CLN v Wandiyali ATSI Inc

[2016] NSWCATAD 229

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CLN v Wandiyali ATSI Inc [2016] NSWCATAD 229
Hearing dates:	27 April 2016 and 4 July 2016
Date of orders:	12 October 2016
Decision date:	12 October 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Anderson, Senior Member R Royer, General Member
Decision:	(1) The decision made on 25 January 2016 to place the children the subject of the decision into alternative authorised care is affirmed. (2) The decision made on 25 January 2016 to suspend the applicants’ authorisation as authorised carers is set aside and in substitution it is determined that the applicants’ authorisations as authorised carers are cancelled. (3) The application filed 24 February 2014 for review of the decision is otherwise dismissed.
Catchwords:	ADMINISTRATIVE LAW-review under section 63 Administrative Decisions Review Act 1997-decision made under section 245 Children and Young Persons (Care and Protection) Act 1998 (NSW) to remove children from the care of their authorised carers - weight to be placed upon provisions of section 13 Children and Young Persons (Care and Protection) Act 1998- evidence of Aboriginal cultural connection - what the correct and preferable decision is having regard to the material before the Tribunal – children’s best interests enhanced by current placements- decision affirmed in part – substituted decision made to cancel authorisation.
Legislation Cited:	Administrative Decisions Review Act 1997(NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Children and Young Persons (Care and Protection) Regulations 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil Procedure Act 2005 (NSW), s 71 Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 7 and 8 Uniform Civil Procedure Rules 2005 (NSW), Schedule 7
Cases Cited:	AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028 Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 PR v Department of Community Services [2009] NSWADT 277 Re Kerry (No 2) [2012] NSWCA 127 Roberts v Balancio (1987) 8 NSWLR 436 YG & GG v Minister for Community Services [2002] NSWCA 247
Category:	Principal judgment
Parties:	CLN and CLO (Applicants) Wandiyali ATSI Inc (Respondent)
Representation:	Solicitors: CLN and CLO (Applicants in person) Care Legal (Respondent)
File Number(s):	1610119
Publication restriction:	Disclosure of the name of the applicants and the name of any child referred to in the material before the Tribunal is prohibited. Note: the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

1. The applicants are known as ‘CLN’ and ‘CLO’ in this application and in these reasons in order to protect their identity and the identity of the children who are the subjects of the application before the Tribunal.

2. An order was made in these proceedings on 27 April 2016 under section 64 of the Civil and Administrative Tribunal Act 2013 (NSW), restricting publication of information which will identify the applicants, any children, non-professional witnesses, or evidence received in the Tribunal or in relation to the proceedings which is likely to identify those persons: see also BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126 at [3]; see also to similar effect section 105 Children and Young Persons (Care and Protection) Act 1998 (NSW) which prohibits publication of the children’s identity because of their involvement in the Children’s Court and orders made under that Act; cf., section 7 Court Suppression and Non-Publication Orders Act 2010 (NSW). The order is made on the basis that such an order is in the public interest, including that reflected in s 105 of the Children and Young Persons (Care and Protection) Act, and s 71 of the Civil Procedure Act 2005 (NSW), which significantly outweighs the public interest because the legislation under which this application is made requires the suppression of those identities and the use of pseudonyms will thereby advance the interests of the children.

3. The application seeks to review a decision made on 25 January 2016 to suspend the applicants’ authorisation as authorised carers and place the children that were in their care at that time into respite care, and ultimately in other placements. The 3 children are now aged 8, 6, and 1 year 11 months. An internal review was completed on 14 March 2016. The review essentially affirmed the decisions.

Legislative provisions

4. 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.

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

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

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

...

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

...

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

(a) the preparation of a permanency plan, or

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

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

6. In this matter Wandiyali ATSI Inc is the relevant decision maker. The decision is one which is described by subsections245(1)(a) and 245(1)(c) of the Children and Young Persons (Care and Protection) Act. The additional provision not referred to in the decision of AQY & AQZ v Administrative Decisions Tribunal of New South Wales extracted above and applicable in this matter is:

“245(1)…

(a) a decision of the relevant decision-maker to suspend a person’s authorisation as an authorised carer or to impose conditions on a person’s authorisation…”

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

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

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

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

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

10. A specific provision in relation to the children the subject of this application which is relevant to their placement is section 13 of the Children and Young Persons (Care and Protection) Act 1998. This section embodies what is called the ‘Aboriginal and Torres Strait Islander placement principle’.

11. The evidence before the Tribunal shows that orders of the Children’s Court provide for the allocation of parental responsibility to the Minister until the children attain the age of 18. That order was made on 12 February 2015. The children were removed from the care of their parents on 1 August 2014 due to exposure to domestic violence, neglect, parental drug use and alcohol abuse, and parental mental health issues. The children are full siblings and are all Aboriginal. It is proposed that the children are to be transitioned into the care of Aboriginal carers. This placement is considered to also give effect to the placement principle in section 13 of the Children and Young Persons (Care and Protection) Act by placing the children in an Aboriginal family. It is important to have regard to the text of section 13 Children and Young Persons (Care and Protection) Act which is as follows:

“13 Aboriginal and Torres Strait Islander Child and Young Person Placement Principles

(1) The general order for placement

Subject to the objects in section 8 and the principles in section 9, an Aboriginal or Torres Strait Islander child or young person who needs to be placed in statutory out-of-home care is to be placed with:

(a) a member of the child's or young person's extended family or kinship group, as recognised by the Aboriginal or Torres Strait Islander community to which the child or young person belongs, or

(b) if it is not practicable for the child or young person to be placed in accordance with paragraph (a) or it would not be in the best interests of the child or young person to be so placed--a member of the Aboriginal or Torres Strait Islander community to which the child or young person belongs, or

(c) if it is not practicable for the child or young person to be placed in accordance with paragraph (a) or (b) or it would not be in the best interests of the child or young person to be so placed--a member of some other Aboriginal or Torres Strait Islander family residing in the vicinity of the child's or young person's usual place of residence, or

(d) if it is not practicable for the child or young person to be placed in accordance with paragraph (a), (b) or (c) or it would be detrimental to the safety, welfare and well-being of the child or young person to be so placed--a suitable person approved by the Director-General after consultation with:

(i) members of the child's or young person's extended family or kinship group, as recognised by the Aboriginal or Torres Strait Islander community to which the child or young person belongs, and

(ii) such Aboriginal or Torres Strait Islander organisations as are appropriate to the child or young person.

Note: The placement principles set out in this section also apply to the making of guardianship orders in relation to Aboriginal and Torres Strait Islander children and young persons (see section 79A (3) (c)).

(2) Relevance of self-identification and expressed wishes of child or young person

In determining where a child or young person is to be placed, account is to be taken of whether the child or young person identifies as an Aboriginal or Torres Strait Islander and the expressed wishes of the child or young person.

(3) Child or young person with parents from different Aboriginal or Torres Strait Islander communities

If a child or young person has parents from different Aboriginal or Torres Strait Islander communities, the order for placement established by paragraphs (a), (b), (c) and (d) of subsection (1) applies, but the choice of a member or person referred to in those paragraphs is to be made so that the best interests of the child or young person will be served having regard to the principles of this Act.

(4) Child or young person with one Aboriginal or Torres Strait Islander parent and one non-Aboriginal and Torres Strait Islander parent

If a child or young person has one Aboriginal or Torres Strait Islander parent and one non-Aboriginal and Torres Strait Islander parent, the child or young person may be placed with the person with whom the best interests of the child or young person will be served having regard to the principles of this Act.

(5) If a child or young person to whom subsection (4) applies:

(a) is placed with a person who is not within an Aboriginal or Torres Strait Islander family or community, arrangements must be made to ensure that the child or young person has the opportunity for continuing contact with his or her Aboriginal or Torres Strait Islander family, community and culture, or

(b) is placed with a person who is within an Aboriginal or Torres Strait Islander family or community, arrangements must be made to ensure that the child or young person has the opportunity for continuing contact with his or her non-Aboriginal and Torres Strait Islander family, community and culture.

(6) Placement of child or young person in care of person who is not an Aboriginal or Torres Strait Islander The following principles are to determine the choice of a carer if an Aboriginal or Torres Strait Islander child or young person is placed with a carer who is not an Aboriginal or Torres Strait Islander:

(a) Subject to the best interests of the child or young person, a fundamental objective is to be the reunion of the child or young person with his or her family or Aboriginal or Torres Strait Islander community.

(b) Continuing contact must be ensured between the child or young person and his or her Aboriginal or Torres Strait Islander family, community and culture.

These principles are subject to subsection (2).

(7) Exceptions: emergency placements and placements of short duration Subsection (1) does not apply to:

(a) an emergency placement made to protect a child or young person from serious risk of immediate harm, or

(b) a placement for a duration of less than 2 weeks.

(8) Where an emergency placement is made to protect an Aboriginal or Torres Strait Islander child or young person from serious risk of immediate harm, the Director-General must consult with the appropriate Aboriginal or Torres Strait Islander community as soon as practicable after the safety of the child or young person has been secured.

Note: In the course of any consultation under this Part, the Director-General must have regard to the right of Aboriginal or Torres Strait Islander children and young persons and their families to confidentiality.”

12. The provisions of the Children and Young Persons (Care and Protection) Act subsections 13(4), 13(5) and 13(6) is relevant to these children because it is the fact that the children have an Aboriginal mother and grandmother who identify as members of an identifiable and named tribe referred to in the children’s care plans. The effect of those provisions is that the children are subject to the general order for placement and section 13 of the Children and Young Persons (Care and Protection) Act applies subject to an assessment of which option best promotes their safety, welfare and well-being.

13. The provisions of the care plan in respect of the children were not embodied in the order made by the Children’s Court and are therefore not enforceable and do not impinge on the jurisdiction of the Tribunal: AQY & AQZ v Administrative Decisions Tribunal of New South Wales(supra). The requirements of the legislation are required to be followed, where possible giving effect to placement principle and ultimately giving paramountcy to the children’s safety welfare and well-being, so that placement occurs with an Aboriginal family in the order prescribed as the mandated options if it is also safe and in the children’s welfare and well-being.

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

63 Determination of administrative review by Tribunal

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

15. Chapter 8 of the Children and Young Persons (Care and Protection) Act makes provision for the out-of-home care of children and the authorisation of authorised carers to provide out-of-home care to children. The objects of Chapter 8 are in section 134 which is:

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.

16. Under the Children and Young Persons (Care and Protection) Act section 137(2)(e) provides that regulations may be made including prescribing events, the occurrence of which, raise a presumption that an authorisation is to be cancelled, as follows:

137 Authorised carers

(1) In this Act,

"authorised carer" means:

(a) the principal officer of a designated agency, or

(b) a person who, in accordance with the regulations, is authorised as an authorised carer by a designated agency, or

(c) a person who, in accordance with the regulations, is otherwise authorised as an authorised carer, or

(d) subject to the regulations, a person who is assessed to be suitable to be approved to adopt a child under section 45 of the Adoption Act 2000 .

(1A) If, in relation to a child or young person who is the subject of a care order, the Children’s Court has accepted that there is no realistic possibility of the child or young person being restored to his or her parents, a parent of the child or young person cannot:

(a) be given care responsibility for the child or young person, or

(b) be authorised by a designated agency as an authorised carer in respect of the child or young person,

unless the decision of the Court that there is no possibility of restoration is rescinded under section 90.

(2) The regulations may make provision for or with respect to the following:

(a) the making and determination of applications for authorisation,

(b) the authorisation of persons, by designated agencies or otherwise, as authorised carers,

(b1) the authorisation of persons, by designated agencies, as authorised carers on a provisional basis,

(c) the imposition of conditions of an authorisation, including, but not limited to:

(i) the maximum number of children and young persons who may be placed in the care of an authorised carer (including the maximum number in specified age groups), and

(ii) the identification or description of children and young persons who may be placed in the care of an authorised carer,

(d) the period for which an authorisation remains in force,

(e) the cancellation or suspension of an authorisation, including prescribing events, the occurrence of which, raise a presumption that an authorisation is to be cancelled.

(3) In the case of an authorised carer who is authorised by a designated agency, it is a condition of the authorisation that the carer must, as soon as reasonably practicable, notify the designated agency:

(a) if any person (other than the carer) resides on the same property as the carer for 3 weeks or more, or

(b) if a person residing on the same property as the carer attains the age of 18 years.

Note : See section 10 of the Child Protection (Working with Children) Act 2012 which requires that an adult person who resides on the same property as an authorised carer for more than 3 weeks must hold a working with children check clearance.

(4) For the purposes of this section:

"reside on a property" has the same meaning as in the Child Protection (Working with Children) Act 2012 .

17. Clause 42 of the Children and Young Persons (Care and Protection) Regulations 2012 (NSW) provides:

42 Cancellation or suspension of authorisations by designated agencies

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

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

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

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

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

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

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.

The Evidence before the Tribunal

18. The applicants relied upon the following documentary material which became exhibits as follows:

1. Affidavit of the applicant CLN dated 21 April 2016- Exhibit A1;

2. Affidavit of the applicant CLO dated 21 April 2016- Exhibit A2;

3. Document dated 22 April 2016 – a letter faxed to the Tribunal- Exhibit A3;

4. Report by Grant Osland, Psychologist, dated 30 June 2016- Exhibit A4;

5. Notice of Conditions in relation to the respondent dated 6 January 2016 –Exhibit A5;

6. School reports for 2 of the children for Semester 1, 2016 – Exhibit A6.

19. The respondent relied upon the following material:

1. Bundle of Documents filed pursuant to section 58 Administrative Decisions Review Act- Exhibit R1;

2. Affidavit of the Out-of-Home Care Manager Ben McLelland affirmed 11 April 2016 and filed 14 April 2016- Exhibit R2;

3. Affidavit of Steve Kilroy dated 26 April 2016 which simply states that he has never sworn or used offensive language to CLN – Exhibit R3;

4. Recommendation and Action Plan dated 22 April 2016- Exhibit R4;

5. Behavioural Assessment/Intervention Support Plan dated 22 April 2016- Exhibit R5;

6. File Note dated 29 January 2016- Exhibit R6;

7. Letter from Wandiyali informing the applicants of the internal review outcome – Exhibit R7;

8. Bundle of Documents produced under Summons relied upon by the respondent – Exhibit R8;

9. Affidavit of Mr McLelland affirmed 1 July 2016 – Exhibit R9;

10. Certificate of Participation in “Orientation to Mental Health” awarded to Mr McLelland on 17 November 2010 by the Mental Health Coordinating Council Inc; Certificate IV in Mental Health dated 21 December 2011 and Adult Mental Health First Aid Course dated 13 December 2010for Mr McLelland – Exhibit R10;

11. Medicare Records for the applicants including PBS records- Exhibit R11;

12. Documents produced under Summons from the Department of Family and Community Services comprising Child Protection records concerning the applicants – Exhibit R12.

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

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

22. The hearing occurred over the course of 2 days because of the number of issues which were raised, but with a clear indication that the matter should complete on the second day. The matter was completed within that time frame with the issues of proportionality and the guiding principle in mind. Procedural fairness was also a relevant consideration and the parties were able to present their cases fairly and as completely as possible. The applicants represented themselves during the hearing and appeared to be competent to represent their own interests. The applicants were also accompanied by a support person who assisted them.

23. The applicants gave evidence and were cross-examined as were a number of other witnesses. The whole of the evidence has been considered by the Tribunal in coming to its decision. Some evidence will be referred to specifically because of its direct relevance to the determination of the issue the Tribunal has to determine, which is making the correct and preferable decision. The focus is on the children rather than the applicants or any other persons, because the paramountcy principle applies to any decision made concerning the placement of the children and authorisation of people who may care for them.

24. The applicants were previously involved in Family Court proceedings in relation to one of their biological children. The outcome of those proceedings was not favourable to the ambitions of the applicants. It would appear that in particular the male applicant reacted badly and inappropriately to the outcome of that decision. This information was not known to the decision-maker at the time of making the decision which is the subject of this review. As a result of the new information including other more recent information from the police record of occurrences where it was reported that the male applicant behaved inappropriately and aggressively, the Tribunal was invited in closing submissions to set aside and cancel the authorisation of the applicants as authorised carers. The Tribunal has the power to do so pursuant to section 63of the Administrative Decisions Review Act.

The decision under review

25. The 3 children who were placed in the care of the applicants are legally under the parental responsibility of the Minister, Family and Community Services, by reason of a care order made in the Children’s Court on 12 February 2015.

26. The children were placed into the care of the applicants on 14 August 2015. Prior to this time the children had been placed with temporary carers who were friends with the applicants. The applicants had been providing informal (and possibly unauthorised) respite care to the children while they were in this placement. The children were in this placement from 1 December 2014 until 21 May 2015. The children were removed from this placement due to abuse in care allegations reported to Wandiyali.

27. The applicants applied to become authorised carers with Wandiyali on 31 March 2015. The male applicant CLN referred in the application process to the fact that he was not sure whether his great, great, grandfather was Aboriginal or not. The male applicant was not brought up in the Aboriginal culture. There has been no documentation produced to confirm that the male applicant identifies as Aboriginal or has been accepted by the Aboriginal community as an Aboriginal person. The female applicant CLO is not Aboriginal, although it was suggested that she may have Aboriginal heritage during the course of the hearing. There is no proof that the female applicant identifies as Aboriginal nor has she been accepted by the Aboriginal community as an Aboriginal person. In fact, during the course of the hearing the female applicant appeared dismissive of the possibility that she has Aboriginal heritage and stated that she does not pursue it with her family. Some of the comments made by the applicants about Aboriginality were not supportive of the positive impact acknowledgement of Aboriginal identity may have for persons of Aboriginal heritage.

28. During the course of the application process to become authorised carers, the applicants were provided with the Wandiyali Code of Conduct for authorised carers, Wandiyali out of home care foster carer agreement, and the foster carer checklist confirming that they had received and read certain documents such as the carer agreement form and the carer’s Code of Conduct.

29. The initial placement of the children with the applicants was considered to be an emergency placement due to the allegations of abuse in care concerning the children’s former carers.

30. On 25 January 2016 the female applicant telephoned Wandiyali in a distressed state and advised that one of the children wanted to leave the placement. There were other conversations that day where the female applicant sounded distressed. On the same day, the male applicant directly contacted the Department of Family and Community Services. Information was provided to Ms Kelly at Wandiyali that the family were in “crisis” with that child and that the carers required a result by “midday or else”. A decision was made to take the 3 children to a respite placement and suspend the applicants’ authorisation as authorised carers.

31. The female applicant telephoned Ms Kelly to say that the children were being dropped off at a particular Family and Community Services office, but when Ms Kelly had left the office a phone call was received that the children were in fact dropped off at a different Family and Community Services office. A letter was provided to the male applicant and it was orally explained to both applicants the reasons for the decision and the content of the letter. Ms Kelly was told by the male applicant a number of times that he would be taking Wandiyali to the Tribunal. The male applicant refused to hand over more than 2 tablets of medication for one of the children despite a request of Ms Kelly that he provide all the medication. The male applicant claimed at one point to not to know where the medication was, but at another point stated he would not hand over the medication because he did not trust Wandiyali. The caseworkers were required to drive with the children back to the applicants’ home. The male applicant’s behaviour during this process was completely unacceptable by demanding that a Wandiyali caseworker get out of the car, yelling at workers and pointing his finger in a workers face, in the presence of the children and sufficient for them to be able to observe this behaviour.

32. The male applicant was directed to attend a psychological assessment due to the concerns which were raised about his mental health from material provided to Wandiyali, and Mr David Nagle, psychologist, prepared a report dated 27 January 2016.

33. The report prepared by Mr Nagle recommended psychological treatment, competency-based carer training with emphasis on conflict management and effective communication skills, training in relation to behaviour management of children with difficult to manage behaviours, and transfer of the applicants from Wandiyali due to a breakdown in the relationship which is beyond mediation. The psychologist acknowledged that the male applicant does not suffer from a current mental health difficulty, but his behaviours are of a person who is not able to acknowledge his shortcomings, and “has a hostile, relentless way of conflict management and that his behaviours are of a narcissistic nature.” If the recommendations are not completed satisfactorily the male applicant may “cause psychological injury and/or teach inappropriate communication and conflict management to children within his family home.”

34. The applicants attended a face-to-face meeting at the Wandiyali office on 1 February 2016 with a support person in attendance. The applicants requested an internal review of the administrative decisions made on 25 January 2016. The internal review affirmed the decision to suspend the applicants’ authorisation and adopted the recommendations made by Mr Nagle in his report of 27 January 2016.

Reasons for the decision

35. The letter to the applicants dated 25 January 2016 contained the reasons for the decision(s) as follows:

Your authorisation as authorised carers has been suspended due to your failure to comply with the Windayali Children’s Services Out of Home Care Code of Conduct, including:

● Failure to work in a respectful, cooperative and positive manner with Wandiyali OOHC Caseworkers, Out Of Home Care Manager and Managers. (Section Overview of Commitment Part A)

● The Wandiyali CEO and Out Of Home Care Manager have previously tried to organise meetings with you to discuss issues. You have stated you had a busy schedule so they offered to have meetings at night and on weekends and these offers have been rejected by you

● Intimidation, abusive behaviour, bullying, and threatening behaviour toward Wandiyali staff

● Failure to be professional in your dealings with others

● Failing to act in a manner that will not bring the organisation into disrepute.

● Breach of confidentiality (concerning personal information about the children in your care) at John Hunter Hospital on 15 January 2016.

Further, under chapter 16A of the NSW Children and Young Persons (Care and Protection) Act 1998 Wandiyali has received information that has raised concerns about [the male applicants] mental health and the impact of this on your capacity to care for children.

Evidence of the factual circumstances

36. The factual matters upon which the reasons relied occurred following the time of the children’s placement with the applicants up until their placement with other carers. Matters which have occurred or have been discovered after that time are appropriately taken into account to determine the correct and preferable decision at the time of the review.

37. On 19 November 2015 the caseworker returned the children to the applicants’ home after a contact visit with their birth father. It was reported that the male applicant spoke aggressively towards the caseworker. The male applicant was sitting at the front door of his house with his arms crossed and told the caseworker his views on foetal alcohol syndrome, which he believed the boys had suffered after watching a program on the television about it. The male applicant spoke about an incident which had occurred at school with the oldest child getting into trouble and said that the caseworker was not providing sufficient support to the applicants about that incident.

38. During the visit the caseworker said that she had emailed the school about the incident, arranged for the female applicant to attend a stress management course, arranged for the 2 older children to be looked after, spoken to the female applicant about strategies to deal with misbehaviour at school by the oldest child, and strategies on how to talk with the oldest child about the situation. The male applicant repeated that the caseworker was not being supportive and the situation was not good enough. The male applicant became louder and continued to the point where the caseworker stated that she felt attacked by the male applicant. The male applicant repeatedly said the responses by the caseworker were not good enough and he wanted a more experienced caseworker. The male applicant accused the caseworker of not caring for the children. It was reported that the female applicant who had been silent during the visit said to the male applicant: “Leave her alone, she is trying, she can’t just make things happen. Look you have made her cry.” The male applicant stated “good” and continued to speak in a loud and aggressive tone. The children were at the back of the house with the applicants’ biological children and entered the sitting room where the adults were, but were asked to leave. The caseworker noted that it was evident that the children were aware a tense situation was happening.

39. The level of support which was being provided to the applicants was said to be more than many other carers received. After this incident, the caseworker returned to her office very upset, and was sent home. Mr McLelland was of the view at this time that it may be appropriate to suspend the care authorisation of the applicants. The caseworker indicated however, that she would try to continue to work with the applicants after the incident to support them caring for the boys. On 23 November 2015 Mr McLelland spoke to the male applicant by telephone. Mr McLelland told the applicant that he was not happy about the home visit and that it was not appropriate to verbally abuse staff. The male applicant defended his actions and stated that the caseworker had “offended him in his own home.”

40. Mr McLelland sought to organise a meeting at the office, told the male applicant that his actions were not appropriate, and informed the male applicant that he was thinking of suspending his carer status due to concerns about the male applicant’s behaviours and the fact that he won’t listen to anyone.

41. Mr McLelland made a note at the time that the male applicant did not listen to any of Mr McLelland’s responses. At the end of the conversation after about an hour on the telephone Mr McLelland spoke with the female carer. It was acknowledged by the female carer that the male carer “gets on a topic and doesn’t let it go” but she could “bring him around”. Mr McLelland made it clear that CLN’s actions and behaviour were jeopardising the placement. It was made clear that the male applicant was not to contact the caseworker and the female applicant could contact the caseworker if she needed anything.

42. Attempts were made to arrange meetings with the male applicant CLN to address his many concerns which were relayed by emails, phone calls, text messages which all required immediate action. Those attempts were refused because the male applicant stated he was too busy with his business to attend at the office. The male applicant made it clear that he wanted the meetings to occur on his terms.

36. In January 2016 there was an incident at a public hospital involving the male applicant and a Wandiyali staff member who was admitted to hospital at that time. The applicants’ biological son was involved in a car accident and was placed in the bed opposite the caseworker. The male applicant began to complain about Wandiyali. The applicant said he was going to take Mr McLelland to court for referring to the fact that he had a mental health issue. The male applicant continued to talk inappropriately to the caseworker while she was in the hospital bed. The male applicant also said that he would be leaving Wandiyali but taking the boys with him to another agency. The carer said about this incident that the caseworker approached him.

37. After the applicants were approved as authorised carers information was received from the police providing an accurate record of involvement by the applicants with the police. It was revealed that there were 88 events and a number of concerns were raised. It was said by Mr McLelland that had those concerns and events had been known prior to assessing the applicants, they would not have been approved as authorised carers. In answer, the applicants state that their previously provided police records which revealed transgressions for entering enclosed lands and breach or contravene an AVO prohibition/restriction. The National Police Certificate for each of the carers, however, does not record the circumstances of each matter.

38. The male applicant has been prescribed Amitriptyline for a number of years. This is a type of antidepressant used to treat mental illness. In addition, the male applicant has been prescribed significant quantities of oxycodone which is an opiate used to treat pain: Exhibit R11. In the hospital notes which were produced is recorded that the male applicant was concerned about addiction to opiates from prescribed pain medication because he had been addicted to opiates in the past: Exhibit R8. Also there is a history of threatening self-harming behaviour on the part of both applicants. The male applicant has been Scheduled under the Mental Health Acton 26 April 1995. This information was not provided to the respondent by the applicants.

39. There are complex family dynamics in the applicants’ family which are referred to in detail in the Family Reports provided to the Family Court in relation to the dispute over residence of their adolescent biological child: Exhibit R8. Final orders were made in the Family Court on 20 September 2013 for their 15-year-old son to reside with his maternal grandparents. At the time of delivery of judgment the male applicant yelled and swore in the courtroom at the Family Court Justice who heard and determined the matter. The male applicant said “fuck you” on multiple occasions. The male applicant also said to the Justice: “I hope you rot in hell.” In an email sent to the Justice’s Associate the male applicant stated that he hoped “that the next victim of [the maternal grandfather] will be the judge and she gets sexually abuse by him (sic)”. The male applicant also called the Justice in an email “a piece of shit. I will be complaining and also exposed (sic) her to the media.” The respondent became aware of these matters during the course of this application for review.

40. On 16 December 2015 the respondent received information from Family and Community Services pursuant to a request for information exchange under the provisions of Chapter 16A of the Children and Young Persons (Care and Protection) Act concerning a previous risk of significant harm report about the applicant’s son who was refusing to return home because he alleged the male applicant had hit him. The information included a report that the son informed police that if he was forced to return home he would run away. The son was interviewed and the male applicant attended the Community Services Centre for the Department of Family and Community Services, despite being requested not to so attend. The male applicant was verbally abusive towards the caseworker. The male applicant was reported to have made threats of self-harm. The maternal grandmother was prevented from physically entering into her car by the male applicant and this required attendance of the police. The son was assessed as being safe in his current placement with his maternal grandparents. This estrangement led to Family Court proceedings which have already been referred to in these reasons.

41. On 16 January 2016 the male applicant was in a motor vehicle accident, with his son (a different one to the one referred to previously) who was driving the car. The police records for the motor vehicle accident show that the male applicant became quite irate, agitated and argumentative and yelled at a female driver calling her “slut” several times. This information was obtained during the course of this review hearing.

42. On 25 January 2016 the female applicant CLO contacted the casework manager to inform her that the oldest child no longer wish to remain living with them and CLO wanted Wandiyali to pick him up. The female applicant was told that he would be placed in respite care. Later that day Mr McLelland contacted the female carer to inform her that all 3 boys would be placed in respite care and that she should organise some clothing and any medication for the boys for the next few days, and staff will pick the children up at 3 pm. That same day the male applicant contacted the Manager at the Department of Family and Community Services (not Wandiyali) and advised that the family were in crisis and they needed a result by “midday or else”. As a result of the breaches of the Code of Conduct and the breakdown of the working relationship between the carers and the agency, the difficulty in communicating and getting the carers to attend a meeting at the office, the decision was made to place the children into respite and to suspend the applicants’ authorised carer status.

43. The process of having the children picked up for respite led to the male applicant disagreeing with the decision to place all 3 children in respite and he said that the caseworkers were not welcome at his home and that they should meet him at a particular Community Services office. The male applicant however went to a different Community Services office some distance from the other office. The caseworkers were required to follow the male applicant back to his home in order to collect children’s belongings, even though apparently they were already in the car of the male applicant. There was also a stand-off with the male applicant refusing to hand over the middle child’s medication.

44. Despite the many attempts to arrange a meeting with the male applicant and without meeting Wandiyali to address his concerns, the male applicant utilised many avenues of complaint through various organisations involved in OOHC, including oversight bodies. The bodies to whom the male applicant complained include Family and Community Services, the NSW Ombudsman, the Kids Helpline, Connecting Carers, the Office of the Children’s Guardian, and the Minister for Family and Community Services. Mr McLelland identified that the male applicant was the most difficult person he has had to deal with in his professional experience.

45. Wandiyali received information from 2 concerned community members in early April 2016, that they had overheard the male applicant speaking in a public place about the situation concerning the children from the time of the previous carers. They both raised concerns about the male applicant’s obsession with the children and his mental health issues. Both anonymous callers described the entire situation from the start and named names of most of the people involved. These reports were therefore considered reliable.

46. An offer to mediate the relationship between the respondent and the applicants with an independent mediator was made by email on 8 April 2016. The applicants determined that the matter should be resolved in the Tribunal due to the inconvenience of dates proposed for mediation. The applicants also wished for the meeting to be fully recorded.

47. The male applicant CLN subsequently arranged with the respite carers, with whom the applicants have formed a relationship, to have unsupervised access with the eldest child by driving him to Sydney in his motor vehicle. This is contrary to the case plan for the children. The respondent did not approve of this journey and unsupervised access.

Consideration

55. It is reasonably clear from a brief review of his history that the male applicant CLN has little insight into the aggressive nature of his behaviour in many situations. This behaviour has a damaging effect on his ability to interact in a meaningful and civilised manner with a variety of people including professionals and authority figures. The impact of that behaviour is that members of the public, staff, and it is reasonably assumed children who are also exposed to that behaviour, have physical symptoms of fear resulting from contact with the male applicant.

56. The review conducted by Justiz observed that the male applicant has a history of “solving” problems for others, or at least attempting to do so, which is no doubt inspired by the very best of intentions. The male applicant has a tendency to pursue a solution of his own determination rather than listening to the opinion and expertise of others. It was observed that the respondent would have been unlikely to have approved the application for authorised carer status if all the health and police records were made available at the time of the application. It is a fact, however, that the approval was granted and 3 vulnerable children were placed in the care of the applicants’ family.

57. The applicants have not been authorised carers in the past and have had difficulty adjusting to their own complex family situation. The very high needs of the 3 boys who were placed with the applicants would be difficult for highly skilled carers to meet. Yet the applicants attempted to meet the challenge but require some further self-development in the ways identified in the report by the psychologist.

58. Mr McLelland has developed a plan for the children which has been approved and implemented. The children have transitioned into the long-term care of Aboriginal mother and daughter carers with the support and guidance of the respite carers whom the children view as their grandparent figures. The eldest child has been placed with the mother carer, her husband and 3 other foster children all of them apparently get along and enjoy each other’s company. The 2 younger children have been placed with the daughter carer, her husband and family with whom they get along and also enjoy each other’s company. This permits the eldest child to have time away from his siblings. The eldest child has developed parentified behaviours towards his siblings as a result of the trauma and neglect suffered in the care of their biological parents. This has, in the past and continuing into the present, resulted in him becoming angry and violent towards his siblings because he cannot separate his parental and sibling roles.

59. The mother and daughter Aboriginal carers have regular contact with each other on an almost daily basis. The eldest child and the middle sibling will attend different schools and interact with each other in an extended family situation but have the safety of their own places, separate from each other, to which they can retreat.

60. The children’s Aboriginal cultural identity will be met in this placement. Those aspects of their identity would not be met if the children were to return to the applicants’ care.

61. The children will continue to have respite care with their established respite carers. The children view these carers as their ‘grandparents’.

62. It is determined for all the reasons and circumstances described previously that on the balance of probabilities the correct and preferable decision for these 3 children is not to return to the care of applicants, but to proceed with the placement that has been found for them which meets their Aboriginal identity needs. The current proposal retains significant relationships for the children. The applicants will have the opportunity of forming part of the children’s lives provided they undertake the necessary steps to improve their capacities. That will be a matter for them to undertake and future assessment of their progress will permit decisions to be made in the interests of the children.

63. It is also determined that the authorisation of the applicants as authorised carers should not have occurred considering all the history and capacity of the applicants which had not been properly ascertained before they became the carers for the children. Subsequent events highlighted that the applicants were not sufficiently skilled to care for these children who had suffered significant trauma in their young lives. It is acknowledged that in effect the applicants put themselves forward to rescue the children from a previously unsatisfactory placement. This concern has led to sub-optimal decision making about the suitability of the applicants to care for the children. The benefit of hindsight enables this conclusion to be drawn but the determination is not a criticism of any of the personnel involved in this process. The persons involved in the lives of these children have discharged their roles to the best of their abilities and with the interests of the children at the forefront of their deliberations.

Orders

64. The Tribunal therefore orders:

1. The decision made on 25 January 2016 to place the children the subject of the decision into alternative authorised care is affirmed.

2. The decision made on 25 January 2016 to suspend the applicants’ authorisation as authorised carers is set aside and in substitution it is determined that the applicants’ authorisations as authorised carers are cancelled.

3. The application filed 24 February 2014 for review of the decision made 25 January 2016 is otherwise dismissed.

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: 12 October 2016