CCC v Department of Family and Community Services

[2016] NSWCATAD 225

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

CCC v Department of Family and Community Services [2016] NSWCATAD 225

Hearing dates:

16 March 2016 and 21 April 2016

Date of orders:

07 October 2016

Decision date:

07 October 2016

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Higgins, Principal Member
R Royer, General Member

Decision:

(1) The decision of the respondent, made on 8 December 2015, to remove the children in the applicants’ care on 5 January 2016 is affirmed.

 

(2) The decision of the respondent, made on 13 January 2016, to cancel the applicants’ authorisation as out-of-home carers is set aside.

 (3) The applicants’ application for costs is refused.

Catchwords:

ADMINISTRATIVE REVIEW – review of decision of the respondent to remove three foster children from the day-to-day care of authorised carers and to cancel the authorisation of those carers.

Legislation Cited:

Administrative Decisions Review Act 1997
Children and Young Person (Care and Protection) Act 1989
Civil and Administrative Tribunal Act 2013
Community Services (Complaints, Review and Monitoring) Act 1993
Children and Young Person (Care and Protection) Regulation 2012

Cases Cited:

YG and GG v Minister for Community Services [2002] NSWCA 247

Category:

Principal judgment

Parties:

CCC and CCD (Applicants)
Department of Family and Community Services (Respondent)

Representation:

Baker & Borthwick Solicitors (Applicants)
NLS Law (Respondent)
Dr Ainsworth (Guardian ad Litem for the children)

File Number(s):

1610046

Publication restriction:

S65 of the Civil and Administrative Tribunal Act 2013.

Reasons for decision

1. On 22 January 2016, the applicants, CCC (Mr C) and CCD (Mrs C), lodged an application with the Tribunal seeking external review of the decision of the respondent to:

1. remove three foster children (the children) from the applicants’ day-to-day care; and

2. to cancel the applicants’ authorisation as out-of-home carers under clause 42 of the Children and Young Persons’ (Care and Protection) Regulation 2012 (Care Regulation).

2. When lodging their application for review, the applicants also lodged an application for a stay of the decisions the subject of review. At a subsequent directions hearing, on 18 February 2016, the applicants did not press their stay application.

3. The children the subject of this application were placed into the applicants’ care in October 2012. In September 2015, the respondent lodged a section 90 application with the Children’s Court seeking orders for the restoration of the children into the care of their birth mother: see Children and Young Person (Care and Protection) Act 1989 (Care Act). In November 2015, the Children’s Court made the orders sought and the children were removed from the applicants’ care, on 5 January 2016, during the transition period from the applicants’ care to the care of their birth mother. A more detailed background of the placement of the children and their subsequent removal is set out below.

4. The applicants were informed of the children’s removal from their care on 5 January 2016. Ms Amanda Harrison, the respondent’s manager casework advised Mrs C of this, by telephone that morning. Later that day the applicants received a letter from Ms Harrison formally advising them of the “change of placement.” The reasons given for the change were:

1. the recommendations of an independent placement review – the review report (dated 11 May 2015) recommended a change of placement due to “psychological harm to the children by the carers being sustained and which has been ongoing since the children entered care”;

2. concerns about the applicants’ willingness to support restoration of the children to their birth mother, which was subjecting the children to further risk of psychological harm;

3. the applicant’s reluctance to sign the Code of Conduct in its current form; and

4. the unwillingness of the applicants to work with the respondent caseworkers to meet the minimum outcomes and expectations if the children were to remain in their care. These outcomes and expectations were:

1. Mr C engaging and participating with the respondent,

2. the applicants showing they support, care and nurture the children and speak to them in a positive and respectful way and use discipline that does not shame or undermine them and to have adult conversations away from the children;

3. the applicants to come up with a plan as to how they can speak in a calm and productive way when they feel stressed and frustrated with the children and the respondent, so that the children will not feel threatened, yelled at, worried or scared – that is the children will not see the applicants’ bully or undermine others; and

4. all conversations about restoration to include the respondent and the applicants behaving in a manner that supports restoration to the birth mother.

5. The respondent determined to cancel the applicants’ authorisation, on 13 January 2016. On the same day, the respondent wrote to the applicants and advised them of the cancellation. The reasons given for the cancellation were as follows:

“A reluctance to sign the Code of Conduct which is a minimum requirement to be an Authorised FACS carer

An unwillingness to work collaboratively with FACS and to follow reasonable direction

Ongoing psychological harm towards the children in your care which resulted in the removal of the children from your care as supported by an independent review”

6. The respondent conducted an internal review subsequent to the applicants filing this application. On 12 February 2016, the respondent filed and served its internal review decision, which affirmed the original decision for the same reasons.

7. The applicants’ application was heard on 16 March and 21 April 2016.

8. At the commencement of the hearing on 16 March 2016, the respondent advised that the restoration plan was progressing well and that in accordance with the restoration plan the children would be with their birth mother from 8 April to 28 April.

9. The applicants nevertheless pressed their application for review. They indicated, through their solicitor, that they did not oppose the restoration of the children to their birth mother. However, they wanted to remain part of the children’s lives and provide respite care, or longer care if needed in the future. Hence it was on this basis that they pressed their application for review of the decision to remove the children from their care.

10. At the hearing on 21 April 2016, the respondent again advised that the restoration plan was progressing well and full restoration would be occurring in early May 2016. In the meantime, the children continued to remain in the care of the carer of their younger brother. At the conclusion of the hearing that day we reserved our decision. We also made orders for the filing and serving of written submissions on costs, as the applicant had indicated they would be seeking their costs of the application. In accordance with the orders made written submissions were filed by the parties on 6 and 13 May 2016 respectively.

The Tribunal’s jurisdiction

11. There is no dispute that the Tribunal has jurisdiction to hear and determine the applicants’ application: see Civil and Administrative Tribunal Act 2013, section 30; Administrative Decisions Review Act 1997 (the ADR Act), section 7; Community Services (Complaints, Review and Monitoring) Act 1993, subsection 28(1); Children and Young Persons (Care and Protection) Act 1998 (Care Act), subsection 245(1)(a1) and (c).

12. The role of the Tribunal is to decide what the correct and preferable decision is having regard to the material before it, including any relevant factual material and any applicable law: see subsection 63(1) of the Administrative Decisions Review Act 1997. The applicable law is that set out in the Care Act and the Care Regulation. The relevant provisions are set out below.

13. That is, the Tribunal’s jurisdiction is to sit in the shoes of the decision maker and decide the matter afresh, as at the date of hearing: see YG and GG v Minister for Community Services [2002] NSWCA 247, at [25].

14. For the reasons that follow we have found that the decision to cancel the applicants’ authorisation is not the correct and preferable decision and should be set aside.

15. In light of the restoration orders made by the Children’s Court in November 2015, the appropriate order is to affirm the decision of the respondent in regard to the removal of the children from the applicants’ care. However, we have made a number of observations in regard to the basis on which that decision was originally made. In regard to the respondent’s decision to cancel the applicants’ authorisation, in our opinion this is not the correct and preferable decision and should be set aside.

The Care Act and Care Regulation

16. The legislation relevant to the matters in issue in this application is contained in the Care Act and the Care Regulation.

The Care Act

17. Part 1 of Chapter 2 sets out the objects and principles of the Care Act. Section 9 in this part sets out the principles for the administration of the Act and the regulations made pursuant to the Act. In this regard subsection 9(1) provides that the 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.”

18. Chapter 8 of the Care Act makes provision for out-of-home care and the authorisation of carers to provide such care. The objects of that Chapter are set out in section 134 and provides as follows:

“134   Objects of this Chapter

The objects of this Chapter are:

(a)  to create a high standard in the provision of out-of-home care, and

(b)  to provide a model for the organisation of out-of-home care, and

(c)  to clarify the roles and responsibilities of those involved in the provision of out-of-home care.”

19. Sections 135, 135A, 135B and 135C prescribe three types of out-of-home care (statutory, supported and voluntary). In these proceedings the relevant type is statutory out-of-home care: Care Act, section 135. Statutory out-of-home care may only be provided by an authorised carer: Care Act, subsection 136(1)(a).

20. Section 137 in Part 1 of Chapter 8 Part 1 defines the term “authorised carer” to include “a person who, in accordance with the regulations, is otherwise authorised as an authorised carer by a designated agency.” The respondent is a “designated agency” within the meaning of subsection 139(1)(a) of the Care Act and there is no dispute that, in November 2011, the respondent authorised the applicants to be authorised as carers under the Care Act and the Regulation as they applied at that time.

21. Section 140 of the Care Act provides that supervisory responsibility of a child or young person placed in out-of-home care rests with the designated agency. That section relevantly provides:

“140   Supervisory responsibility of designated agency

The designated agency that places a child or young person in the out-of-home care of an authorised carer has a responsibility to supervise the placement.

Note. Before a placement is found for a child or young person, parental responsibility will lie formally with the Minister by virtue of an order of the Children’s Court. The designated agency is responsible for finding a placement and supervising it, and necessarily will exercise certain functions delegated to it. These functions could include the following:

(a)  the power to place a child or young person with an authorised carer or in a residential unit,

(b)  the power to make decisions on matters relating to the safety, welfare and well-being of a child or young person that are not encompassed in the care responsibility,

(c)  the power to control the exercise of the care responsibility by giving directions to authorised carers,

(d)  the duty to supervise the placement and to ensure that the safety, welfare and well-being of the child or young person is being protected and promoted.

These would encompass the powers and responsibilities of the designated agency. …”

22. Section 146 of the Care Act provides that an authorised carer is entitled to participate in the making of decisions, going beyond those relating to daily care and control, concerning the safety, welfare and well-being of a child or young person placed in his/her care.

Care Regulation

23. Division 2 of Part 6 of the Care Regulation makes provision in regard to the authorisation of carers by designated agencies.

24. Clause 34 in that Division prescribes the conditions of an authorisation once granted. That clause relevantly provides as follows:

“34   Conditions of authorisations

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

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

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

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

(4A)  …

(5)  In this clause:

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

25. The term “code of conduct” is defined to mean the code of conduct for authorised carers approved by the Minister and published on the respondent’s website. The applicable Code of Conduct approved by the Minister relevantly provides:

“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.

…”

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

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

41   Management of behaviour of children and young persons

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

(a)  must not use:

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

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

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

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

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

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

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

(b)  by changing the placement arrangements.

28. Clause 42 of the Care Regulation makes provision for the cancellation and suspension of an authorisation. That clause is in the following terms:

“42   Cancellation or suspension of authorisations by designated agencies

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

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

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

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

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

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

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

29. Clause 30(4) of the Care Regulation provides that a designated agency must not authorise a person to be an authorised carer unless the agency has determined the person is capable and suitable to be an authorised career. Clause 30(5)(c) provides that a designated agency must obtain or conduct a suitability assessment of the person in accordance with that clause and Schedule 2 and in doing so must determine that each element of the assessment is satisfactory.

30. Schedule 2 of the Care Regulation sets out the “uniform suitability assessment requirements” for the purpose of the Regulation. The assessment requirements are contained in clause 2 of the Schedule and involve the obtaining of information about the persons identity, criminal record and any other material about the person that is held by another agency.

The evidence

31. In support of their application the applicants relied on the following material:

1. affidavit of Mrs C, affirmed on 14 January 2016;

2. eight letters of support from persons who know the applicants and have witnessed the manner in which they care for their children and the three foster children together with a number of documents relevant to the applicant’s application;

3. a copy of text messages between Mrs C and the respondent’s case worker for the children;

4. letter from Larissa Collins, Clinical Psychologist, dated 5 February 2016;

5. affidavit of Mr C, affirmed on 15 March 2016; and

6. further affidavit of Mrs C, affirmed on 1 February 2016.

32. Mr C and Mrs C both gave oral evidence at the hearing and were cross-examined by the respondent’s solicitor, Ms N Shepherd.

33. The respondent relied on the following material:

1. a large bundle of documents filed and served on 2 February 2016. That bundle contained the respondent’s s58 material (i.e. s58 of the Administrative Decisions Review Act 1997);

2. an affidavit of Ms Amanda Harrison, affirmed on 29 January 2016;

3. a further affidavit of Ms Amanda Harrison, affirmed on 11 March 2016; and

4. and a copy of the respondent’s CPD Course Readings entitled “Module 2, Neglect, Psychological and Emotional Harm.”

34. Ms Harrison also gave oral evidence at the hearing and was cross-examined by the applicant’s solicitor, Mr L Hagan.

34. We have dealt with the evidence below in so far as it relates to the matters in issue. However, before we deal with the matters in issue it is convenient to set out the uncontested background to this application.

Background

36. As we have already noted the applicants were authorised as out-of-home carers in November 2011. They were authorised by the respondent to provide respite and short term care of two children aged between 8 and 13 years.

37. In October 2012, the respondent placed three children into the care of the applicants. The children were siblings, child B (a boy aged 9 years), child C (a girl aged 8 years) and child D (a girl aged 3 years). The children all had special needs.

38. The children have an older brother, child A (then aged 11 years) and a younger brother, child E (then aged 2 years) who had also been removed from their birth parents, but not placed with the applicants. Child A and child E were separated from each other and placed in different placements.

39. In February 2013, the Children’s Court made final orders in respect of the five siblings. The Court ordered that all aspects of parental responsibility for the five children be allocated to the Minister until such time as each of them attains 18 years. The Court also ordered that the birth parents of the children were prohibited from:

“(a) being in the vicinity of the children’s schools, activity centres, residences or places where the children might from time to time by staying, without the prior approval of Family and Community Services; and (b) from exercising any form of contact with the children, without the prior approval of family and Community Services.”

40. At the time the three siblings were placed into the applicants’ care there was some discussion that the youngest of the five siblings, child E, should also be placed with the applicants. Over time, the applicants made several requests as to when child E would be placed into their care.

41. During 2013, the respondent received a number of reports of alleged abuse of the children by the applicants. The allegations included:

1. 7/3/2013 - an allegation Mr C was physically aggressive towards child B and that he regularly used inappropriate discipline methods;

2. 3/2013 – an allegation Mr C had commenced a relationship with Mrs C when she was 13 years of age and he was 29 years of age – an allegation Mr C was violent and an allegation the applicant’s son had sexually abused his 14 year old cousin;

3. 3/6/2013 – an allegation child B and child C were being physically abused and harshly punished by the applicants and all three children were being psychologically harmed and that the applicant’s son was violent;

4. 11/6/2013 – an allegation that child B was being regularly physically and psychologically abused by the applicants;

5. Nov 2013 – an allegation Mrs C was using the threat of cancelling contact with the children’s mother as a means to manage the children’s behaviour.

42. The respondent referred the allegations to the Reportable Conduct Unit (RCU). In July 2013, the RCU requested the respondent to conduct a secondary assessment. That assessment was completed in August 2013 and the respondent found there was no harm caused to the children and no risk in the placement (i.e. “the children were safe in the care of the [applicants]”), but the applicants were identified as needing a high level of support and education. During this time the applicants were also informed that the transition of child E to their care was being put on hold until after the RCU had made its determination in regard to the allegations and the respondent had identified what changes might be required for the placement to proceed.

43. In September 2013, the Ombudsman requested further information from the respondent in regard to the assessment. The information was provided in October 2013.

44. In November 2103, the applicants reported several months of challenging behaviours from child B.

45. In December 2013, the applicant’s met with the respondent caseworkers and manager casework. At the meeting the applicants were provided with information on childhood attachment and trauma and they were informed they would need to attend the Reparative Parenting course – the applicants were also informed that child E would not be transitioning to their care and the priority was to ensure the applicants were managing the children in their care.

46. During November and December 2014, the respondent received further reports of alleged psychological harm by the applicants to child C. The allegations included the following:

1. Mrs C allegedly used “a bit of force” to get child C back into her room;

2. Mr and Mrs C allegedly made inappropriate and insensitive comments to child C causing psychological harm;

3. Mrs C allegedly grabbed child C by the chin and reprimanded her – it was also alleged Mrs C yelled at all three children and subjected them to harsh punishment and that Mr and Mrs C spoke negatively to the children about child E’s carer and their case worker.

47. In December 2013, the carer of child E reported that she felt intimidated and undermined by Mrs C. In February 2014, a meeting was held between the three carers of the five siblings and the respondent caseworker and manager casework. Issues about contact were discussed, including overnight contact visits of child E with his siblings in the applicants’ care. Disharmony between Mrs C and child E’s carer was also noted by the respondent.

48. In July 2014, the applicants wrote to the respondent requesting an outcome from the investigation which they noted was delaying child E being placed into their care. In the same month, child A stayed with the applicants for four nights as his carers were away. Following the visit, child A disclosed to his carer he had sex with child B. Child A and child C were subsequently interviewed by JIRT. The abuse was found sustained, when it occurred was not known, but was believed to have occurred while the children were living with their parents. Subsequently, in August and December the applicants wrote another letter to the respondent to say they still had not heard any outcome from the investigation.

49. In mid-December 2014, the applicants requested a meeting with the respondent. They met on 15 December and the applicants attended together with their advocates. They were informed by the respondent that it had been decided that child E remain with his current carer until an assessment could be made of his primary attachment relationships (i.e. attachments to his current carer verses his siblings). The applicants were also informed the RCU was still investigating the allegations.

50. Towards the end of 2014, the respondent requested the applicants re-sign the Code of Conduct.

51. During January 2015, the respondent received reports from Mrs C and child E’s carer of continuing dissatisfaction with each other. Each was suggesting the other was sabotaging contact plans and that Mrs C was speaking negatively about child E’s carer to the children.

52. In January 2015, child A’s counsellor advised the respondent that the applicants had facilitated regular contact between child A and child C when there had been specific instructions that such contact should only occur with professional supervision. During the same month the respondent met with Mrs C to discuss its concerns about the disharmony between herself and the carer of child E as well as the placement of the three siblings in her care and that of her husband. Mr C was also invited to attend, however he chose not to attend.

53. In February 2015, the children’s caseworker facilitated contact between children and child E at his carer’s home. This was facilitated following the carer having reported that she was experiencing significant stress in her relationship with Mr and Mrs C. It was reported that it was a very positive contact visit for the children.

54. In March 2015, child E had extended respite in the applicant’s care as his carers were away. Mrs C reported child E did not wish to go home and that he was aggressive towards his siblings. Mrs C also wrote to the caseworker requesting changes to the mother’s contact visits and changes to the overnight contact of the children with child E – these requests were accommodated. In the same month the RCU interviewed the applicants and they were informed that the matter could take three months or more to be finalised.

55. On 9 March 2015, the respondent engaged Ms Diane Edwards, Consultant Social Worker, to conduct the independent review as foreshadowed in December 2014 (i.e. child E’s primary attachment relationships). However, the respondent also asked Ms Edwards to “identify where the children [i.e. all five children] should reside on a permanent basis and the safety for the children in their current placement.”

56. In April 2015, the children had their first overnight contact with child E at his carer’s home.

57. On 11 May 2015, Ms Edwards completed her report. In the recommendations of her report, Ms Edwards concluded that it was apparent the children “may have made progress in many area of their development since being placed with their carers and the carers are meeting many of their needs.” Ms Edwards also concluded:

“[The] children have established relationships with the carers. The children are integrated into their schools and community networks. The children’s current situation is obviously far better than the situation from which they were removed. The carers articulate a commitment to continue to care for the children until they reach adulthood and report that they love the children and consider them part of their family.”

58. Ms Edwards went on to say she did not believe the placement will adequately and safely meet the needs of the children during their childhood and adolescence and “indeed may continue to impact negatively” on child E’s placement. It was on this basis Ms Edwards recommended the children be removed from the applicant’s care. Ms Edwards also made a number of suggestions, subject to further assessment, as to where the children might be placed. She also asked the question: “Has there been enough positive change in the mother’s health, relationships and lifestyle for an assessment of restoration to be considered?”

59. On 19 June 2015, after Ms Edwards had completed her report, the RCU completed its report on the allegations made against the applicants in 2013 and 2014. In summary, the allegations and the findings were as follows:

1. Allegation one to three (allegations relating to Mr C in regard to his relationship with Mrs C) – found not sustained

2. Allegation four (allegation Mr C hit child B and child C with an open hand) – found not sustained

3. Allegation five and thirteen (allegation Mr and Mrs C neglected the children by allowing them to have contact with their older brother in contravention of the directions of the respondent) – found not sustained

4. Allegation six and seven (allegation Mrs C smacked the children on a number of occasions with a wooden spoon between October 2012 and June 2013 and allegation Mrs C hit child C on the arm with a wooden spoon in December 2012) – found not sustained

5. Allegation eight (allegation that in June 2013, Mrs C “shoved” child B into his room and hit him over the head and shoulders) – found to be true but not reportable conduct

6. Allegation nine (allegation Mrs C smacked (a “fairy tap”) child D on his hand because she did not eat her dinner) - found to be true but not reportable conduct

7. Allegation ten (allegation Mrs C came into child D’s room in January or February 2015 and pushed her down on the bed) – found not sustained

8. Allegation eleven (allegation Mrs C physically assaulted the children – three incidents were cited but no date on which the alleged assault were alleged to have occurred was provided) – found that the first alleged incident was not sustained – the other alleged incidents were found not to be reportable conduct

9. Allegation twelve (allegation that Mrs C caused psychological harm to child C on a number of occasions between October 2012 and December 2014) – found not sustained

60. On 9 July 2015, the children’s caseworker contacted the applicants and invited them to a meeting on 13 July to discuss the May report of Ms Edwards. At the request of Mrs C, the children’s caseworker sent a redacted copy of Ms Edwards’ report to Mrs C.

61. On 13 July 2015, the applicants lodged an application for review of the respondent’s decision to remove the children from their care as recommended by Ms Edwards (Tribunal file no 1510391). The applicants also made an application for a stay of the respondent’s decision to remove the children from their care. On the same day, the applicants met with the respondent’s officers as arranged. At this meeting the respondent informed the applicants that it was exploring and pursuing restoration of the children to their birth mother. According to the file note of the meeting prepared by the respondent, the Mrs C said she always knew restoration would happen and they hoped it would happen, but suggested it would take some time. The file note records the applicants’ undertaking not to inform the children about the planned restoration and that the applicants will always be part of the children’s lives as significant others.

62. In an email sent to the applicants on 16 July 2016, Ms Harrison said it was not her intention to remove the children from the applicants’ care pending the transition to their birth mother. She said it was her wish to have Mr and Mrs C “on board” so they could support the children in the transition to make it as smooth as possible for them. Ms Harrison said the applicants’ reaction in bringing the proceedings before the Tribunal was not unwarranted. She said she understood where the applicants were coming from and that she had learnt a lot from her dealings with the applicants in relation to considering all angles and parties in her decision making process. Ms Harrison went on to acknowledge that Mr and Mrs C had the children’s best interests at heart, but the lack of trust in the respondent had made her extra protective of them. She also acknowledged they had been given mixed messages along the way during the time they had been caring for the children.

63. On 23 July 2015, the Tribunal refused the applicants’ application for a stay and made orders for the filing of evidence. The Tribunal also made an order for the appointment of a Guardian ad Litem and listed the matter for mediation on 3 September 2015 and in the event the matter was not settled at mediation, the matter was set down for hearing on 24 September 2015. The matter did not mediate. The respondent had in the meantime lodged a section 90 application, in the Children’s Court, seeking orders for the restoration of the children to their mother.

64. On 13 August 2015, the respondent’s staff met with the applicants and their support person to discuss the goal of restoration, which the applicants agreed to support. During this meeting the applicants were provided with four statements, prepared by the respondent, that identified the respondent’s concerns about the placement and what the applicants needed to do to ensure the children would remain in their care pending restoration. The concerns were those identified in paragraph 4(d) above and investigated by the RCU. It was these concerns that also formed the basis on which the children were subsequently removed and the applicants’ authorisation was cancelled.

65. On 13 August 2015, at the request of the caseworker, Ms Sam Ivancisk of the local Child Protection Counselling Service of the local Community Health Service provided an updated report on child C. The report dealt with child C’s attendance for counselling from October 2013 to early January 2015 and in that sense was historical and prior to the findings of the RCU. We also note Ms Edwards spoke to Ms Ivancisk in the course of her assessment and the views expressed in Ms Ivancisk’s letter are consistent with the findings of Ms Edwards.

66. At the directions hearing on 10 September 2015, the Tribunal noted the respondent’s undertaking not to remove the children from the applicants’ care pending the outcome of the applicants’ application for review.

67. At the hearing on 24 September 2015, the applicants withdrew their application for review in light of the pending Children’s Court proceedings. The Tribunal made an order dismissing their application subject to any application for costs. The applicant made an application for costs, which was determined by the Tribunal, differently constituted, on 8 January 2016: see CCC and CCD v Department of Family and Community Services [2016] NSWCATAD 10.

68. In October 2015, the children’s birthmother complained to the respondent caseworkers that Mrs C was undermining her and affecting the restoration plan.

69. On 15 October 2015, Ms Carey, the children’s caseworker, sent an email to the applicants requesting their input into the children’s care plans for the purpose of the Children’s Court proceedings. Ms Carey and the manager casework (we assume Ms Glenda Christopher) met with the applicants on 22 October 2015, to discuss the applicants’ input. The applicants attended the meeting with their advocates who asked that the restoration process be slowed down and that the care plan provide that the children would be returned to the applicants if the restoration was not successful. In its internal review, the respondent said the manager casework responded to the latter request by saying that this would not be entered into the care plan because she felt the applicants were unable to work with the respondent.

70. On 27 October 2015, Ms Carey sent another email to the applicants advising them about what was to be included in the children’s care plan in so far as it related to them. That insertion relevantly stated as follows:

“[Child B] has been in the care of FaCS Authorised Carers Mr and Mrs [C} since coming into care in 2012. [Mr and Ms C] have stated they are supportive of [the children] being restored to [their birth mother]. Mr and Mrs [C] would like the restoration process to be monitored to ensure the children’s safety and that their physical, emotional, educational and psychological needs continue to be met. Mr and Mrs [C] have stated that they would like to remain as significant figures in [child B’s] life and would like to continue to have a relationship with him once he has been restored.”

71. On 5 November 2015, the Children’s Court made further orders in regard to the four (i.e. all except the eldest of the five siblings) children in the following terms:

1. parental responsibility for the children was allocated to the Minister for a period of 12 months from the dare of the orders;

2. thereafter, parental responsibility for the children is allocated to the birth mother to the exclusion of the birth father;

3. the children are placed under the supervision of the Minister for a period of 12 months at the expiration of Order 1;

4. the specified undertakings of the birth mother were noted; and

5. a report was to be prepared regarding the restoration progress 11 months after the making of the orders.

72. On 6 November 2015, Ms Carey sent a text message to Mrs C asking how the children were. Mrs C responded as follows:

“If you mean how they took the news, when they got home last night [child D] came straight in to me and hug me and wouldn’t let go and said she wants to stay with us and just visit mum lots. [child C] is disappointed she is made to go and [child B] is very quiet and not saying much. They are all very confused, you may all see this a victory but to the kids it’s not. [Child A] has told the kids he hates us carers that we don’t care about the kids. So you take from this what you will the bottom line is its (sic) not about what you or [the birth mother] wants (sic). [The birth mother] is already psychological (sic) hurting the kids with things she is saying and doing. We will always be around for the kids no matter they are our priority.”

Ms Carey responded as follows:

“Okay, thanks for letting me know. As we said the restoration process will be guided by the needs of the kids so it is important to know how they are feeling.”

73. On Thursday, 19 November 2015, Mrs C sent a text message to Ms Carey requesting a meeting with her “asap”. Ms Carey responded by saying she was on leave as of that afternoon and would be returning until the following Tuesday. Mrs C said that was “ok”. Ms Cary sent another email to say that she was meeting with the restoration caseworker that afternoon before she went on leave and she could meet Mrs C the following Tuesday.

74. On Friday, 20 November 2015, Mrs C sent an email to Ms Carey. Attached to the email was a three-page letter from Mrs C outlining her concerns about the children and their contact, during November 2015, with their birth mother, their older brother and the carer of child E.

75. On Tuesday 24 November 2015, Mrs C sent a text message to Ms Carey early in the morning asking if they could meet at the park next to the office at about at 10am. Ms Carey responded and said, as the matters Mrs C wanted to discuss were confidential they needed to meet in the office. Mrs C responded by saying that she did not wish to meet in the office. After a number of further text messages it was agreed they would meet on Thursday that week, at the local Community Services Centre, at about 1 or 1.30pm.

76. On Thursday, 26 November 2015, Mr and Mrs C together with their advocate, met with Ms Carey and Ms Glenda Christopher. It was at this meeting that Mr and Mrs C indicated that they would only sign the Code of Conduct if their proposed amendment was agreed to. Ms Carey’s note of the meeting is as follows:

“… [I] stated that this was a legal document about the responsibilities of carers and that I was not going to change the form. [Mrs C] asked where their rights were and I advised that this form was not about FaCS but about their role as carers. I said I could not change the form. [Mr and Mrs C’s advocate] then advised [Mrs C] that they were adults and that they had amended the form as was their perogative (sic) as adults and that “she [indicating CW Jade Carey] would just have to accept it.

I said that she could take it away and think about it. [Mrs C] replied that she would do more investigating.

CW met with A/MCS Vaughn Higson and A/MCW Glenda Christopher and advised the above situation. Vaughn advised contacting Hunter OCG Support and finding legal support as the carers would be in breach if they failed to sign the contract. Vaughn advised to let the carers know that they had two weeks to sign it or they would be in breach.”

77. On 3 December 2015, Ms Carey sent an email to Mrs C. In that email, Ms Carey said that she had met with Ms Harrison in regard to the concerns she had raised and that she would look into it and that she would be contacted the following week in regard to the outcome. Ms Carey also said the following in regard to the Code of Conduct:

“In relation to our discussion regarding the Code of Conduct I just wanted to re-iterate (and after seeking advice) that FaCs are not able to amend the Code of Conduct as it is a standard document. However, I will note on your file your request for the amendment and that you and [Mr C] have made an informed decision not to sign it at this stage. As you are aware this is the minimum requirement for all carers as part of the authorisation process and this will be taken into consideration at your next carer review.”

78. On 8 December 2015, Ms Harrison, Ms Glenda Christopher, Ms Jade Carey, Ms Raelyn Stinson (the children’s restoration caseworker) and Lynese Norris (caseworker) met to review whether the children should “remain” in the care of the applicants because of their continual undermining of the restoration plan, causing psychological harm to the children and refusing to sign the Code of Conduct. The Extra-Ordinary – Minnesota Model was used to facilitate the discussion that day. The meeting concluded the children should be removed from the applicants’ care after Christmas because they were presenting as being extremely confused and frightened about the restoration.

79. The meeting decided the children would not be returned to the applicants after they had spent the first week of January 2016 with their birth mother. That week being part of the transition plan. It was also decided that the applicants, the children, nor the carer of child E would be informed about the decision until the children had spent the planned week with their birth mother.

80. As we have noted, on the morning of 5 January 2016, Ms Harrison telephoned Mrs C and invited her and her husband into a meeting that day. When Mrs C said they were unavailable to attend because the roads were flooded, Ms Harrison advised that the children would not be returning to their care. Later that day the applicants were given a letter from Ms Harrison to inform them of the decision to remove the children and the reasons as to why they were removed.

81. The children were moved to the same placement as their younger brother, child E where they remained. The applicants signed the Code of Conduct subsequent to this during the course of these proceedings.

The applicants’ case

82. The applicants contended that from the time the respondent had agreed not to remove the children from their care in September 2015 to 5 January 2016 there was no single trigger event or series of events that warranted the immediate removal of the children from their care in January 2016. Nor was there a basis to cancel their authorisation after the RCU found the majority of the allegations were not sustained and those that were sustained were not reportable conduct. It was submitted the only explanation for the cancellation of the authorisation was a personal dislike of the applicants.

83. The applicants noted there had been significant involvement and discussions by both caseworkers and carers in the issues of the children’s welfare and placement. It was submitted that with such significant involvement and discussion and differing roles and perspectives that arguments at cross purposes, misunderstandings and differences in opinion about the children’s best interests would not be unexpected and in some instances even healthy. That is, they were not indicative of a lack of co-operation by the applicants.

84. The applicants also submit that:

1. the findings of the RCU in regard to the historical complaints should be accepted – that is, the complaints found not to be sustained should have been accepted by the respondent – instead it relied on these in making the decisions it made;

2. there was no independent evidence that the applicants were responsible for causing psychological harm to the children. In this regard, the applicants noted Ms Edwards was not a psychologist and her findings and recommendations were made on the basis of the allegations and prior to the findings of the RCU, who found the allegation of psychological harm was not sustained. The applicants also pointed to the 5 February 2016 letter from child C’s treating psychologist in which there was no mention of harm being caused by the applicants – on the contrary the psychologist noted child C had said she wanted to stay in the applicants’ care; and

3. a copy of the Code of Conduct was signed by the applicants in 2013 and the applicants have at all times understood they were bound by the provisions contained therein. The applicants submitted they did not understand why they had to re-sign a copy. When asked to re-sign a copy at a meeting three weeks prior to the Children’s Court proceedings the applicants made a minor amendment to emphasise there were also obligations on the respondent towards carers; and

4. contrary to the submissions of the respondent, the applicants have at all times been willing to support restoration – the fact that they expressed concerns about the restoration and wanted to be considered as carers should restoration fail did not mean they did not support it. The respondent had even stated in its Care Plan, prepared for the Children’s Court restoration proceedings, that the applicants were supportive of restoration. The applicants contend their support for restoration did not change;

The respondent’s case

85. It is the respondent’s contention that the decision to remove the children from the applicants’ care and the decision to cancel the applicants’ authorisation is the correct and preferred decision.

86. The respondent submitted that the independent assessment of Ms Edwards identified concerns about the children’s placement with the applicants in that they could not adequately and safely meet the children’s needs during their upbringing. The respondent noted that Ms Edwards was not required for cross-examination and consequently her evidence remains unchallenged.

87. It is the respondent’s contention that the applicants were made aware of its concerns about psychological harm that they were causing to the children in their care. It was the cumulative effect of psychological harm over an extended period of time that caused the respondent concern. In this regard the respondent relied on the Child Protection Counselling Review dated 13 August 2015 which was unchallenged by the applicants.

88. The respondent contended that of concern is the applicants’ failure to accept, or acknowledge that their behaviour towards the children resulted in psychological harm. Furthermore, it was of concern that the applicants did not accept that their behaviour constituted a breach of the Code of Conduct which they continued to refuse to resign up until shortly before the hearing of this matter.

89. It was the respondent’s contention that the decision making process in regard to the removal of the children from the applicant’s care was appropriate. That process being that set out in the Extra-ordinary Minnesota Model was an appropriate decision making process in deciding to remove the children from the applicants’ care.

90. The respondent contended that a condition of authorisation, as outlined in clause 34 of the Care Regulation included a requirement that a carer must comply with a Code of Conduct for authorised carers. It was the respondent’s contention the applicants’ had failed to meet those requirements.

91. The respondent submits that in the event restoration should fail the applicants’ would not be a viable alternative as the children’s authorised carers because there is no evidence to indicate or suggest that the applicants’ have addressed any of the issues of concern, or acknowledged that such issues were indeed matters of concern.

Consideration

92. As we have noted, the decision the subject of review in this application is: (a) the decision to remove the children from the applicants’ care and (b) the decision to cancel the applicant’s authorisation. What is not the subject of review is the decision of the Children’s Court to restore the children to the birth mother. At the time of the adjourned hearing in this matter the restoration of the children to their birth mother was almost complete. It was the respondent’s contention that the transition was going well.

93. Dr Ainsworth, the Guardian ad Litem for the children who had been in the applicants’ care, in his submissions filed and served on 5 April 2016, did not support the return of the children to the care of the applicants. However, he was critical of the respondent’s decision to remove them from the applicants’ care in January 2016. In his opinion, there were insufficient grounds for the abrupt removal of the children and the secrecy involved in that decision. In his opinion, the sudden removal of the children was traumatizing for both the children and the applicants.

94. At the commencement of the hearing on 16 March 2016, Dr Ainsworth had advised that he had arranged, through the respondent, to meet with the children prior to the first hearing date. He was told that they would all be there. On his arrival at the pre-arranged meeting place, Dr Ainsworth, who had met the children previously during the earlier proceedings, was told that child B was not there – he was at a school camp, which must have been known to the respondent at the time the arrangements were made and yet nothing was said. Child C was present, as was child D. Dr Ainsworth said he did not seek to speak to the children as it was evident that child C was overwhelmed with anxiety.

95. In light of the 5 November 2015 orders of the Children’s Court and the almost completed transition of the children to their birth mother at the time of hearing, in our opinion, the appropriate order in regard to the decision of the respondent to remove the children from the applicants’ care is that this is the correct and preferable decision. However, we share Dr Ainsworth’s concerns about the abrupt removal of the children from the applicants’ care. We have dealt with these concerns in more detail below in the context of the applicants having caused psychological harm to the children while in their care.

96. The real issue in this matter is whether the decision to cancel the applicants’ authorisation is the correct and preferable decision. In this regard the principal factual matters in issue are:

1. whether the applicants were unwilling to work collaboratively with the respondent caseworkers and follow reasonable directions – this includes the reluctance to sign the Code of Conduct (unwillingness to work collaboratively); and

2. whether the applicants’ had caused and continued to cause psychological harm to the children resulting in the removal of the children from their care – this includes the alleged undermining of the restoration process and thereby causing psychological harm to the children in their care (psychological harm).

Unwillingness to work collaboratively

97. It is convenient to first deal with the applicants’ reluctance to re-sign the Code of Conduct, as this appears to be of greatest concern to the respondent.

98. As we have noted, clause 34 of the Care Regulation provides that a condition of a person’s authorisation is that he/she complies with the code of conduct approved by the Minister and published on the respondent’s website. That is, it is not a document a caseworker, or manager casework could amend. At the same time the Care Regulation does not contain a requirement that a copy of the applicable Code of Conduct must be signed by an authorised carer in order for it to apply. On the contrary the Care Regulation expressly provides that it applies from the time the person becomes an authorised carer. The purpose of the document is to set out what is expected of an authorised carer can expect from the designated agency (in this case the respondent).

99. While there is no legislative requirement that authorised carers countersign a copy of the applicable Code of Conduct, it cannot be doubted that, in accordance with sound administrative practices, it is a good practice to have an authorised carer countersign such a document as an acknowledgement of being aware of its contents and understanding what is required of them and what they can expect from the designated agency in their role as an authorised carer. Hence, it is a matter for the designated agency to determine when and how often it will ask an authorised carer to countersign a copy. In this case, other than by mere assertion that there was a requirement for authorised carers counter-sign a Code of Conduct each year, the respondent did not produce an existing administrative instruction or policy to support such an assertion.

100. We accept the applicants assert that they at no time refused to re-sign the Code of Conduct, or not to be bound by it. They signed a copy when they became an authorised carer in 2013. They acknowledge they were requested to sign a further copy during 2015 and that they were given a copy during a home visit sometime in the second half of 2015. Mrs C brought a copy of this document to the 26 November 2015 meeting she and Mr C had with Ms Carey and Ms Glenda Christopher at the local Community Services Centre. It was at that meeting Mrs C asked for the heading on page 4 of the Code of Conduct to be changed. The heading read “Authorised carers can expect to be” and the amendment proposed by Ms C was that it be changed to read “FaCS will support carers by.”

101. It was the evidence of Mr and Mrs C that they asked for the change because they felt they were not being heard or supported by the respondent in regard to their care of the children and the concerns they had about the children during the period of transition. The respondent’s response to the change was correct in the sense that the Code of Conduct could not be amended. However, in our view it failed adequately explain why it could not be changed. It also failed to question, or explore why the change had been requested. As a consequence, the relationship between the applicants and the officers of the respondent became even more adversarial. We do not believe this was entirely of the applicants making. While we are not critical of the officers of the respondent, we were left with the impression from the evidence of Ms Harrison and the material that was before us that the officers of the respondent were ill equipped to deal with the situation and may have felt intimidated and annoyed by the presence of the applicants’ advocate.

102. It is regrettable that the relationship between the applicants and the respondent caseworkers and manager casework became so adversarial in regard to this particular issue, which had been ongoing for almost the whole year. This is especially so when the Code of Conduct continued to apply by operation of law.

103. We recognise the respondent’s role in transitioning the children back into the care of their birth mother was unusually complex because of the children’s special needs and the fact that the children that were to be restored were in two different placements and they had been in those placements for up to four years. In our view, it cannot be said the applicants were unaware of the complexity. On the contrary, they sought to voice their concerns.

104. In our view, the respondent’s concerns about the applicants’ failure to sign a further copy of the Code of Conduct are overstated. When examined in context, we are satisfied that the applicants at no time suggested they were not bound by the terms of the Code of Conduct – what they were in effect seeking was some confirmation that they had the support of the respondent. Instead, with the insistence of a requirement to counter-sign a further copy of the Code of Conduct, the applicants came to believe their concerns were being ignored and that they were being singled out even though the RCU had found that the majority of the allegations made against them were not sustained.

105. While we find that the respondent’s concerns in regard to the applicants’ failure to sign a further copy of the Code of Conduct is overstated, we do not also find that the manner in which the applicants dealt with this issue was necessarily acceptable. They too had a responsibility to avoid an adversarial approach.

106. In this regard, we note the contents of the emails between Mrs C and the children’s caseworker – these were friendly and conversational. In her oral evidence, Ms Harrison acknowledged that they were friendly and conversational. She said she had not seen these before they were filed in these proceedings, by the applicants.

107. The other matters of concern to the respondent about Mr and Mrs C’s lack of co-operation were: (a) Mr C’s failure to participate in meetings with the respondent caseworkers and (b) Mr and Mrs C not to have any conversations with the children about restoration without the respondent being present and that they will behave in a manner that supports the restoration of the children to their birth mother.

108. In his evidence, Mr C said he did involve himself with the children in their activities. He said he was committed to being a “dad” to the children as he is with his own birth children. He said he and his wife are a team – where Mrs C does the talking and engaging with the respondent and other services. He said he does not talk but listens and attends meetings where he is asked to attend, but otherwise leaves it to Mrs C. Mr C was not required for cross-examination and we were left with the impression that he was a man of few words when it came to formalities and that he left this to his wife. However, that he cared and loved the children was not questioned by the respondent.

97. It was the evidence of both Mr and Mrs C that they did not speak to the children about restoration in their presence. We understand this to mean they did not express their concerns about the restoration and the progress thereof in front of the children. However, they did acknowledge that they spoke about it privately without the children being present. They said that while they endeavoured to talk without the children being able to overhear them, they acknowledged it was possible one of the children may have listened outside the door, but they were not aware of this.

98. It was the evidence of the applicants that they at no time undermined the restoration process. They said they had a good relationship with the birth mother of the children up until mid-July 2015. It was their evidence that the birth mother would regularly ask to speak to Mrs C during her weekly telephone contact with the children and she would also happily talk to her at access visits. However, after the applicants met with the respondent on 13 July 2015 that form of contact ceased. When they asked the birth mother why she did not speak to them anymore, she said she had been told by the respondent that they were stopping her getting the children back. The applicants’ evidence is that they were only concerned that the respondent provided proper support and communication for the birth mother.

99. The applicants’ evidence in regard to their support of the restoration process is not inconsistent with what is contained in the file note of the respondent in regard to the 13 July 2015 meeting where restoration was discussed for the first time. There is no evidence that the applicants failed to adhere to their undertaking not to inform the children. Nor in our view is the evidence of comments Mrs C is alleged to have made necessarily an active undermining of the restoration process. They can equally be construed as being an expression of concern. It is unclear to us what was expected of the applicants during this process and how they were to communicate their concerns and how they were to be dealt with.

100. Accordingly, on the material before the Tribunal we do not find that the applicants were intentionally unco-operative. That there was a breakdown in the relationship between the applicants and the respondent is not questioned, however, as we have already said, this was not entirely attributable to the conduct of the applicants.

Psychological harm

113. Five days after Ms Carey wrote to the applicants about the concerns that had been raised about their failure to sign a copy of the Code of Conduct, on 8 December 2015, Ms Harrison, Ms Glenda Christopher, Ms Jade Carey, Ms Raelyn Stinson and Lynese Norris met to discuss whether the children should “remain” in their current placement with Mr and Mrs C. In her oral evidence, Ms Harrison explained was that it was a joint decision of the meeting that the children should be removed from the care of the applicants, but it would not be implemented until after the children had spent the planned week with their birth mother after Christmas. The reason given for the delayed implementation of the decision was to “minimise emotional impact over the Christmas period.” As we have noted, it was also agreed that Mr and Mrs C would not be told of the decision to remove the children from their care until that time. We understand the children’s birth mother and the carer of child E were also not informed about the decision until later.

114. We note that the respondent’s psychologist, Ms Collette Erwin was not present at the meeting nor is it evident as to what material the meeting had before it.

115. There is no dispute that the respondent having supervisory responsibility for the placement of the children in the applicants’ care also had the power to make a decision to remove the children from the applicants’ care: Care Act section 140. It is the basis on which that decision was made that the applicants refute.

116. The notes prepared during the course of the meeting describe the conduct of the applicants that was of concern to the respondent officers. The conduct was described as disproportionate discipline of child C and child B (i.e. toys being removed from child C and child B not permitted to go to camp), lack of appropriate recreational activities for the children, undermining contact by sending the children to contact without towels, knowing they were swimming and telling the children the wrong time for contact causing the children to be worried about being late home – Mrs C refusing to meet the case worker (Ms Carey) in the office - Mrs C always bringing an advocate with them for meetings showing they don’t want to have open dialogue with the respondent and Mr and Mrs C reinforcing mistrust of the respondent by failing to sign the Code of Conduct.

117. In her oral evidence, Ms Harrison said the decision making process used at the meeting was the Extra-Ordinary – Minnesota Model. We requested a copy of that model. We were provided with a 43 page document entitled “Module 2 - Neglect, Psychological and Emotional Harm – CPD Course Readings.” Other than to point to the table of Behavioural Forms of Emotional and Physical Abuse, at pages 32 to 34 of the Module, Ms Harrison was unable to explain to us how this particular Model/Module was used to make a decision to suddenly remove the children, without notice, when the children had been in the applicants’ care for almost four years and were in the process of being transitioned into the care of their birth mother.

118. The table of Behavioural Forms lists a number of parental behaviour patterns/types giving rise to abuse (i.e. rejecting, terrorising, ignoring, isolating and corrupting) and how these behaviour patterns manifest themselves where the child is an infant, a toddler, a school aged child and an adolescent. When asked which behavioural patterns in this table were applicable to the applicants, Ms Harrison said they were cumulative from the time the children were placed into the applicants’ care. However, Ms Harrison could not point to a specific incident that gave rise to psychological harm to the children in the months prior to 8 December 2015. What is evident is that the respondent found it difficult to work with the applicants. That difficulty, as we have noted, was not entirely of the applicants making.

119. As noted by the applicants, in deciding to remove the children from the applicants’ care, the respondent primarily relied on historical complaints made against them, the majority of which were found to be not sustained by the RCU, together with the other matters referred to in paragraph 15 above. Notwithstanding the applicants’ concerns, we have already found that, as at the date of hearing, the decision of the respondent to remove the children from the applicants’ care was the correct and preferable decision and should be affirmed. The question is whether these historical complaints, the applicants alleged failure to co-operative and their alleged undermining of the restoration plan were a basis to cancel the applicants’ authorisation.

120. As we have noted, clause 42 of the Care Regulation sets out the grounds on which the respondent, as a designated agency, may cancel a person’s authorisation. A breach of the Code of Conduct is a ground for cancellation as it forms a condition of the person’s authorisation: see Care Regulation, clause 34(4) and clause 42(b) and (c). A failure to comply with a written direction of the designated agency is also a ground for cancellation: see Care Regulation, clause 42(d).

121. In this matter the respondent has not identified the specific grounds on which it relies. However, we assume it is clause 42(b), (c) and (d) in that the applicants’ have breached the Code of Conduct in failing to provide a care environment in which the children were not exposed to psychological abuse and a failure to support the children to feel safe and develop a sense of security etc. We also assume the respondent relied on the applicants’ alleged failure to re-sign a copy of the Code Conduct as being a breach of that Code or alternatively, a failure to comply with a written direction to re-sign a copy.

122. For the reasons we have already given, in our view, the respondent has failed to demonstrate that the conduct of the applicants was such that they caused psychological harm to the children, that they breached the Code of Conduct, or failed to comply with a written direction. In regard to the former, the RCU had found the historical allegations of psychological abuse were not sustained. The applicants also provided a number of references that attest to the caring manner in which the applicants’ cared for the children. While some of these might be viewed as self-serving, Ms Harrison did not point to any further incidents of this kind.

123. At no time did the respondent give a written direction to re-sign the Code of Conduct, nor was there a legislative requirement to do so. As we have noted, the applicants’ hesitation to re-sign the document was because they were seeking an indication of support from the respondent. Instead the relationship between the applicants and the respondent caseworkers continued to deteriorate.

124. We accept that there might have been some issues the applicants needed to address during the period of transition. However, they were not given an opportunity to do so. Nor are we able to find that these issues were such that they warranted the cancelation of their authorisation on one or more of the grounds set out in clause 42 of the Care Regulations.

125. Accordingly, we find that the decision of the respondent to cancel the applicants’ authorisation is not the correct and preferable decision.

126. In making this finding, we make no adverse findings concerning the recommendations of Ms Edwards about the future safety, welfare and well-being of the five siblings. The transition process, in effect, was an implementation of those recommendations. The recommendations of Ms Edwards, however, did not deal with the applicants’ authorisation as out-of-home carers.

Conclusions in regard to the application for review

127. For the reasons set out above, we have found that as at the date of hearing, the decision of the respondent to remove the children from the care of the applicants is the correct and preferred decision and the appropriate order is to affirm that decision. We have noted the applicants did not dispute that.

128. For the reasons set out above, we have found that as at the date of hearing, the decision of the respondent to cancel the applicants’ authorisation is not the correct and preferred decision. Hence the appropriate order is to set aside that decision. The effect of such an order is that the applicants’ authorisation as out-of-home carers is restored. Whether the respondent chooses to place any further children with the applicants is a matter for the respondent.

Costs

129. The applicants’ application for costs is made primarily on the basis of respondent’s failure to adhere to the undertaking it gave in the earlier proceedings (file no. 1510391) not to remove the children from the applicants’ during the transition period to their birth mother’s care. It was on the basis of that undertaking that the applicants withdrew their application for review before the Tribunal and willingly participated in support of the respondent in the Children’s Court proceedings.

130. The applicants’ contend that despite their co-operation, the respondent did not adhere to its undertaking. Instead, it was submitted, the respondent caseworkers, through stealth and deception, removed the children from their care without a proper basis. The decision to cancel their authorisation was similarly made without any proper basis.

131. The applicants essentially contend that, contrary to the undertaking that was given, the respondent’s subsequent unjustified removal of the children amounted to special circumstances warranting an order for costs in their favour in these proceedings. That is, had the respondent adhered to the undertaking it gave, these proceedings would not have been necessary and the applicants would not have expended any costs in bringing these proceedings.

132. The respondent contends that the respondent has at all times acted properly in the interest of the children and there is no basis on which an award for costs could be made.

133. The Tribunal’s power to award costs is set out in section 60 of the Civil and Administrative Tribunal Act 2013 (NCAT Act). That section is in the following terms:

60 Costs

(1) Each party to proceedings in the Tribunal is to pay the party’s own costs.

(2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.

(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following:

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,

(f) whether a party has refused or failed to comply with the duty imposed by section 36 (3),

(g) any other matter that the Tribunal considers relevant.

(4) If costs are to be awarded by the Tribunal, the Tribunal may:

(a) determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.

(5) In this section: "costs" includes:

(a) the costs of, or incidental to, proceedings in the Tribunal, and

(b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.

134. As can be seen from the above, the ordinary rule is that each party to proceedings before the Tribunal pay their own costs. Subsection 60(2) gives the Tribunal a wide discretion to award costs where it is satisfied that there are “special circumstances” that warrant an award of costs. That is, the Tribunal must be satisfied there are “special circumstances” and they are such to warrant an award of costs.

135. What constitutes “special circumstances” is one or more of the matters set out in subsection 60(3) of the Act.

136. The applicants’ contend that the earlier proceedings are “proceedings giving rise” to this application as provided in subsection 60(5)(b) of the NCAT Act in that there is a clear nexus between those proceedings and these proceedings.

137. In our view, the applicant has misconstrued the ordinary meaning of the words in subsection 60(5). That subsection defines what is meant by the word “costs”. Paragraph 60(5)(a) defines costs to include the costs of, or incidental to the proceedings that are before the Tribunal. Paragraph 60(5)(b) defines costs to include costs of, or incidental to “the proceedings giving rise to the application, or appeal.” In this case, the earlier proceedings did not give rise to these proceedings. What gave rise to these proceedings was the respondent’s decision of 8 December 2015 to remove the children from the applicants’ care and the subsequent decision to cancel their authorisation. It was not the earlier proceedings – these were finalised when the applicants withdrew their application for review of the earlier decision to restore the children to the care of their birth mother following the report of Ms Edwards. The applicants’ application for costs was also finally determined. Had they appealed that decision and were successful in their appeal, the Appeal Panel would have had power under subsection 60(5)(b) to determine an application for costs in the appeal and the earlier proceedings as these proceedings gave rise to the appeal proceedings.

138. While we have found that the respondent’s decision to cancel the applicants’ authorisation should be set aside and we have expressed some concerns about the abrupt removal of the children in the applicant’s care, we do not find that the respondent has conducted itself in these proceedings in a manner that has disadvantaged the applicants. On the contrary the respondent and the applicants each co-operated with the Tribunal to give effect to the guiding principle in subsection 36(1) of the NCAT Act.

Orders

139. On the basis of the findings we have made as set out in paragraph 127 and 128 above we order:

1. The decision of the respondent, made on 8 December 2015, to remove the children in the applicants’ care on 5 January 2016 is affirmed.

2. The decision of the respondent made, on 13 January 2016, to cancel the applicants’ authorisation as out-of-home carers is set aside.

3. The applicants’ application for costs is refused.

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