the Applicant and the children’s current carers, with a view to assisting them to reach agreement on future contact and communication with the children and each other.

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Endnotes

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: 23 December 2015

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Cases Citing This Decision

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DRD v Secretary Department of Family and Community Services [2019] NSWCATAD 22