DOJ v Secretary, Department of Family and Community Services

[2018] NSWCATAD 211

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DOJ v Secretary, Department of Family and Community Services [2018] NSWCATAD 211
Hearing dates:	30 August 2018, 5 September 2018
Date of orders:	11 September 2018
Decision date:	11 September 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Dr J Lucy, Senior Member
Decision:	The applicant’s application for a stay is dismissed.
Catchwords:	ADMINISTRATIVE REVIEW – Child protection – Where respondent removed two foster children from the applicant’s care – Where allegations of physical assault made against foster mother – Where applicant applied for stay of decision to remove children from her care - Interests of persons affected by determination of the application – Public interest - 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) Civil and Administrative Tribunal Rules 2014 (NSW) Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW)
Cases Cited:	DFS and DFT v Challenge Community Services [2017] NSWCATOD 177 Loveday v Commissioner for Fair Trading [2018] NSWCATAD 80 The Secretary, Department of Family and Community Services v Allana Pearl Smith [2016] NSWSC 1384
Category:	Consequential orders (other than Costs)
Parties:	DOJ (Applicant) Secretary, Department of Family and Community Services (Respondent)
Representation:	Solicitors: Applicant in person Respondent’s in-house solicitor
File Number(s):	2018/00258074
Publication restriction:	Section 65 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibits the publication or broadcast of the names of certain persons.

REASONS FOR DECISION

1. This is an application by a foster mother for a stay of a decision made on behalf of the respondent (“the Secretary”) to remove two foster children from her care. She is seeking an order that the children be returned to her, pending the outcome of her application for review.

2. I have decided not to grant a stay. This is primarily because the proceedings will be heard in a relatively short time, and it would be destabilizing to move the children back to the foster mother then move them away again, if the Tribunal found against the mother at the final hearing.

Background

3. The applicant (“the foster mother”) was the authorised carer of two girls (“the girls”). She has been an authorised carer for over ten years and in that capacity has cared for a number of children. She also has biological children of her own, as does her husband.

4. The girls, who are twins, are four years old. In mid-2016, the Children’s Court made orders placing them in the parental responsibility of the Minister for Family and Community Services until each of them turns eighteen.

5. The girls have special needs. Each has a genetic disorder known as neurofibromatosis 1, suffers from autism and has delayed oromotor skills (difficulty controlling the mouth, lips and tongue). They have other difficulties, including curvature of the spine.

6. In late 2016, the girls came into the foster mother’s care. In late 2017, the foster mother and her husband were authorised to provide long-term care for the girls.

7. Between 2009 and 2018, a number of different allegations were made concerning the foster mother’s physical discipline of children in her care. These include that she slapped a child (2009), she hit two children on the head with a hairbrush more than once (2014), she hit children on the head with a hairbrush (2017), she smacked the girls on the head with her hand (2017), she grabbed and pulled a child off the ladder of a bunk bed (2018) and that she hit a child on the head with a hairbrush (2018).

8. The Secretary removed the girls from the foster mother’s care on 5 June 2018.

9. On 7 June 2018, a casework manager, Ms Tristan Rolfe, wrote to the foster mother and her husband explaining that the reasons for the decision to remove the girls (“the removal decision”) were:

1. In March 2018, the Secretary had received a risk of significant harm report about a child formerly in the foster mother’s care, who is now nine years old (“the nine-year-old girl”). The allegation included that the foster mother had punched the nine-year-old girl in the nose after she broke a window. The report also alleged that the foster mother had hit one of the girls on the head with a hairbrush;

2. Family and Community Services (“FACS”) investigated the report and substantiated the allegation of excessive physical discipline to the nine-year-old girl;

3. As a result, the girls were considered to be at risk of serious harm if they were to remain in the foster mother’s care. The girls were considered to be at higher risk given that they were highly vulnerable due to their chronic medical conditions that made them physically fragile and their developmental and speech delays impacting on their ability to inform other people of any harm they may be experiencing.

10. The foster mother sought internal review of the removal decision. On 24 July 2018, the decision to remove the girls was affirmed on internal review. That letter appears to have been emailed to the foster mother.

11. The foster mother applied to the Tribunal for review of the removal decision on 22 August 2018.

12. Since the removal decision, the girls have been living with another authorised carer.

Tribunal’s jurisdiction to review the removal decision

13. 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 2013 (NSW) (“NCAT 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) (the “Care Act”).

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” (Care Act, s 245(1)(c)). The “relevant decision-maker” is the person or body authorised by or under the Care Act or the regulations to make the decision (Care Act, s 245(2)). As the head of the designated agency responsible for the young girl, the Secretary has power to remove the responsibility for her daily care and control from an authorised carer pursuant to s 140 of the Care Act.

17. The foster mother sought internal review of the removal decision. She then applied to the Tribunal within the required time frame, being 28 days of being notified of the internal review decision (Civil and Administrative Tribunal Rules 2014 (NSW), r 23(3)(b)).

18. For these reasons, I find that the Tribunal has jurisdiction to hear the foster mother’s application for review of the Secretary’s decision to remove the foster children from her care. The Tribunal also has jurisdiction to hear her application for a stay under s 60(2) of the Administrative Decisions Review Act as she is entitled to make the application as a party to the proceedings.

Should the Tribunal grant the stay?

19. 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.”

20. 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].

21. 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)).

Interests of persons who may be affected

22. The persons who may be affected by the determination of the application include the girls, the foster mother and her husband, the Secretary and staff of the Department of Family and Community Services, who made the decision, the designated agency which is now responsible for the girls (Anglicare), the girls’ biological mother and biological father, the extended family of the foster mother and her husband, and the families of the girls’ biological parents.

23. I find that it is not in the girls’ interests to grant the stay.

24. The application for a stay first came before me on 30 August 2018. The stay hearing was adjourned to 5 September 2018 and the parties provided further submissions and evidence. On 5 September 2018, I made directions preparing the matter for final hearing, and set it down for hearing just over three weeks’ later. This was possible, in part, because the parties had provided a lot of evidence and submissions as part of the hearing of the stay application.

25. Given that the substantive hearing will happen in a relatively short time frame, I consider that it is in the girls’ best interests to remain where they are, pending the outcome of the hearing.

26. I accept Ms Rolfe’s evidence that she has received reports from an Anglicare caseworker, who had visited the carer’s home a number of times, that the girls are doing well in their placement. I also accept that the Anglicare caseworker told Ms Rolfe that the carer is very attuned to the girls’ needs and responds to them extremely well and that it is lovely to watch them and their relationship is very natural. Whilst this evidence is hearsay, it appears to be a precise account of what Ms Rolfe was told and I accept that, at least on the surface, the girls appear happy in their current placemet.

27. I also accept the foster mother’s evidence that, when she visited the girls and saw them with the new carer, one of the girls said to her she wanted to come home and both children called the foster mother and her husband, “Mummy” and “Daddy.” The girls naturally feel affection and attachment towards the foster mother and her husband and still identify the foster mother’s home as being their home. This does not necessarily mean they are not happy in their current placement or that it would be in their interests to return to the foster mother and her husband, pending the final outcome of the proceedings.

28. The girls have to attend a variety of medical appointments due to their conditions. The new carer has been keeping all of the girls’ medical appointments. The foster mother expressed concern that the new carer did not have all of the relevant medical information for the girls. I am satisfied that, if the new carer did not have this information at first, she now does.

29. The evidence establishes that the girls are currently in a safe and happy placement which meets their medical needs.

30. Whilst it is to be expected that the girls would miss the foster carer and her husband, and that the girls’ separation from them would cause the girls some distress, I do not consider that it is in their interests to be moved back to the foster mother’s care pending final orders, given that the final hearing will take place in a short space of time. The girls have had to adapt to a significant amount of change, moving to a new carer and a new environment about three months ago. It would be very disruptive for the children to move back to the foster mother’s care, in circumstances where they may need to be moved again, in less than a month’s time, if the foster mother is unsuccessful in her substantive application. This would be particularly difficult for them to understand and to adjust to, given their developmental delays.

31. The foster mother said that it was difficult for the girls’ biological father and his family to see the girls in their current placement, as it was a seven hour round trip from the father’s home. This factor does not overcome the consideration that it would be a great upheaval for the girls to be moved from their current placement, if the Tribunal’s decision was that they had to be moved again. The foster mother’s evidence is that the father is visiting the girls, despite the distance.

32. It is also in the girls’ interests to see their biological mother more regularly, as they do now they are in the new placement. Steps have been taken towards restoring the girls to their biological mother’s care. In this context, facilitating contact between the girls and their mother is particularly important.

33. It is in the interests of the foster mother and her husband that the girls be returned to them, as they care deeply for the girls and miss their company. I have given this consideration some weight.

34. The foster mother also said that her interests were affected because people in her community were aware of the allegations against her and, if the girls were not returned, she would not be vindicated. Whilst this may be so, the temporary return of the girls, pending final orders, is not likely to achieve the desired result of vindication in others’ eyes. In any event, this factor cannot outweigh the interests of the girls.

35. The foster mother also referred to the interests of her family members, including her children, her husband’s children, the foster mother’s sister, her husband’s sister, their families and the foster mother’s parents who live next door and regard themselves as the girls’ grandparents. I accept that all of these people have interests in the girls returning to the foster mother’s care. Many if not all of them are affected by the recent death of a young adult member of the family, and this would make the loss of the girls from the family more difficult for them.

36. It is in the interests of the girls’ biological mother that they remain in their current placement, where she can visit them more regularly. It is probably in the interests of the girls’ biological father and his family that they be returned to the foster mother.

37. The interests of the Secretary and of Anglicare are in maintaining the current arrangements.

38. Balancing all of these interests, I consider that the girls’ interests should prevail, having regard to the principle that, in a decision concerning a child, the safety, welfare and well-being of the child are paramount (see Care Act, s 9(1)). The girls’ interests are best served by them remaining in their current placement until the final determination of the matter, for reasons given above.

Secretary’s submissions

39. The Secretary made submissions in opposition to the stay. These included that the girls would be at risk of significant harm if they were returned to the foster mother’s care, due to the number of allegations made against her over a period of time. The foster mother vigorously denied that any of these allegations had substance. The Secretary also pointed to the foster mother’s failure to take the girls to several medical appointments. The foster mother explained that this had occurred at a time when she was dealing with the very serious illness and then death of her step-son.

40. It is not necessary for me to decide whether the girls would be at risk of significant harm if they were returned to the foster mother’s care, or whether her failure to take the girls to medical appointments is a factor tending against the grant of a stay. This is because I am satisfied that, even if the girls would not be at risk of significant harm in her care, and even if I could be confident that she would take the girls to all their medical appointments in the future, the stay should not be granted. Moving the girls prior to final orders would be unnecessarily disruptive in circumstances where there could be no certainty as to their long term care.

The public interest

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

42. The evidence indicates that the girls are safe and well cared for in their current environment. As submitted for the Secretary, it is government policy that foster children be restored to their biological parents, where possible. The Tribunal is entitled to have regard to this policy: Administrative Decisions Review Act, s 64(4). I accept Ms Rolfe’s evidence that an application to rescind the girls’ care orders, so as to return them to the care of their biological mother, is likely to be made within three months, under s 90 of the Care Act. As the girls see their biological mother more frequently with their new carer, this factor favours the refusal of the stay.

43. In all of the circumstances, it would be destabilizing for the girls to be moved out of the foster mother’s home again, should the Tribunal determine that the removal decision is not, at the time of the hearing, the correct and preferable decision. This appears, on the evidence, to be an outcome which is reasonably open, given the number of allegations made against the foster mother and the anticipated application for rescission of the girls’ care orders.

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

44. The Tribunal must consider whether a stay is necessary to secure the effectiveness of the determination (at final hearing). In Loveday v Commissioner for Fair Trading [2018] NSWCATAD 80 at [8], the Tribunal, constituted by Deputy President Hennessy, said:

“the words ‘to secure the effectiveness of the hearing’ include a situation where the applicant will suffer irreparable loss in the sense that no recompense for it can be obtained if the application is ultimately successful: Re Pelling and Secretary, Department of Aviation [1984] AATA 179; (1984) 5 ALD 638 at 639. It is not confined to the situation where a hearing would be pointless because the applicant will go out of business if a stay is refused.”

45. Deputy President Hennessy continued (at [18]): “the phrase ‘to secure the effectiveness of the determination’ includes taking into account circumstances where the applicant is likely to suffer irreparable harm in the sense that no recompense for it can be obtained even if the application for review is successful.”

46. I am not satisfied that a stay is appropriate to secure the effectiveness of the determination. It is true, in general, that the longer children remain in an alternative placement, the more likely that the Tribunal will consider that it is not the “correct and preferable decision” to return them to an applicant’s care (Administrative Decisions Review Act, s 63(1)). However, given that it is just over three weeks until the final hearing, and that the girls have been in their current placement for about three months, refusing the stay is unlikely to make a significant difference to the outcome. The foster mother is not likely to suffer irreparable harm if the stay is refused, in the sense that no recompense for it can be obtained even if the application for review is successful.

Orders

47. For these reasons, I make the following order:

1. The applicant’s application for a stay is dismissed.

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

Registrar

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: 11 September 2018