CPP v Secretary Department of Family and Community Services

[2017] NSWCATAD 127

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CPP v Secretary Department of Family and Community Services [2017] NSWCATAD 127
Hearing dates:	19 December 2016
Date of orders:	26 April 2017
Decision date:	26 April 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Anderson, Senior Member S Davison, General Member
Decision:	The decision to remove the children the subject of the application from the care of the applicants is confirmed.
Catchwords:	ADMINISTRATIVE LAW - review of decisions under section 245 Children and Young Persons (Care and Protection) Act 1998 (NSW) and section 28(1)(a) Community Services (Complaints, Reviews and monitoring) Act 1993 (NSW) – removal of children from the care of the applicants due to breach of safety plan and code of conduct - issue is the correct and preferable decision having regard to the material before the Tribunal - decision to remove the children from the care of the applicants confirmed.
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) Regulation 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028 Blinko and Blinko [2015] FamCAFC 146 Deiter & Deiter [2011] FamCAFC 82 Director-General, Department of Community Services v D & Ors [2007] NSWSC 762 J v Lieschke [1987] HCA 4; (1987) 162 CLR 447 Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 M v M [1988] HCA 68; 166 CLR 69 PR v Department of Community Services [2009] NSWADT 277 Re Cameron [2012] NSWSC 1453 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:	CPP & CPQ (Applicants) Secretary Department of Family and Community Services (Respondent)
Representation:	Counsel: L Fermanis (Applicants) M Higgins (Respondent)   Solicitors: Commins Hendriks Solicitors (Applicants) Crown Solicitor’s Office (Respondent)
File Number(s):	1610358201600378122
Publication restriction:	Pursuant to section 65 of the Civil and Administrative Tribunal Act 2013 a person must not, except with the consent of the Tribunal, whether before or after the proceedings are disposed of, publish or broadcast the name of any person who appears as a witness before the Tribunal in any proceedings, or to whom any proceedings in the Tribunal relate, or who is mentioned or otherwise involved in any proceedings in the Tribunal. Note that a reference to 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

Introduction

1. The applicants in this matter, known by the pseudonyms “CPP” and “CPQ”, seek administrative review of an administrative decision which falls within the jurisdiction of the Tribunal.

2. On 2 March 2016, the Secretary, Department of Family and Community Services, who is the respondent to this application for review, made a decision to remove six children from the care of the applicants. The six children range in age from 13 years to 5 years.

3. On 26 April 2016 an internal review of the decision made on 2 March 2016 affirmed the original decision. On 27 May 2016 the applicants filed an application for administrative review dated 24 May 2016. The purpose of the application was to seek review of the decision and have all of the children returned to the applicants’ care. On 18 August 2016, at the request of the applicants, the application was amended so that only the four youngest children are now the subject of the application for return of the children to the care of the applicants.

4. This matter was heard on 19 December 2016. At that time it was anticipated that a section 90 application under the Children and Young Persons (Care and Protection) Act 1998 (NSW) would be before the Children’s Court on 21 December 2016. At the completion of the matter on 19 December 2016 the parties were granted leave to approach the Tribunal with information concerning the outcome of the section 90 application. It is presumed that the children remain under the parental responsibility of the Minister following the section 90 hearing as the Tribunal has not been informed otherwise.

Legislative provisions

5. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act 2013 (NSW) or Civil and Administrative Rules 2014 (NSW) 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 it 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.

6. 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.

7. 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 (NSW).

8. Jurisdiction arises in the Tribunal, as His Honour Justice Campbell observed in AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028. This was a matter which required consideration of the legislation which gave jurisdiction to the Administrative Decisions Tribunal (but now exercised by this Tribunal). At [20] he stated:

“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.”

9. In this matter it is accepted that the Secretary Department of Family and Community Services is the relevant decision maker in relation to the decision to remove from the authorised carers the responsibility for daily care and control of the children. The decision to remove the children from the care of the applicants is one which is described by section 245(1)(c) of the Children and Young Persons (Care and Protection) Act.

10. 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 earlier care plan (also known as a ‘permanency plan’) made by the Children’s Court in that matter. In that case, 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.”

11. 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 277 remains 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.”

12. None of the parties before the Tribunal asserted that the Children’s Court permanency plan in relation to any of the children had any relevance to this particular application.

13. The Tribunal clearly has jurisdiction to hear this matter. The Tribunal acknowledges that in hearing the section 90 application that is being brought by the children’s mother the Children’s Court may make orders for parental responsibility, and thereby placement of the children, which override this decision of the Tribunal. If, however, the Court orders that the children remain in the parental responsibility of the Minister and are placed by the Minister in the care of authorised carers, the Tribunal’s decision would remain in force.

14. 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.

15. 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 original decision maker: section 63 Administrative Decisions Review Act 1997; YG v GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].

16. It is provided in the Children and Young Persons (Care and Protection) Regulation 2012 (NSW) as follows:

“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.

17. Clause 34 of the Children and Young Persons (Care and Protection) Regulation 2012 provides:

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)    It is a condition of an authorisation that an authorised carer may provide out-of-home care only to a child or young person who is a relative or kin of the carer or who knows the carer unless the carer has completed a course of training on the provision of care for a child or young person who is not a relative or kin of the carer.

(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.

Note: The relevant website of the Department is start="18">

Conditions of authorised care may, therefore, be imposed pursuant to section 137 of the Children and Young Persons (Care and Protection) Act and clause 34 of the Children and Young Persons (Care and Protection) Regulation.

Pursuant to section 140 of the Children and Young Persons (Care and Protection) Act the respondent has obligations to supervise placements of children with authorised carers. If the carer does not comply with those undertakings or conditions then it is up to the Department of Family and Community Services to take further and additional action about those matters.

The Code of Conduct for authorised carers provides that the carers shall follow the lawful policies, procedures and guidelines brought to their attention by the designated agency, and shall provide a physical environment that is safe, clean and comfortable and meets the needs of the children in the authorised carers’ care. The Code of Conduct also provides that the carers should provide a care environment where the child is not exposed to physical, sexual, psychological or verbal abuse, ill-treatment or neglect.

The objectives and principles contained in sections 8 and 9 of the Children and Young Persons (Care and Protection) Act embody protective measures to ensure that the child’s safety, welfare and well-being is given primacy. There is particular emphasis in the intervention powers granted to the Secretary by that Act to remove a child from their usual caregiver in order to protect the child from the risk of serious harm. The risk of serious harm is undefined in the Act but it has been held that “it is quite clear that exposure to sexual abuse comes within the phrase. Obviously, physical violence is within the phrase”: Re Cameron [2012] NSWSC 1453 at [13], Young AJ.

Evidence relied upon

22. The parties relied upon a substantial body of documentary evidence.

23. The applicants relied upon:

1. Affidavit of the applicant CPQ dated 12 September 2016 file 14 September 2016: Exhibit A1;

2. Affidavit of the applicant CPP dated 12 September 2016 filed 14 September 2016: Exhibit A2;

3. Affidavit of the applicant CPP dated 24 November 2016 filed 30 November 2016: Exhibit A3;

4. Affidavit of a former male foster child of the applicants (now aged 21) dated 8 September 2016 filed 14 September 2016: Exhibit A4;

5. Application filed in the proceedings and received by the Tribunal on 27 May 2016: Exhibit A5; and

6. Written submissions of the applicants dated 19 December 2016: Exhibit A6.

24. The respondent relied upon the following documents:

1. Bundle of section 58 documents filed 18 July 2016: Exhibit R1;

2. Reportable Conduct investigation documents: Exhibit R2;

3. Reportable Conduct investigation 2016 and other FACS records filed 30 August 2016: Exhibit R3;

4. Additional documents filed 30 August 2016: Exhibit R4;

5. Affidavit of caseworker Mr W dated 6 December 2016 and filed 8 December 2016: Exhibit R5; and

6. Submissions of the respondent dated 14 December 2016: Exhibit R6.

25. In addition, the Tribunal heard oral evidence from Mr W, CPP, a former male foster child of the applicants (now aged 21) and oral submissions.

Issue

26. The Tribunal is required to determine the correct and preferable decision as at the date of the hearing, taking all relevant matters into consideration. There is no requirement upon the applicant to show that the original decision maker’s decision was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88.

The evidence

27. The applicants are aged 64 and 62. They apparently had four biological children. One of those children gave birth to a male child later diagnosed with pervasive developmental disorder and the applicants assumed care responsibility for him. The applicants continue to perform an important role in providing care for him. The grandson considers them his “parents”. The grandson suffers from an intellectual disability, depression and anxiety, but is not undertaking any regular therapy or drug treatment to address his various mental health difficulties. In or about February 2016 the grandson was visiting the applicants about 2 or 3 times per week.

28. On 4 November 1998 the applicants were authorised as general foster carers for children aged between birth and 5 years in short-term or emergency placements.

29. On 15 June 2005 a child J, then aged 2, was placed with his 3 siblings in the care of the applicants. The Children’s Court subsequently made final care orders about 18 months later. After the final orders were made only J remained in the care of the applicants. J now aged 13, identified as Fijian.

30. On or about November 2009 the 5 other children the subject of the original application in this matter were placed in the care of the applicants. A child currently aged 14 was also placed in the care of the applicants.

31. The 4 children about whom the amended application for review is made are L (now aged 11), M (now aged 8), H (now aged 10), and C (now aged 6). All six children (L, M, H, C, J and the child now aged 14) were removed from the care of the applicants on 2 March 2016. The applicants now do not seek return of J (aged 13) and the child aged 14 to their care by reason of the amended application.

32. In January 2013, when the applicants were away on holidays, there was a serious fire on the farm which the applicants occupied and around 500 hectares of land were burnt. The applicants had arranged for their daughter to look after the property in their absence on holidays and it did not occur to them that their grandson might attend the house. However, the grandson telephoned CPQ from the farmhouse and informed him about a fire on the property. The grandson was interviewed by the police as an arson suspect. Although the grandson was ultimately not prosecuted for any offence, the opinion of the investigating police was that the grandson had lit the fire “for gratification and excitement of the attendance of the RFS to combat the fire.”

27. The grandson was also charged with extortion related matters for which he received a discharge under the mental health provisions of the relevant legislation. The grandson was also alleged to have threatened his aunt, raised as his sister, with a knife during a mental health episode.

28. The grandson relies heavily upon the applicants for assistance in his day-to-day life, to deal with these events which occurred in the relatively recent past, and at times of crisis.

29. In May 2012 a child (female) then aged 11 disclosed that she had been sexually abused by the grandson when she was in the care of the applicants in 2007. It was alleged that the grandson touched her “on her fairy” (presumed to be her vagina or genital region) during that time on an almost daily basis. The matter did not proceed to prosecution.

30. In June and July 2014 another child, then aged 14, disclosed she had been sexually abused by the grandson between the ages of 9 and 12 over the years 2007-2012. The child’s evidence to the police was that the grandson had committed numerous acts of digital and penile penetration, as well as kissing her without consent and, in one instance, physically restraining her. This behaviour was partially corroborated by two other people in the household who observed the grandson passionately kissing the complainant at the applicant's residence during the time period that she complained of sexual abuse. The complainant did not wish to give evidence against the grandson and the matter did not proceed to charges. The investigation substantiated the allegation and the grandson was listed as a person who caused harm to the child. In July 2014, after the investigation, an apprehended violence order was made to protect the victim from the grandson.

31. Further hearsay evidence was obtained about another girl who complained that the grandson had sexually abused her in a similar timeframe (between 2006 and 2007).

32. It is the Tribunal’s finding on the balance of probabilities that it is the fact that the grandson sexually abused a number of female children while living with the applicants. This does not appear to be an issue of great contention, not the least because the applicants accepted the terms of subsequent safety plans developed by the Department of Community Services in 2014 and 2015.

33. A safety plan was developed in August 2014 which prohibited the grandson from attending the home of the applicants in the presence of the six children and also prevented any unsupervised contact between the grandson and any of the six children. A second safety plan was signed on 19 November 2015.

34. The 2014 safety plan provided that it was dangerous for the grandson to attend the applicant’s residence generally, particularly during family and special occasions, and when other family members were caring for the children. In response, the plan was that the grandson would ring before attending the applicants’ residence and ask before coming to the house, and the applicants would arrange times when the children were not present. Additionally, the children would be supervised during the grandson’s attendance at family and special occasions and the grandson would be supervised by the applicants. The grandson also would not attend the home and not have contact with the children when other family members were caring for the children. The responsibility for responding and checking on the responses to those dangers was upon the applicants. The responsibility was upon the grandson to not attend unannounced and to call ahead to accommodate the non-attendance of the children. The other family members also had roles to play.

35. It was clear that the grandson continued to visit the applicants’ residence during the course of the 2014 safety plan on a regular basis. The grandson was unaware of the safety plan. It would appear that no one in the family other than the applicants were aware of the safety plan.

36. The 2015 safety plan was formulated to clarify the position about taking the children to the grandson’s house. It was provided that it was dangerous for the children to visit the grandson at his house and that the children should not go to his house. It was the applicants’ responsibility to ensure that the proper response was made. The grandson continued to have ongoing and significant contact with the applicants during the currency of that safety plan.

37. The Department of Community Services Reportable Conduct Unit (RCU) commenced investigations in 2016 into the alleged failure to protect the children from sexual harm and the risk of sexual harm presented by the grandson. In addition, there were other instances of reportable conduct by the applicants relating to excessive physical discipline and neglect of proper medical care. The applicants do not contest that the grandson poses a risk of sexual harm to the children. The grandson attended the applicant’s house and they attended his house to assist him with his daily living. Some of the children also attended the grandson’s home. On the basis of the investigation and the information gathered during that process, the children were removed on 2 March 2016 from the care of the applicants.

38. The applicants were informed on 3 March 2016, the day after the children were removed, that they were listed as persons associated with causing a risk of harm because they allowed unsupervised contact between their grandson and the six children.

39. An internal review on 26 April 2016 affirmed the removal decision. The internal review upheld the original reasons for the removal and added several others concerning the conduct of the applicants before and after the children’s removal.

40. On 1 August 2016 the RCU informed the applicants that it had found CPQ neglected the children and CPP had physically abused and neglected the children by allowing the grandson to be present with the children. The applicants requested a review of the RCU reportable conduct findings. The parties attended mediation on 19 September 2016 but the dispute did not resolve. The applicants requested a review of the conclusions of the RCU. The outcome of that review has not been the subject of evidence before the Tribunal because it had not been completed at the time of the hearing.

41. It was alleged that the female applicant CPP had thrown cold water on one of the children. The applicant CPP admits to this action. The other allegations are denied.

42. Since being removed from the applicants, the child L has been placed with a foster carer authorised by a designated agency Mallee Family Care. The children M (8 years), H (10), and C (6) have been placed with a foster carer authorised by the designated agency Challenge Community Services since 3 March 2016.

43. L has stated that he wishes to remain in his current placement but continue to have contact with CPP. He is reported to be in a currently stable and supportive placement that supports his developmental, emotional and social well-being milestones. These carers may be able to accept him as a long-term placement.

44. M, H and C (the 3 girls) have all expressed wishes to cease phone and face-to-face contact with the applicants. The detail of their expressions of these wishes is recorded in the affidavit of Mr W. The children have indicated that they are happy with their current carers and wish to remain in their current placement. The 3 girls stated that when they have contact time with the applicants, CPP asks the children if they want to come back to live with her. They stated they do not want to hurt her feelings so they have said that they do want to go back to live with her. The 3 girls are worried that the Tribunal may make order a return to the placement with the applicants but they want to continue their current placement and go to their current school when they have made new friends.

45. On 26 October 2016 the 3 girls were assessed by Mr Chris Kelly, a psychologist. In November 2016 they were further assessed by Ms Suzette Sowden, a clinical psychologist and forensic psychologist. M has behavioural and developmental issues characterised by attention deficit hyperactivity disorder, hyperactive/impulsive tendencies and oppositional defiant disorder. H has a lower intellectual capacity and struggles with her schoolwork. H also has moderate bilateral hearing loss, wears hearing aids and experienced educational difficulties relating to her hearing impairment. C has behavioural and developmental issues characterised by attention deficit hyperactivity disorder, hyperactive/impulsive tendencies, oppositional defiant disorder and features of a reactive attachment disorder.

46. H was asked by the caseworker about a letter which is attached to CPP’s affidavit affirmed on 24 November 2016. H remembered writing the letter but said that she “couldn’t remember writing that she wanted to live with them” and said she wishes to remain with her current carer.

47. On 17 November 2016 the mother of the 4 children who are the subject of this application lodged with the Children’s Court an application for rescission or variation of the Children’s Court orders pursuant to section 90 of the Children and Young Persons (Care and Protection) Act 1998. As indicated previously in these reasons that matter was listed for 21 December 2016 but the Tribunal has received no further information about those proceedings.

48. It is submitted by the respondent that the applicants have demonstrated a failure to manage the identified risk posed by the grandson physically or sexually abusing children in their care. It is also submitted that the applicants have exposed the children in their care to physical discipline or abuse which constitutes reportable conduct at the time of the hearing of this review application. The respondent argues that these matters constitute breaches of the code of conduct and expose the children in the applicant’s care to a risk of significant or serious harm. In those circumstances the respondent submits that it was left with little option but to remove the children from the applicant’s care.

Consideration of risk

55. In Blinko and Blinko [2015] FamCAFC 146 (“Blinko”), the Full Court of the Family Court discussed the appropriate approach in dealing with issues of risks and the obligation on the Court to consider whether the imposition of conditions or other safeguards would ameliorate those risks. The Full Court usefully summarised the relevant authorities as follows at [83]:

“It may be taken as well established by a line of authorities generally acknowledged to commence with Russell & Close (Unreported Full Court, 25 June 1993) that the following are correct statements of principle:

-    If a Court is satisfied that a parent represents an unacceptable risk of harm to a child, then unless that risk is able to be sufficiently managed or ameliorated by, for instance, supervision of any time or communication between the parent and the child, the best interests of the child may require an order prohibiting that parent from spending time or communicating with the child;

-   If the Court does not find that a parent represents such an unacceptable risk of harm, nonetheless it may take into account anxiety on the part of the other parent arising from their genuine, but not necessarily rational, belief that the parent represents such a risk of harm. In such a case, the other parent’s belief must be genuinely held. If it is entirely irrational and baseless, then the genuineness of the belief would clearly be open to doubt. However where such a belief is genuinely held, if the child spending time with a parent would sufficiently erode the other parent’s capacity to properly care for the child, then that may of itself mean that the ensuing detriment to the child determines that it is in their best interests not to spend time or communicate with the parent;

-   Further, where the history of abuse, violence or like behaviour between two parents means that any continued interaction between them would similarly erode the resident parent’s capacity to care for the child, the need for peace and tranquillity in their household may be a more compelling need for the child and hence also might justify an order prohibiting the other parent from spending time or communicating with a child: see Sedgley & Sedgley (1995) FLC 92-623.”

56. In Blinko the Full Court made it clear that a necessary part of assessing risk requires the Court to also consider possible measures to ameliorate that risk. In that respect the Full Court said at [27]:

“A consideration of risk, and factors which impact upon or ameliorate the risk, will in most cases be inextricably linked. That is because “[t]he object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child”: see Hon John Fogarty AM “Unacceptable Risk – A Return to Basics” (2006) 20 Australian Journal of Family Law 249 at 261”.

57. It is of significance that the Full Court found that the learned trial judge fell into “discretionary error” when he failed to consider a range of potential means whereby the risk to the child of having a relationship with the father could have been ameliorated. Possible options, the Full Court noted at [31], were:

1.    Permitting the father to send cards, gifts or letters to the child, whether on special occasions or more regularly;

2.   Permitting the child to spend supervised time with the father on one or more occasions during the year for a fixed period (on a final and not interim basis);

3.   Introducing, on an interim basis, some closely supervised time between the child and the father with adequate counselling supports, and after some period of time reviewing the efficacy of such arrangements; and

4.    Requiring the mother and child to engage with appropriate therapists with a view to preparing the child for re-unification counselling with the father.

58. In terms of the obligation to address issues of risk associated with children being subject to or exposed to family violence, in Deiter & Deiter [2011] FamCAFC 82 (“Deiter”), (referred to with approval in George & George [2013] FamCAFC 182 at [21] and see also Enmore & Smoothe [2014] FamCAFC 131 at [35]), the Full Court at [61] said:

“The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made…”

59. As the High Court has observed in a number of decisions it is considered in children’s best interests to maintain a filial relationship between children and their “parents”. In M v M [1988] HCA 68; 166 CLR 69 at [20], the High Court referred to the balancing exercise to be undertaken in assessing risk:

“The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v. Lieschke [1987] HCA 4; (1987) 162 CLR 447, at pp 450, 458, 462, 463-464.”

60. In the matter at hand, the imposition of conditions to ameliorate risk has been attempted in the formulation of the 2014 and 2015 safety plans. These plans did not, however, reduce the risk. The evidence to hand establishes that the children have become settled in their current placements and, while it is controversial for the applicants, the views expressed by the children indicate a preference for remaining in their current placements.

Conclusion

61. The applicants maintain that they have not exposed the children to an unacceptably high level of risk in relation to the grandson. The Tribunal finds, however, that even in the event that the applicants have not previously exposed the children to a high level of risk of harm, they now pose an unacceptable risk of harm to the children.

62. The obligation on the respondent is to ensure that the children under the parental responsibility of the Minister are not exposed to a risk of physical harm or sexual abuse. The paramount principle is to protect the children’s safety, welfare and well-being. Once attempts are made to ameliorate the risk and those attempts do not ameliorate the risk, there are very few remaining options.

63. The Tribunal finds that the correct and preferable decision in all of the circumstances is for the children to be removed from the care of the applicants. It is the Tribunal’s finding that since removal from the care of the applicants, the children have become settled and are reluctant to change their current living circumstances. The Tribunal, accordingly, confirms the decision of the respondent to remove the children.

64. The order of the Tribunal shall be:

1. The decision to remove the children from the care of the applicants is confirmed.

**********

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: 26 April 2017