DHJ v Secretary, Department of Family and Community Services

[2018] NSWCATAD 45

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DHJ v Secretary, Department of Family and Community Services [2018] NSWCATAD 45
Hearing dates:	23 January 2018
Date of orders:	23 January 2018
Decision date:	23 January 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Dr J Lucy, Senior Member
Decision:	1. The application for administrative review of the respondent’s decision to remove a child from the applicant’s care (“the foster child”) is to be dealt with by the Tribunal, notwithstanding that the applicant has not applied for internal review of the decision. 2. The application for a stay is granted. 3. The respondent is to arrange for the foster child to be returned to the care of the applicant by 11am on 24 January 2018. 4. By consent, the publication or broadcast of the name of the applicant and any child referred to in these proceedings is prohibited.
Catchwords:	ADMINISTRATIVE LAW – Child Protection – Where respondent made reviewable decision to remove foster child from care of authorised carer – Applications for review and for a stay of decision – Where applicant did not apply for internal review – Whether it is necessary for the Tribunal to deal with the application in order to protect the applicant’s interests – Whether respondent given a reasonable opportunity to make submissions in relation to the proposed stay – Interests of persons affected by determination of the application - Whether grant of a stay is appropriate to secure the effectiveness of the determination of the application
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW)
Cases Cited:	AHJ v NSW Trustee and Guardian [2011] NSWADT 311 DFS and DFT v Challenge Community Services [2017] NSWCATOD 177 The Secretary, Department of Family and Community Services v Allana Pearl Smith [2016] NSWSC 1384 Ye v Commissioner for Fair Trading; Ucer Investments and Resources Management Pty Ltd v Commissioner for Fair Trading [2016] NSWCATAD 147
Category:	Consequential orders (other than Costs)
Parties:	DHJ (Applicant) Secretary, Department of Family and Community Services (Respondent)
Representation:	Counsel:     Solicitors: Applicant (self-represented) Department of Family and Community Services (Legal) (Respondent)
File Number(s):	2018/00016123
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication or broadcast of the name of the applicant and any child referred to in these proceedings is prohibited.

reasons for decision

1. This was an application for a stay of a decision removing a foster child from the care of an authorised carer.

2. At the time of the stay hearing, it had been nearly two weeks since the child had been moved to a placement with her grandparents. The foster child had lived with the authorised carer for nearly her whole life and was attached to her. She also had a long term relationship with her grandparents.

3. I decided to grant the stay and to order that the child be returned to her foster mother, pending the outcome of the application for review.

Background

4. The foster child is three and a half years old. She has been in the care of the applicant (the foster mother) since she was 12 days old. The foster child experiences speech difficulties and is cognitively delayed.

5. The foster child has been visiting her grandparents on a regular basis since she came into the applicant’s care. The foster child’s two older half-siblings live with the grandparents.

6. In mid-December 2017, the applicant advised her case worker by text message that she wanted the foster child to transition to living with her grandparents. The applicant says that the reason for this request was that, in the context of strained relations with the grandmother, the applicant was distraught by the grandmother’s refusal to allow the foster child to return from her access visit an hour early to attend a children’s Christmas church service. She said she made a “knee-jerk” decision to erase the grandmother from her life, which meant that she had to relinquish care of the foster child.

7. There is evidence that the applicant and a representative of the respondent had a conversation about the proposed change in placement on 29 December 2017, but there is no evidence about what was said at that time.

8. On 31 December 2017, the applicant emailed the Department indicating that her decision to relinquish care of the foster child was the wrong one and that she wished to retain care of the foster child. She explained that she had made the request at a time when she was “distraught”.

9. On 5 January 2018, Ms Kellie Dehn, Manager, Client Services at the relevant location, who has overall case management responsibility for the foster child, wrote to the applicant. She informed her of the decision to change the placement for the foster child. She explained that the decision had been made because:

“1. [The foster child] has ongoing unsupervised contact with her Maternal Grandparents and siblings… since she entered care. As you are aware, [the siblings] are placed long term with the Maternal Grandparents who are their legal guardians.

2. Providing [the foster child] with the opportunity to reside with her immediate family will strengthen her sense of identity within her own family.

10. On 10 January 2018, the Department of Family and Community Services removed the foster child from the applicant’s care. A Departmental officer decided that she was to live instead with her grandparents on a permanent basis.

Oral reasons

11. At the hearing, I decided to grant the stay and gave oral reasons for that decision. I prefaced those oral reasons by saying that I would give fuller reasons in writing, after the hearing. These are those reasons.

Non-publication order

12. At the hearing, by consent, I made an order prohibiting the publication or broadcast of the name of the applicant and any child referred to in these proceedings (Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(a)). I was satisfied that it was desirable to do so to protect the identity of the foster child and her siblings.

Tribunal’s jurisdiction to review the removal decision

13. I am satisfied that the Tribunal has jurisdiction to review a decision to remove a foster child from the care of an authorised carer.

14. Section 30 of the Civil and Administrative Tribunal Act provides that the Administrative Decisions Review Act 1997 (NSW) provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator. Pursuant to s 9(1) of the Administrative Decisions Review Act, the Tribunal has administrative review jurisdiction over a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under the Administrative Decisions Review Act.

15. Section 28(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) provides that a person may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act of a decision that is an administratively reviewable decision under s 245 of the Children and Young Persons (Care and Protection) Act 1998 (NSW).

16. 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” is “an administratively reviewable decision for the purposes of section 28(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993”: Children and Young Persons (Care and Protection) Act, s 245(1)(c). The “relevant decision-maker” is the person or body authorised by or under the Children and Young Persons (Care and Protection) Act or the regulations to make the decision (Children and Young Persons (Care and Protection) Act, s 245(2)). I will assume, for the purposes of this decision, that the Secretary (as head of the Department of Family and Community Services) has power to remove the responsibility for the daily care and control of the child from an authorised carer pursuant to s 140 of the Children and Young Persons (Care and Protection) Act. There was no submission to the effect that the Secretary does not have that power, although neither party identified the source of the power.

17. For these reasons, I find that the Tribunal has jurisdiction to hear the applicant’s application for review of the decision to remove the foster child from her care, subject to what follows concerning her failure to apply for internal review.

No internal review

18. The applicant did not apply for internal review of the decision to remove the child from her care. She applied to the Tribunal for review of the decision on 16 January 2018 and applied for a stay of the decision on the same day.

19. The general rule is that an application to the Tribunal under the Administrative Decisions Review Act may not be made unless the applicant has applied for an internal review and the review is taken to have been finalised (Administrative Decisions Review Act, s 55(3)). However, if this has not occurred, the Tribunal may deal with the application if, relevantly, it is satisfied that it is necessary for it to do so in order to protect the applicant’s interests and the application was made within a reasonable time (Administrative Decisions Review Act, s 55(4)).

20. Dr Nguyen, for the Secretary, accepted (as I do) that the application to the Tribunal was made within a reasonable time, but said it was not necessary for the Tribunal to deal with the application in order to protect the applicant’s interests.

21. The applicant submitted that it was necessary to protect her interests for the Tribunal to deal with the application due to the stress caused by the removal of the foster child, the impact on her relationship with the child and the circumstance that she had booked an 8-day cruise around the South Pacific, which was to include the child, and which left the day after the hearing.

22. I am satisfied that it is necessary to deal with the application in order to protect the applicant’s interests (Administrative Decisions Review Act, s 55(4)(b)). The applicant’s interests are immediately and directly affected by the decision to remove the child from her. The applicant gave evidence, which I accept, that the removal of the child from her caused her great distress. The longer the child is away from her, the less likely it is that it will be in the child’s interests for the child to return to the applicant, because the child is likely to become settled in her new placement (or at least to begin the process of adjusting to that placement). The situation has a degree of urgency, given that a child’s interests are at stake, and that the applicant’s interests are connected with those of the child.

23. I also accept that it is necessary to deal with the application to protect the applicant’s interests, for the other reasons given by the applicant.

24. Dr Nguyen submitted that the Tribunal was required to have regard to the child’s interests, when making a decision about dealing with an application in the absence of an internal review, consistently with the principle that “in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount” (Children and Young Persons (Care and Protection) Act 1998, s 9(1)). This may be so. In any event, I consider that it is in the child’s interests for the Tribunal to deal with the application so that it may be determined as quickly as possible, with any corresponding uncertainty for the child reduced.

25. For these reasons, I have decided to deal with the application, notwithstanding that the applicant did not apply for an internal review.

Stay of decision

26. The applicant applied for a “stay/interim order that determines that [the foster child] remains in my care as foster carer until there is an Administrative Review of FACS decision to transition the care of [the child] to her grandparents.”

27. Under s 60(2) of the Administrative Decisions Review Act, “the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application.”

28. The Tribunal’s decision as to whether or not to grant a stay does not determine the substantive review application of an applicant: DFS and DFT v Challenge Community Services [2017] NSWCATOD 177 at [18].

Whether Tribunal is entitled to make an order under s 60(2)

29. The Tribunal may make an order under s 60(2) “only if it considers that it is desirable to do so after taking into account:

(a)  the interests of any persons who may be affected by the determination of the application, and

(b)  any submission made by or on behalf of the administrator who made the decision to which the application relates, and

(c)  the public interest.”

(Administrative Decisions Review Act, s 60(3))

30. When deciding whether to make a stay order, the Tribunal must comply with the rules of procedural fairness (Civil and Administrative Tribunal Act, s 38(2)) and must not make an order “unless the administrator who made the decision to which such an order would relate has been given a reasonable opportunity to make submissions in relation to the matter” (Administrative Decisions Review Act, s 61(1)(a)).

31. Dr Nguyen did not submit that the respondent had not been given a reasonable opportunity to make submissions in relation to the stay application. However, I will address the question of whether the respondent did have such an opportunity, as there is evidence that the respondent was not aware of the proceedings until the day before the hearing.

32. On 16 January 2018, being a week before the hearing of the stay application, the Tribunal sent a notice of listing to the parties, with directions for each to provide submissions and evidence to each other and to the Tribunal, prior to the stay hearing.

33. The applicant filed and served a large amount of evidence and submissions in support of her application for a stay. The respondent did not file any material.

34. At the hearing, Dr Nguyen informed the Tribunal that he had instructions that the respondent had not received the correspondence from the Tribunal and said he only became aware of the proceedings when he read the Tribunal’s hearing list the evening before.

35. In these circumstances, Ms Dehn gave evidence by telephone for the respondent. She said she had received the bundle of evidence and submissions served by the applicant several days after they were served, due to being on sick leave. However, she had thought the material was correspondence to her, and had not understood that these proceedings had been commenced, or that the material related to Tribunal proceedings.

36. Notwithstanding that the respondent only learned about the proceedings the evening before the hearing, Dr Nguyen made cogent submissions at the hearing and Ms Dehn gave relevant evidence. I am satisfied that the respondent had an adequate opportunity to be heard on the stay application.

37. I consider that the persons who may be affected by the determination of the application are the applicant, her children living in her home, the foster child’s grandparents, the foster child’s siblings and the foster child. I have taken into account their interests (as discussed below), the public interest and Dr Nguyen’s submissions. I am satisfied that I may determine the application, consistently with the principles of procedural fairness and with the requirements of s 60(3) and s 61(1) of the Administrative Decisions Review Act.

Should the Tribunal grant a stay of decision?

38. The respondent opposed the grant of a stay. The main reason for the respondent’s opposition appeared to be the proposition that a stay would have a negative effect on the foster child. The respondent also submitted that it would be upsetting and disruptive for the family members in the new placement (the foster child’s grandparents and siblings).

Interests of the foster child

39. Ms Dehn gave evidence was that she was concerned about the impact on the foster child if the stay was granted, given that the child had gone through an unsettled period of transition to the grandparents. She said the grandparents’ household had prepared themselves for having the foster child on a long term basis and that the foster child was doing very well. Ms Dehn’s opinion was that the change would be very disruptive and quite traumatic for the child.

40. Ms Dehn said that she had been told that when the child got to her grandparents on 10 January 2018 she was very excited and settled straight in. The grandparents had had concerns about the child not defecating for a long period of time, but had no concerns about her coping emotionally. When questioned by the applicant, Ms Dehn accepted that toileting problems could be an indicator of emotional distress, but said they could also be a medical problem.

41. In response to a question from the Tribunal, Ms Dehn said she did not know what the child had been told about her long-term living arrangements, but thought that the child was aware she would live with her grandparents now.

42. Ms Dehn also said that the applicant had asked to transition the child to the grandparents once before. The applicant agreed that she had done so in January 2017, but said that this had occurred after a very stressful overseas holiday with the child, and was “more of a reactive request for help” to the child’s grandmother. Whilst it is concerning that the applicant has asked for the child to be transitioned to the care of her grandparents on two occasions, I am not satisfied on the evidence before me that this is indicative of any long-term instability in the placement.

43. Ms Dehn’s evidence was mostly second-hand. She said that the caseworker was going to visit the foster child the day after the hearing, but did not appear to have any reliable report of the child’s progress so far in the new placement. The evidence about the foster child’s toileting issues may be indicative of emotional distress, as the applicant submitted, although there is insufficient evidence to make any finding about this. Ms Dehn’s evidence that the foster child was reportedly excited when she arrived at her grandparents is countered by the applicant’s account of the foster child being distressed at being “forced into the FACS caseworker’s car” to go to the grandparents’ home, whilst “screaming for her ‘mummy’” (as the child calls the applicant).

44. The applicant submitted that the foster child was at real risk of developing Reactive Attachment Disorder, if she had to live with her grandparents long term, due to the change in placement and due to her existing risks. She submitted that taking the foster child away from her primary caregiver could lead to a difficulty for the foster child connecting with others and managing her emotions, as well as causing other significant psychological effects.

45. There is no evidence before the Tribunal from a psychologist or psychiatrist about the effect of removing the foster child from the foster mother. However, I accept the applicant’s evidence that the child is primarily attached to her. As the applicant pointed out, an authorised carer review conducted by or on behalf of the respondent in August 2017, described the applicant as a “skilled foster mother who is committed to caring for [the foster child] in the long term” and observed that it was “obvious” that the applicant and the foster child have “a strong bond with each other.” A letter provided by the applicant from the director of the child care centre attended by the foster child also indicated that the applicant and the foster child had a “close bond.”

39. On the evidence before me at present, I consider that, if a stay of the decision is not granted, the continued separation of the foster child from her foster mother is likely to be upsetting and confusing for the child, in circumstances where it was not disputed that there is a strong bond between them. In my view, it is in the child’s interests to stay with the applicant until the application is decided. This is because, if it is ultimately decided that the respondent’s decision is the correct and preferable decision, the child can be transitioned into to the grandparents’ care at a later point in time. She has a longstanding relationship with the grandparents and I anticipate, from comments made by Dr Nguyen at the hearing, that contact visits will continue while the application is being determined. The potential harm to the child in granting a stay is that a decision to return her to the applicant may be confusing for her, if she has gained an understanding that she is to stay with the grandparents long term. However, the Tribunal cannot be confident that the child in fact has such an understanding. There is little evidence of what she has been told and the applicant’s evidence was that, due to her cognitive delays, the child would not be able to understand the concept of living somewhere long term. It is equally possible that the child would be relieved to be returned to the applicant, and to the place she presumably regards (or recently regarded) as her home.

Interests of grandparents and foster child’s siblings

47. The interests of the grandparents and the foster child’s siblings are relevant to the determination of the stay application, as they are all people “who may be affected by the determination of the application” within s 60(3)(a) of the Administrative Decisions Review Act. Ms Dehn gave evidence that the grandparents were likely to be very distressed and shocked by a decision to grant a stay, partly because they were not, to her knowledge, aware of the proceedings. She said they had prepared their house for the foster child, and that the foster child was sharing a room with her sister. Ms Dehn’s evidence was that the grant of a stay was likely to have an adverse effect on the grandparents and the siblings, as they had started the process of transitioning the foster child into their family, and expected her to be there long term.

48. I accept that the decision is likely to have an adverse effect on the grandparents and on the foster child’s siblings. It could be expected to be distressing and unsettling for the grandparents, having thought that the foster child would be in their care long term, for her to be taken away from them at short notice. The siblings are children and may find it difficult to understand the removal of their sister from them, when they had been told that she would be living with them long term. They may also find it unsettling or distressing.

49. A decision to grant a stay does not, however, mean that the grandparents and the siblings will not be able to have any contact with the foster child. The respondent may make decisions about contact visits, and the indication at the hearing was that these would be likely to continue.

Interests of the applicant and applicant’s children

50. It is clearly in the applicant’s interests for a stay to be granted. On the limited evidence before the Tribunal, I am also satisfied that it is also in her children’s interests. The applicant stated that the distress caused to herself and her children by the removal of the foster child “was, and continues to be, unimaginable.” I accept that the applicant and her children have suffered emotionally as a result of the removal of the foster child from their home and that the return of the foster child to them would be positive for them.

The public interest

51. It is necessary to consider the public interest when deciding whether to grant a stay (Administrative Decisions Review Act, s 60(3)(c)).

52. Neither party made any submissions as to where the public interest lies.

53. As Brereton J has observed, “there is considerable public interest in the welfare of children in out-of-home care”: The Secretary, Department of Family and Community Services v Allana Pearl Smith [2016] NSWSC 1384 at [30]. There is nothing in the circumstances of this case, on the evidence before me at present, which persuades me that the foster child’s welfare would be adversely affected, were she to remain with the applicant. It has not been submitted that the applicant poses a risk to children generally, or to the foster child in particular. There is likely to be some initial disruption in moving the child back to her foster mother’s care, which may be unsettling for the child. However, this is likely to be outweighed by the benefits to her of living with the person she regards as her mother and to whom she has a strong attachment.

54. I consider that the welfare of the foster child is best served by her living with the applicant until these proceedings are determined, and that the public interest favours maintaining the stability of the child’s long-term placement until such time as the Tribunal determines the substantive application.

Whether a stay is necessary to secure the effectiveness of the determination

55. I am satisfied that a stay is appropriate to secure the effectiveness of the determination. If the child remains with the grandparents until the application is determined, the child’s interests in being in a stable placement may mean that, by the time of a final hearing, it is not in the child’s interests to affirm the respondent’s decision, even if the Tribunal is of the view that that decision was not, at the time it was made, the correct and preferable decision. The Tribunal would have to have regard to the harm caused to the child in removing her from a placement in which she may, by that time, be settled, or at least be in the process of adjusting to. This would cause irreparable loss or harm to the applicant, as it would mean that she would lose care of the child: see AHJ v NSW Trustee and Guardian [2011] NSWADT 311 at [15] and Ye v Commissioner for Fair Trading; Ucer Investments and Resources Management Pty Ltd v Commissioner for Fair Trading [2016] NSWCATAD 147 at [32].

56. It is appropriate to keep in mind the common law principles in relation to the exercise of interlocutory injunctions: AHJ v NSW Trustee and Guardian [2011] NSWADT 311 at [14] and Ye v Commissioner for Fair Trading; Ucer Investments and Resources Management Pty Ltd v Commissioner for Fair Trading [2016] NSWCATAD 147 at [32]. I consider that the applicant has established a prima facie case, in that if the evidence remains as it is there is a probability she will be successful in her substantive application. Secondly, if a stay is not granted, she is likely to suffer irreparable harm.

57. The grant of a stay is also consistent with the principle that “the safety, welfare and well-being of the child or young person are paramount”: Children and Young Persons (Care and Protection) Act, s 9(1). As the applicant submitted, the disruption to the foster child’s attachment to the applicant may cause psychological harm to the child. It is in the child’s best interests to remain in the family situation she was in before the decision was made, as this is the least disruptive option for her, even taking into account that she has to be unexpectedly removed from the grandparents’ care.

58. For these reasons, I consider that it is appropriate to grant the stay.

Order requiring the respondent to arrange for the return of the child to the applicant’s care

59. After I had indicated that I would grant the stay, the question arose as to whether I had power to order the child’s return to the applicant from the grandparents.

60. The Tribunal has powers to make such orders “staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application” (Administrative Decisions Review Act, s 60(2), emphasis added). An order requiring the respondent to arrange for the return of the child to the applicant is an order “affecting the operation of the decision” to remove the child from the applicant’s care. It requires the respondent to arrange for the return to the (previously existing) status quo. I am satisfied that it is an order which I have power to make under s 60(2) and I am also satisfied that it is an appropriate order to secure the effectiveness of the determination of the application, for reasons given above.

Undertaking

61. At Dr Nguyen’s request, after I had indicated that I was inclined to grant the stay order, the applicant gave an undertaking to the Tribunal that she would not refer to these proceedings in front of the foster child or speak negatively about the grandparents in front of her.

Orders

62. I make the following orders:

1. The application for administrative review of the respondent’s decision to remove a child from the applicant’s care (“the foster child”) is to be dealt with by the Tribunal, notwithstanding that the applicant has not applied for internal review of the decision.

2. The application for a stay is granted.

3. The respondent is to arrange for the foster child to be returned to the care of the applicant by 11am on 24 January 2018.

4. By consent, the publication or broadcast of the name of the applicant and any child referred to in these proceedings is prohibited.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 16 February 2018