EER v Secretary, Department of Communities and Justice

[2020] NSWCATAD 199

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EER v Secretary, Department of Communities and Justice [2020] NSWCATAD 199

Hearing dates:

1 June 2020

Date of orders:

20 August 2020

Decision date:

20 August 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

R Bailey Senior Member
L Porter General Member

Decision:

The decision of the respondent to remove the responsibility for the daily care and control of Miss A from Ms W is affirmed.

Catchwords:

ADMINISTRATIVE LAW- Children and Young Persons (Care and Protection) Act 1988-Correct and preferable decision-Whether orders sought can be granted

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Administrative Decisions Review Act 1997 (NSW)

Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW)

Children and Young Persons (Care and Protection) Act 1998 (NSW)

Cases Cited:

YG and GG v Minister for Community Services [2002] NSW CA 247 at 25

Texts Cited:

None cited

Category:

Principal judgment

Parties:

EER (Applicant)
Secretary, Department of Communities and Justice (Respondent)

Representation:

Solicitors:
Applicant (Self Represented)
V Nguyen (Respondent)

File Number(s):

2020/00047489

Publication restriction:

Section 64 Civil and Administrative Tribunal Act 2013 restricts publication of information that will identify the applicant, the children, witnesses and any evidence given in the proceedings which is likely to identify any of those persons.

REASONS FOR DECISION

Introduction

1. In these Reasons for Decision, the names of all individuals concerned are redacted, for the sake of protecting the privacy of the child (Miss A) and the applicant.

2. On 13 February 2020, the applicant filed an application for stay or interim order, following the decision of the Department of Community and Justice (the Department) to place Miss A in long term care with another family member (Ms S).

3. The applicant is the great-grandmother of Miss A, aged 11, who is a child in the parental responsibility of the Minister for Families, Disabilities and Community Services NSW.

4. At the time the applicant filed her application, Miss A was not in her care. Miss A was in the short-term care of another relative (Ms W), her maternal second cousin, who is a provisional kinship carer, authorised by the Department to care for Miss A.

5. On 14 February 2020, the respondent removed the responsibility for the daily care and control of Miss A from Ms W. Miss A was placed in the care of her adult sister, Ms S.

6. Ms S has been authorised by the respondent as the long-term carer for Miss A and her other sister (Miss J), who is a year older than Miss A.

7. The change of placement was carried out with the agreement of Ms W and Ms S.

8. On 20 February 2020, the Tribunal:

1. determined that the administrative decision, the subject of these proceedings, is the decision of the respondent to remove the responsibility of the daily care and control of Miss A from Ms W;

2. determined that the Tribunal has jurisdiction to hear the application and decided to deal with the application, despite the fact that the applicant had not applied for an internal review;

3. refused the application for the stay;

4. adjourned the substantive hearing to a later date.

9. The matter before the Tribunal, on this occasion, is the substantive hearing to consider whether the decision of the respondent made on 14 February 2020, to remove the responsibility of the daily care and control of Miss A from Ms W is the correct and preferable decision.

Background

10. The following chronology has been extracted from an Affidavit of Anne Buchanan, dated 19 February 2020. The Tribunal understands that the chronology is not disputed.

11. Miss A was born in April 2009 to Ms G and Mr S. When she was four days old, the Department assumed care responsibility for Miss A.

12. This was confirmed by way of final order, on 15 September 2010, which placed Miss A under the parental responsibility to the Minister until she attained the age of 18.

13. On 15 October 2019, the Department placed Miss A in the care of Ms W, her maternal second cousin, and a provisional kinship carer, authorised by the Department to care for Miss A and her sister, Miss J, who was born in 2008.

14. On 25 October 2019, Ms W arranged for the applicant to care for Miss A and Miss J, for 21 days, while Ms W travelled overseas. The Department agreed to this arrangement.

15. On 29 October 2019, what has been described as ‘a critical incident’ occurred at the applicant’s home, and Miss A attempted to abscond. The Police were involved, and Miss A was conveyed to hospital.

16. On 30 October 2019, the applicant requested the Department to arrange a new placement for Miss A. Miss J, however, remained in the applicant’s temporary care.

17. On 31 October 2019, the applicant requested that Miss J also not return to her care. Miss J was then placed with her maternal aunt, Ms G, on 1 November 2019.

18. On 15 November 2019, Miss A returned to the care of Ms W when she returned from her overseas travel. Miss J remained in the care of Ms G.

19. On 31 December 2019, Ms G requested the Department arrange an alternative placement for Miss J. After the breakdown in this placement, Miss J was placed in a number of emergency placements.

20. On 24 January 2020, the applicant agreed for Miss J to be placed in her care, on an emergency provisional basis, for four days, including the Australia Day long weekend.

21. However, on the following morning, the applicant relinquished care of Miss J which resulted in Miss J spending a night in a hotel. She was then transitioned to the placement of her sister, Ms S.

22. On 14 February 2020, the Department moved Miss A from the placement with Ms W to join her sister in the placement with their adult sister, Ms S.

23. This change of placement was supported by Ms W, Ms S, Miss J and Miss A. However, the applicant strongly opposes this decision.

Tribunal’s jurisdiction

24. On 20 February 2020, the Tribunal determined that it has jurisdiction to hear the application pursuant to the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act), (Section 30); the Administrative Decisions Review Act 1997 (NSW) (the ADR Act) (Section 7); the Community Services (Complaints, Review and Monitoring) Act 1993 (the Community Services Act) (subsection 28(1)); and the Children and Young Persons (Care and Protection Act) 1998 (the Care Act) (subsection 245(1)(A1) and (C)).

25. The role of the Tribunal is to determine what decision is the correct and preferable decision, having regard to the material before it, including any relevant factual material and applicable law: see subsection 63(1) of the ADR Act. The applicable law is that set out in the Care Act and the Care Regulation.

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

27. Section 8 of the Care Act sets out the Act’s objects:

(a)    that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and

(a1)    recognition that the primary means of providing for the safety, welfare and well-being of children and young persons is by providing them with long-term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles, and

(b)    that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and

(c)    that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment.

28. Section 9 of the Care Act sets out the principles for administration of the Act:

(1)    This Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount.

(2)    Subject to subsection (1), the other principles to be applied in the administration of this Act are as follows:

(a)    Wherever a child or young person is able to form his or her own views on a matter concerning his or her safety, welfare and well-being, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child or young person and the circumstances.

(b)    In all actions and decisions made under this Act (whether by legal or administrative process) that significantly affect a child or young person, account must be taken of the culture, disability, language, religion and sexuality of the child or young person and, if relevant, those with parental responsibility for the child or young person.

(c)    In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child’s or young person’s development.

(d)    If a child or young person is temporarily or permanently deprived of his or her family environment, or cannot be allowed to remain in that environment in his or her own best interests, the child or young person is entitled to special protection and assistance from the State, and his or her name, identity, language, cultural and religious ties should, as far as possible, be preserved.

(e)    If a child or young person is placed in out-of-home care, arrangements should be made, in a timely manner, to ensure the provision of a safe, nurturing, stable and secure environment, recognising the child’s or young person’s circumstances and that, the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement.

(f)    If a child or young person is placed in out-of-home care, the child or young person is entitled to a safe, nurturing, stable and secure environment. Unless it is contrary to his or her best interests, and taking into account the wishes of the child or young person, this will include the retention by the child or young person of relationships with people significant to the child or young person, including birth or adoptive parents, siblings, extended family, peers, family friends and community.

(g)    If a child or young person is placed in out-of-home care, the permanent placement principles are to guide all actions and decisions made under this Act (whether by legal or administrative process) regarding permanent placement of the child or young person.

Evidence

29. The applicant tendered the following exhibits:

1. A1 – bundle of documents submitted on 6 April 2020, which is the Family Group Conferencing Plan (15 pages);

2. A2 – letter of MB, undated;

3. A3 – statement of the applicant, undated;

4. A4 – statement of CG (12 pages);

5. A5 – Police records;

6. A6 – extract from Form 35 titled “Significant change in relevant circumstances” (2 pages);

7. A7 – contact record with the Department of Family and Community Services;

8. A8 – further statement of the applicant, undated, attaching Affidavit of Ms AM, dated 27 April 2018, and handwritten minutes of a meeting on 6 November 2013.

30. The respondent tendered the following exhibits:

1. R1 - Affidavit of Anne Buchanan, dated 19 February 2020;

2. R2 – Order of the Children’s Court, dated 15 September 2010;

3. R3 – Affidavit of Ms Buchanan, dated 20 April 2020.

Applicant’s argument

31. In the application she filed on 13 February 2020, the applicant seeks the following orders:

“Stay of change of placement, placement of (Miss A) to be with me”.

32. The applicant made oral submissions at the directions hearing on 20 February 2020 and tendered written evidence. She made it clear that she strongly opposes the respondent’s decision to place Miss A in the same household as her sister, Miss J, in the care of their older sister, Ms S.

33. The applicant submitted that Miss A is at risk of serious harm if she remains in the same household as Miss J, because Miss J is violent and there is a risk that Miss A will be assaulted.

34. Furthermore, the applicant argued that there is a potential risk of sexual harm to Miss A, because, whilst living with Ms S, she has had contact with her stepfather, Mr K, who she claims is a known sexual predator.

35. The applicant conceded that she is not an authorised carer, as defined by the Act, but told the Tribunal that she currently has the care of her 10-year-old grandson, Master G, with the knowledge of the respondent.

36. She submitted that the Tribunal should infer that she is a suitable person to care for Miss A, because of the Department’s implied consent to her caring for Master G.

37. The applicant also submitted that the current placement is not operating as well for Miss A as the respondent suggested in its written submissions.

38. The applicant told the Tribunal that on 10 May 2020 she noticed a Facebook page from Mr S, the brother of Ms S, indicating that the house in which Miss A is living, was on fire. Furthermore, she said that she was aware that on 18 May 2020 Ms S had required Mr S to assist her, because the girls had been fighting.

39. She raised concerns about the fact that Miss A had shaved her head and also questioned whether Miss A would have adequate access to counselling, psychologists, tutoring and speech pathology.

40. The applicant also told the Tribunal that Ms S’s mother has cancer and she has concerns about Miss A, and her sister, bringing transmittable diseases home from school which may impact Ms S’s mother’s health.

41. At the hearing, the applicant told the Tribunal that, if she were not to be permitted to care for Miss A, she requested the Tribunal to remove Miss A from the care of Ms S and place her with a different family member, on the South Coast.

Respondent’s argument

42. The respondent submitted that the Tribunal cannot make the order to place Miss A in the applicant’s care, because such an order would be unlawful.

43. The respondent noted that Section 136(1) of the Children and Young Persons (Care and Protection Act) 1998 (NSW) provides that:

“Statutory out of home care may be provided in respect of a child or young person only by an authorised carer”.

44. The respondent submitted that the applicant was authorised on a temporary/provisional basis to care for Miss A for short periods only. The applicant does not hold a valid authorisation as carer for Miss A.

45. Therefore, the respondent submitted, the applicant must make an application for such authorisation, before she can have standing to seek the order that Miss A should be placed in her care.

46. Furthermore, the respondent submitted that evidence relating to critical incidents that occurred when Miss A and her sister were in the applicant’s care in the past, suggest that the applicant has not been able to provide a suitable placement for the girls.

47. The respondent also noted that there is no mechanism in the Children and Young Persons (Care and Protection) Act 1998 (NSW) or the Children and Young Persons (Care and Protection) Regulation 2012 enabling an individual to apply to have a specific child placed with them.

48. In relation to the respondent’s decision to place Miss A with Ms S, the respondent provided written and oral submissions.

49. In response to the applicant’s submission that Miss A might be at risk of assault from Miss J, if they were to reside in the same household, the respondent argued that:

• The aggressor identified in the event that had attracted Police attention, which occurred on 29 October 2019, was Miss A herself.

• The respondent also argued that the trigger for Miss A’s behavioural outburst on that occasion, according to the Police report, was the contents of the conversation that the applicant had with Miss J.

• Evidence provided by Ms Buchanan, who is the Manager Case Work who has been dealing with Miss A, stated that since moving to her new placement, there has been no evidence of any conduct which would exceed what might be considered normal interaction between siblings.

• Ms Buchanan also recorded that Miss A has strongly expressed her wishes to live in the same house with her sister at Ms S’s home. The respondent argued that this suggests that any conflict between the siblings was temporary.

50. In relation to the question of whether Miss A is at increased risk of sexual harm whilst placed with Ms S, the respondent submitted:

• Allegations of sexual impropriety made against Mr K have never been substantiated by the Department. The girls have not made any disclosure of this nature. It is, therefore, incorrect for the applicant to allege that Mr K is a known sexual predator;

• The Department has taken steps to supervise all contact between Miss A and Mr K which are adequate to address the concerns raised by the applicant.

51. The respondent also submitted that the Tribunal should find that the decision of the respondent to remove the responsibility for the daily care and control of Miss A from Ms W, and to grant such responsibility to Ms S is the correct and preferable decision because:

1. The placement with Ms W was only intended to be a temporary placement;

2. The placement with Ms S was intended to be the long-term placement for Miss A.

3. Ms S has been authorised by the respondent as the long-term carer, with the agreement of Ms W, Ms S and the girls concerned;

4. The observations of the Manager Case Work since the placement on 14 February 2020 confirms that the placement adequately meets Miss A’s needs. She has started and is happy at school. She receives support from teachers, counsellors and relatives.

5. The placement is culturally appropriate, and Miss A will have increased contact with her Aboriginal relatives and cultural events in this placement;

6. Miss A has expressed her own wishes to live with her sisters. She is capable of expressing her views and wishes clearly.

The Tribunal’s reasoning

52. The Tribunal considered the evidence, both oral and documentary. It took into account the submissions of the parties, as well as the important principles set out in Section 9 of the Care Act and the objects of the Civil and Administrative Tribunal Act 2013. As previously indicated, the Tribunal’s role is to determine the correct and preferable decision, having regard to the material before it.

53. There being no dispute about the fact that the applicant is not an authorised carer as defined by the Act, the Tribunal accepted the respondent’s submission to the effect that the Tribunal cannot make an order placing Miss A in her care.

54. Although the applicant withdrew from that position, to some extent, during the hearing, and suggested that Miss A should be placed in an alternative placement with a relative on the South Coast, she did not provide any further details of that individual, or whether the proposed carer is an authorised carer. In such circumstances, this is a proposal that the Tribunal cannot consider.

55. It remains, therefore, for the Tribunal to determine whether the respondent’s decision to place Miss A in the care of Ms S is the correct and preferable decision.

56. The Tribunal noted the applicant’s concerns which can be summarised as falling into three main categories:

1. whether Miss A has appropriate access to care and support including counselling;

2. whether Miss A is at risk of violence at the hands of her sister, Miss J; and

1. whether Miss A is at increased risk of sexual harm as a result of contact with Mr K.

57. There was no evidence before the Tribunal in relation to Miss A’s wishes, apart from that contained in the affidavits of Ms Buchanan. As such, Ms Buchanan’s evidence in relation to this issue is undisputed.

58. On that basis, the Tribunal accepts that Miss A’s own wish is to remain in her current placement. This is a very important factor for the Tribunal to consider.

59. Similarly, there is no evidence to dispute Ms Buchanan’s evidence that Miss A has now commenced schooling and appears to have settled well in that environment. Ms Buchanan corroborated the applicant’s evidence that Miss A has shaved her head since starting school. However, she gave oral testimony that this was because Miss A wished to raise funds for a charity by doing so.

60. The Tribunal does not consider this to be a factor of concern and certainly not one which would suggest that the current placement is not in Miss A’s best interests.

61. The Tribunal also noted that there is no evidence that there has been violent conflict between Miss A and Miss J since she has been placed with Ms S.

62. There is also no evidence that Mr K has had personal contact with Miss A, although the Department is aware that telephone contact between them has been supervised and monitored. In fact, all contact with family members is currently supervised.

63. The Tribunal accepts that the applicant cares deeply about the welfare of Miss A and her sister. However, in the absence of evidence to suggest that the concerns that she has raised are supported by recent evidence, there is nothing to suggest that the placement of Miss A with Ms S, who is after all her sister, is not in her best interests.

64. There is, therefore, no evidence which would justify a finding that the decision of the respondent was not the correct and preferable decision.

65. The Tribunal, therefore, decided to affirm the respondent’s decision.

Orders

1. The decision of the respondent to remove the responsibility for the daily care and control of Miss A from Ms W is affirmed.

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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: 20 August 2020