ELR v Secretary, Department of Communities and Justice

[2022] NSWCATAD 144

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

ELR v Secretary, Department of Communities and Justice [2022] NSWCATAD 144

Hearing dates:

14 and 15 January 2021, 25 February 2021
Submissions closed, 24 March 2021
Findings of the respondent’s reportable conduct unit, 7 February 2022

Date of orders:

05 May 2022

Decision date:

05 May 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member
D Crowley, General Member

Decision:

The decision of the Respondent to remove the children from the care of the applicants made on 28 May 2020 is affirmed.

Catchwords:

ADMINISTRATIVE LAW – review under section 245 Children and Young Persons (Care and Protection) Act 1998 (NSW) – child protection – care and protection of children – restoration of children – unacceptable risk of harm

Legislation Cited:

Administrative Decisions Review Act 1997(NSW)

Adoption Act 2000

Adoption Information Act 1990

Children and Young Persons (Care and Protection) Regulation 2012

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

Disability Inclusion Act 2014

Cases Cited:

Briginshaw v Briginshaw [1938] HCA 34

Johnson v Page [2007] Fam CA 1235

M v M[1988] HCA 68

Re Benji & Perry (2018) NSWSC 1750

The Department of Community Services v "Rachel Grant", "Tracy Reid", "Sharon Reid and "Frank Reid" [2010] CLN 1

YG v CG Minister for Community Services [2002] NSWCA 247

Category:

Principal judgment

Parties:

ELR & ELS (Applicants)
Secretary, Department of Communities and Justice (Respondent)

Representation:

Counsel:
Mr M Higgins (Respondent)

Solicitors:
Dillon-Smith Lawyers (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2020/296408

Publication restriction:

Pursuant to s 65 of the Civil and Administrative Tribunal Act 2013, in proceedings for the purposes of the community welfare legislation of the Community Services (Complaints, Reviews and Monitoring) Act 1993, it is an offence to publish or broadcast, without the consent of the Tribunal, the name of any person:

(a) who appears as a witness before the Tribunal in these proceedings, or

(b) to whom the proceedings relate,

(c) who is mentioned or otherwise involved in these proceedings, whether before or after the proceedings are disposed of.

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. ELR and ELS are authorised carers under the Children and Young Persons Act 1998 (the “Care Act”). The Department of Communities and Justice (formerly known as Department of Family and Community Services) (“the respondent”) is a New South Wales Government department providing, amongst other things, case management for out of home care to children in New South Wales.

2. A publication restriction applies in this matter. We have used pseudonyms and refer to the applicants as “ELR” and “ELS” and collectively as (“the applicants”).

3. The applicants had the responsibility for the daily care and control of two children, “AA” who was 6 years of age at the time of the hearing and “BB” who was 2 years of age (collectively “the children”). The applicants were known to the children’s mother. The children’s aunt, resided with the applicants. The children’s mother relied upon the applicants for family support as they had cared for Child BB on a regular basis since his birth. Following a temporary care arrangement in February 2018, Child AA was placed with the applicants.

4. Care proceedings were commenced in the Children’s Court on 28 June 2018. On 30 August 2019, the Court made short-term care orders placing the children in the parental responsibility of the Minister for two years. The applicants were subsequently authorised as authorised carers for the two children.

5. The Children were removed from the care of the applicants following a decision made by the respondent on 4 June 2020. The decision was internally reviewed on 11 September 2020 (“the reviewable decision”). The reviewable decision was made by the respondent on the basis of a combination of factors that informed the respondent of the need to remove the children from the placement. No one factor was solely determinative or responsible for the removal.

6. The reviewable decision is an administratively reviewable decision.

7. The applicants are seeking that the Tribunal set aside the reviewable decision and return the two children to their care. It is this matter which is before us for determination.

The Hearing

8. The hearing took place over three days, namely, 14, 15 January 2021 and 25 February 2021. Submissions closed on 19 March 2021. A determination made by the respondent’s reportable conduct unit (the “RCU”) was made on 7 February 2022. Additional submissions made by the applicants were received on 22 February 2022. However, we have only considered the decision of the RCU in determining this matter. We have not considered the further submissions on the basis that they were served outside of the Tribunal’s orders and no application to re-open the proceedings was formally made. If it had, we note the respondent’s objection which has been raised in that regard.

9. The applicants were represented by a solicitor. The respondent briefed counsel. The applicants and the respondent’s manager for case workers were each cross-examined.

Relevant Legal Matters

10. The Tribunal’s power to review decisions concerning authorised carers arises under s 245(1)(c) the Care Act. The section relevantly provides:

245 Decisions that are administratively reviewable by Civil and Administrative Tribunal

(1) Each of the following decisions made under or for the purposes of this Act or the regulations is an administratively Reviewable Decision for the purposes of section 28 (1) (a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993:

…

(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,

…

(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.

…”

11. Other provisions of the section do not concern these proceedings. However, there are commensurate provisions enlivening the Tribunal’s jurisdiction to conduct an administrative review. Those provisions arise under the Community Services (Complaints Reviews and Monitoring) Act 1993. Section 28, relevantly provides:

28 Applications to Tribunal for administrative reviews of decisions

(1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions:

(a) a decision that is an administratively Reviewable Decision under section 193 of the Adoption Act 2000, section 36 of the Adoption Information Act 1990, section 35 of the Disability Inclusion Act 2014 or section 245 of the Children and Young Persons (Care and Protection) Act 1998,

….

12. There was no dispute the reviewable decision concerning the removal of the children from the applicants’ daily care and control falls within the jurisdiction of the Tribunal.

The applicable legal framework

13. The objects of the Care Act, are set out in s 8 and provide as follows:

(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 wellbeing 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.

14. The Care Act is to be administered under the principle that the safety, welfare, and well-being of children are paramount (the paramount concern): s 9(1) of the Care Act.

15. Subject to that, the Care Act sets out other, particular principles to be applied in the administration of the Act. These are found in ss 9(2), 10, 11, 12 and 13 of that Act.

16. The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice s 38 the NCAT Act.

17. The standard of proof is on the balance of probabilities. The High Court decision in Briginshaw v Briginshaw [1938] HCA 34 is relevant in determining whether the burden of proof, on the balance of probabilities, has been achieved.

18. When determining issues of, amongst other things, removal and restoration of a child in all decisions under the Care Act involving the paramount concern of safety, welfare and well-being of a child, the proper test to be applied is that of "unacceptable risk to the child": The Department of Community Services v "Rachel Grant", "Tracy Reid", "Sharon Reid and "Frank Reid" [2010] CLN 1 per Judge Marien at [61]. The appropriate test is whether there is an "unacceptable risk" of harm to the child: see M v M [1988] HCA 68 at [25].

19. Whether there is an "unacceptable risk" of harm to the child is to be assessed from the accumulation of factors proved according to the relevant civil standard, as discussed above: see Johnson v Page [2007] Fam CA 1235.

20. Chapter 8 of the Care Act provides a model for the organisation of out-of-home care for children and young people.

21. Statutory out-of-home care may be provided in respect of a child and young person only by an authorised carer (s136 of the Care Act). Section 137 of the Care Act defines what is meant by the term ‘authorised carer’. This includes the principal of a ‘designated agency’ and ‘a person who, in accordance with the regulations, is authorised as a carer.’

22. The conditions of authorisation are set out in clause 34 of Children and Young Persons (Care and Protection) Regulation 2012 (the ‘Regulation’), which include a requirement that the authorised carer ‘must comply with the code of conduct for authorised carers.’ The ‘code of conduct’ is defined to mean the code of conduct for authorised carers approved by the Minister. Clause 35 of the Regulation provides that the designated agency that authorises a carer under the abovementioned clauses must cause the person to be given a copy of the authorisation in writing and the authorisation must set out the conditions of that authorisation.

23. Clause 41 of the Regulation makes provision for the management of behaviour of children and young persons and the obligation of the respondent to act where there may be a breach. Clause 41, provides:

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.

[Our emphasis in bold]

Issue

24. The application is dated 8 October 2021 (received on 27 October 2021). The applicants seek for the Tribunal to review the Reviewable Decision that had the effect of removing from ELR and ELS the daily care and control of the Children. We must determine whether the Reviewable Decision is the correct and preferable decision having regard to any relevant factual material and any applicable written or unwritten law.

Evidence

25. The parties filed a joint court book marked (Ex-1).

26. The letter from the RCU dated 7 February 2022.

27. The parties filed and rely upon written submissions.

The reasons provided by the respondent for the Reviewable Decision

28. On 4 June 2020, the respondent wrote to the applicants giving notice that a decision had been made to remove from the applicants the daily care and control of the children. The grounds relied upon in the decision included:

1. ELS’ declining mental health;

2. Child AA’s deteriorating mood and general anhedonia;

3. allegations of physical discipline of AA, and consequential admissions by ELS of some physical discipline;

4. impact upon AA of the applicants’ poor relationship with the birth mother in so far as it inhibited his preparedness to speak about his mother in the presence of the applicants;

5. risk of psychological harm to AA by reason of a disparity in emotional support with that of the younger sibling, and consequential substantiation of psychological harm to AA;

6. deterioration in AA’s behaviour, in a large part attributable to the conduct of ELS towards him: e.g. calling him a ‘liar’, ‘dog’, making him wear a bib, and consequential substantiation of psychological harm to AA;

7. AA being told by ELR that he ‘needs to go and live elsewhere’ in the context of a child with a traumatic background and poor attachment, and consequential substantiation of psychological harm to AA;

8. allegations of corporal punishment of AA by ELR, and consequential limited admissions and unwillingness of ELR to accept corporal punishment was against policy and practice, that ELR continued to use this discipline after being advised to stop;

9. poor relationship with the applicants with the birth mother such that it resulted in derogatory remarks or names for the mother, and unwillingness to support reasonable requests for additional contact of the children with the birth family, and consequential substantiation of psychological harm to AA;

10. adverse impact on AA’s sexualised behaviours upon ELS’ mental health, and consequentially upon the placement;

11. unwillingness of the applicants to do the necessary and suggested reading for strategies and education of providing trauma informed care for the children;

12. ELR’s emotional distress on 28 May 2020 around the efforts to facilitate a birthday contact for AA with the birth mother, and the punitive way in which the applicants dealt with it resulting in stress to AA; and

13. sharing confidential information about the children.

29. The Reviewable Decision summarises that following case work assessments, the children were removed as a consequence of: psychological harm; corporate punishment; and multiple breaches of the Code of Conduct in relation to privacy, physical discipline and their right to have meaningful relationships with the birth family.

30. Following the applicants’ request to have the initial decision internally reviewed, the internal reviewer affirmed the decision of 4 June 2020.

31. The applicants seek the Tribunal to make orders to set aside the Reviewable Decision and order for the children to return to their care. The grounds upon which the applicants rely to support their application include the following:

1. the respondent provided no formal training to the applicants;

2. the applicants cared for the children on a full time basis at their home for nearly three years from around April 2017 to their removal in May 2020;

3. at the time the applicants began caring for the children, BB was three months old;

4. the applicants were the primary carers for BB for all of his life at the time of removal;

5. AA was four years old. He also had been cared for by the applicants for almost all of his young life;

6. the applicants deny most of the allegations raised by the respondent against them relating to their care of the children;

7. the applicants say the reviewable decision was not in the best interests of the children and the respondent failed to take into account relevant considerations such as the bonding and attachment of the children to the applicants and the damage to the children in removing them so suddenly from their primary carers;

8. the respondent failed to properly consider relevant information such as the applicants’ version of events and rejection of the allegations made by the respondent against them;

9. the respondent took into account irrelevant considerations being minor issues that could have been resolved through training and support which should have been provided to the applicants by the respondent.

32. The applicants further submit that they were denied contact with the children after their removal, and that the removal was damaging to the children as it caused them distress. The respondent has denied the truth of the complaints in the preceding paragraph at (a), (g), (h) and (i).

33. The respondent opposes the orders sought by the applicants in administrative review and says that the decision of the Secretary was the correct and preferable decision.

34. It is not in contest that leading up to and immediately prior to the removal of the children their challenging behaviours were escalating, particularly, the behaviour of AA.

35. Following the removal of the children from the care of the Applicants, the children were placed with emergency carers employed by Mackillop Family Services as this agency was also managing the care of the children’s older half-sibling.

Evidence of ELR

36. ELR’s daughter’s best friend is the aunt of the children. From time to time ELR’s daughter and best friend used to look after the children. The children would be brought to the home of ELR and ELS and the children’s aunt began to live with them.

37. After caring for the children on an informal basis, ELR and ELS had a discussion which led to the care arrangements which are the subject of these proceedings. ELR deposes that during those discussions ELS was “a bit worried about taking on such young children when ours were almost all grown up, but he agreed.” ELS converted their study into a bedroom. The children’s birth mother became part of the family and lived with them for up to three years until she moved into rental accommodation.

38. At the time of this hearing the applicants’ daughter, who is 17 years of age, was the only child residing with them.

39. At the beginning of the care arrangement the applicants attended an initial training session which took place over a few hours.

40. The applicants were aware that AA had a number of challenging behaviours resulting from a traumatic early childhood when he was in the care of his birth mother. ELR took AA to various health care practitioners, including a Paediatrician, Dr Goodhew. At the beginning of the care arrangement AA was being prescribed Catapres to assist him with sleeping. ELR arranged for AA to regularly consult a Psychologist, Belinda Drysdale. Some of the behaviours which resulted in the referral to Ms Drysdale, included AA sticking him finger up his bottom and saying inappropriate things to the applicant’s daughters such as take your clothes off or why don’t you kiss your boyfriend.

36. ELR and ELS attended various consultations with Ms Drysdale to talk about AA and his behaviours. During the term of the care arrangement AA regularly had nightmares and night terrors. He would wake up screaming in a sweat.

37. AA’s behaviours began to increase. After discussion with Ms Drysdale, she informed the applicants: “These behaviours will start to get worse as he gets older and he remembers more about his early trauma. This is something you will just need to deal with and support him around.”

38. A JIRT investigation commenced after allegations were made by BB about his father touching him. The investigation is described by ELR as being a stressful time for AA.

39. ELR deposes that she and her husband were “not provided with much support or training in relation to the children. Initially we were given training for one night for a few hours with other foster carers and on another occasion (my daughter) and I went to a trauma counselling course for a day. Apart from that we were just given things to read which the case workers were aware was difficult for me and then the case workers began to turn up at the end and were generally critical.”

40. ELR admits that she had some ‘negative feelings’ towards the children’s birth mother. ELR deposes that she was the target of a number of nasty text messages and phone calls from the birth mother over a period of time which she found stressful. ELR denied that when she met up face to face with the birth mother and the children that things were ‘tense’.

41. Overall ELR denies that she breached multiple sections of the Code of Conduct. However, she accepts that on occasion she did smack AA’s hand. ELR also admits that on one occasion she smacked BB on the bottom because he was trying to take his nappy off when it was full of poo.

42. ELR denies that she did not support reasonable requests for family visits. She said in evidence in chief that she would routinely organise these and it was only on one occasion immediately before the children were removed that she cancelled a birthday party for AA. ELR said the birthday party did not go ahead because AA was removed from their care. ELR accepts that her husband, ELS, was under a great deal of stress over when ELS’s mental and physical health declined. The stress related to pressure at work at work. ELS was not coping well as he had to travel three hours to Sydney and three hours back to home. ELS found it difficult during this time given the demands of two young children and lack of sleep. Two years prior to caring for the children ELS had seizures which were related to the stress of his work. ELR deposes that during periods of stress at work ELS would drink more than he would usually and ELR would ‘tell him off about this’. ELR denied that he appeared intoxicated but agreed that ELS was charged with a DUI offence with no conviction being entered as he was in a low range of offending.

43. Since having the seizures ELS has not been able to drive.

44. ELR agreed that during the “incredibly stressful period when he did not know what was happening with his health” ELS had said once or twice that he did not want the children and he wanted to relinquish them. However, ELR said that these comments had been given too much weight by the respondent in the context of their ongoing commitment and love for the two children.

45. ELR agreed that she had said to her husband that she was going to put the children first and it was either the children or her, referring to their relationship.

46. ELR denied that she yelled at AA. She agreed that on occasion she would raise her voice if he was not listening. ELR deposes that when his birth mother was pregnant and had a new baby it had a significant effect on him. His toileting behaviours declined and he began to wet the bed. ELR said that AA said words to the effect “why does my mummy have [new baby] and not me?”. ELR said he seemed really sad about that for a period.

47. ELR discussed this with Ms Drysdale and was told the decline in his behaviours may be that he is reverting himself to being a baby.

48. ELR admitted that ELS called AA a ‘dirty dog’. She said at the time ELS was joking and his comments were not done in anger or meaning to hurt AA. ELR said that she “pulled ELS up on that on a number of occasions and said do not say that to him”.

49. ELR denies ELS ever assaulted AA by hitting him across the head.

50. Towards the end of the placement, ELR said that the respondent started to take a negative approach towards herself and ELS. She asserts that insufficient training and education was provided to both herself. ELR denied that she made AA stay in his room for a whole day. She said that AA was never made to wear a bib other than if the family were eating spaghetti.

51. ELR admitted that on one occasion she said to AA that he was going to another home. This comment was made at a very stressful time and she acknowledges the hurt that must have been caused to AA and apologises for that. During this period ELS was in hospital and ELR felt that she was not being supported by the respondent in being able to cope with the two boys on her own.

52. Generally, in relation to the alleged lack of support from the Department, ELR deposes that the Department knew she had difficulty in reading. Despite this, the Department gave her large amounts of reading material which was supposed to supplement face to face training. Following periods of stress and tension which had been building up, ELR admits that at one case work visit she was crying and clearly very upset.

53. ELR said she would still be able to work with the Respondent if the children were placed back into her care and that she would do anything to assist the boys to be restored to her family.

54. In cross-examination ELR agreed with a number of questions pertaining to the importance of maintaining the maternal family relationship for the children. ELR agreed the respondent offered to her and her husband the assistance of a psychologist to be more informed about caring for children with a traumatic background. In that regard ELR and ELS were referred to Mr Hancock, Psychologist. ELR agreed that one of the aims of this referral was to develop strategies to manage, in particular, AA’s behaviour and contact with the maternal family. ELR agreed that one of the things that Mr Hancock encouraged was for her and her husband to maintain a cooperative relationship with the maternal family and to avoid conflict. ELR said the respondent encouraged her and her husband’s participation with Mr Hancock. Annexed at ‘D’ to the Affidavit of Ms Fasoulas sworn 24 December 2020 is a case note. ELR agreed that she and her husband declined further support in managing AA’s behaviours as they “had a good handle on things at the moment and AA’s behaviour was not that bad at present.”

55. ELR could not recall any conversation with Ms Fasoulas or another case manager concerning the use of social media (Facebook) and the confidentiality of the children. She also could not recall whether her use of social media caused stress to the maternal family concerning certain posts. However, ELR agreed that in November 2018 during a home visit she allowed the children to be photographed in a modelling shoot and their photographs being published on social media. Despite an intention to do so, the children’s mother became upset when she viewed the photographs.

56. ELR agreed that the discipline and management of her own children was different to the required management of children with a trauma background such as AA and BB. ELR agreed that in August 2018 they did not need any extra support from the respondent and viewed ‘smacking’ in any form was not an appropriate management technique for the children.

57. In August 2018, ELR said that AA’s behaviour became significantly worse after visits with his parents. AA developed an intermittent stutter, his behaviour at preschool declined and both ELR and ELS continued consulting Mr Hancock.

58. The cross-examination then explored ELR and ELS’ management of ELS’ declining ill-health. ELR agreed at that period of time she described her predicament as “hitting a wall” as described in the case officer’s notes. The case note records ELR being offered some assistance to take the pressure off the family. ELR is recorded as indicating ‘things will begin to return to normal now that she has her daughter [not for publication] back on deck and able to help out.’ It was put to ELR that the respondent offered assistance such as respite, which proposition ELR denied.

59. ELR agreed that in December 2018, the respondent was offering to provide strategies to deal with contact visits with the children’s parents and how that could be communicated.

60. ELR said they attended two sessions with Mr Hancock. She said they ceased consulting Mr Hancock due to scepticism of his ability to provide assistance. She said: “he is a young guy and did not come up with a lot of strategies.” ELR went on to say that despite only attending two sessions she could tell when she met Mr Hancock that his assistance was not going to be helpful. ELR agreed with the comments in Mr Hancock’s report dated 29 January 2019: “during sessions, ELR and ELS expressed scepticism about the purpose of participating in the intervention, and expressed the perception that AA’s difficulties would be better addressed by ceasing family contact. Further sessions were planned, however ELR and ELS missed or cancelled appointments on four occasions. The referral was closed due to low engagement.” ELR agreed that reference to family contact was the children’s maternal family.

61. We have placed significant weight on the findings of Mr Hancock with respect to the cessation of his intervention where he states: “Intervention was terminated before a plan sessions [sic] could be delivered, and was therefore unlikely to have a significant positive impact on ELR and ELS’ skills or understanding of how to best support AA.” Mr Hancock recommended that AA be referred to psychological services when ELR and ELS were in a better position to attend regular appointments.

62. AA was referred to Ms Drysdale. ELR agreed that the therapeutic treatment with Ms Drysdale involved certain goals and aims to support them caring for a child with a trauma background and support family visits for the children with their mother. ELR agreed that the primary reason Ms Drysdale was consulted was to treat AA and not herself and her husband.

63. ELR said the use of the words ‘dirty dog’ by her husband towards AA were not appropriate. The cross-examination explored whether the use of these words by ELS was out of frustration. ELR said that she did not ask her husband about that.

64. ELR gave inconsistent evidence about requiring AA to wear a baby bib. Initially she said AA was required to use a bib when they went out and he was eating spaghetti. She then denied that a bib was used outside of the home but agreed that he wore a bib at home when eating spaghetti. When asked the following question “You chose to have him wear a bib, rather than a different strategy” ELR responded “It is what I grabbed at the time, BB wore bibs and it was easy to stay on him”. ELR said that the practice only happened twice. ELR agreed on reflection that by making AA wear a bib it “probably” led to him thinking he was being treated like a child. Indeed this is a finding that Ms Drysdale records in the respondent’s case notes.

65. ELR was cross-examined further in relation to matters discussed with Ms Drysdale. She denied both locking AA out of his room and removing toys for him play with. ELR said that AA did not have toys in his room and he was provided colouring books. ELR could not recall if she told Ms Drysdale about providing him colouring books. We find ELR’s evidence in this regard unclear as she has no memory as to what she may have told Ms Drysdale. We accept, as more reliable evidence, the record noted in the case note that the applicants removed toys from AA’s room and locked the downstairs toy room due to his behaviours of waking up early at 5.00 a.m. of a morning.

66. ELR accepts that she and her husband told Ms Drysdale that ELS was “a bully with her daughters” but said that “this is his weird sense of humour.” ELR was pressed as to what she meant by ‘weird’. She agreed with the proposition that ELS was asserting his ideas over their views without regard for their wishes and responded “He might at certain times. He has a weird sense of humour.” ELR denied that he only cared for his views and not the views of his children.

67. ELR agreed that she had smacked AA on his hand for burning his brother and BB for taking his nappy off with poo in it. She agreed that her justification to smack the children was out of frustration. ELR also agreed that her use of discipline in this regard was contrary to what she and her husband acknowledged which was inappropriate.

68. ELR agreed that at the beginning of the proposed care arrangement ELS “did not want the boys”. She denied that that attitude put the children at possible risk. ELR agreed that when she and ELS acted out of frustration that it takes a greater consequence with AA because of a trauma background.

ELS’ mental health

74. ELR said that AA’s behaviour was triggering his mental health and affected him. ELS said that AA reminded him of his mother, particularly when he gave a particular facial expression. ELR agreed that ELS was an unwilling participant when the foster placement was first discussed and he sometimes felt this way when things became difficult. ELR agreed that these circumstances arose due to a combination of the deterioration of ELS’ mental health and the escalation of AA’s challenging behaviours. ELR said that during this period ELS consumed more alcohol but denied that alcohol affected him.

75. ELR said in October 2019 she did not know about ELS’ suicidal thoughts and said alcohol did not affect him. The following question and answer took place:

‘Q   Does it cause you to reflect on this behaviour between 2018 to 2019, including alcohol, poor mental health and so on. You have basically said he had ups and downs and that affected your relationship and not the family. Now that you have read he was close to suicide, does that recent knowledge cause you to change your interpretation of his behaviour during this time.

A   No

Q   Now that you know this does it cause you to rethink how he was behaving towards you and the children. Do you think this affected how he was acting as a foster carer at the time.

A   No, I don’t think so.’

76. ELR agreed that between December 2019 to February 2020 AA was presenting as feeling unhappy and unloved. He was complaining about ELS smacking him and case workers observed him as being upset and anxious. ELR said that the only support that was offered to her and her husband was Mr Hancock, which support they rejected. Ms Drysdale provided ELR with a number of flyers and documents which she found difficult to comprehend due to her reading ability. ELR denied she received support from Ms Drysdale in developing strategies to deal with AA’s behaviour.

77. In May 2020, ELR agreed that the record of case workers of the respondent is correct and that she told AA “We might have to find a new house to live in…you will have to find a new home”. ELR agreed that she was having a difficult time in that period of her life particularly finding it challenging as ELS was in hospital and she was left to cope with the household and two young children. ELR agreed that saying this to AA was inappropriate and potentially damaging to him.

78. Despite ELR and ELS being aware of the attachment between the children, two days before their removal ELR said to the respondent’s case officer that she and her husband would be prepared to take BB and not AA due to his behaviours. She agreed that she was putting her interests before AA’s interests and that view was not focused on the best interests of AA.

Social media posts about the children

79. Some time of the cross-examination was spent about social media posts concerning the children. ELR agreed that photographs had been posted by her daughter in relation to a petition that she signed concerning the removal of the children. ELR was aware that the photographs had been posted but she said she did not believe that this was problematic or that their confidentiality may have been breached. We find her evidence in this regard demonstrates a lack of insight.

80. We find ELR overall an honest witness. It is evident to us that she, and her husband, truly cared for and showed love and affection for both of the children. However, despite a number of opportunities to develop her skills as a carer, and in particular managing challenging behaviours of children from a trauma background, ELR has demonstrated her ineffectiveness in doing so.

81. We accept the evidence reveals that AA demonstrated significant challenging behaviours. He is a child with a traumatic background and different events throughout his life exacerbate those behaviours. ELR agreed that AA’s behaviours regressed over time during his placement with them. We make a positive finding in this regard. We also find that ELR’s evidence reveals that AA was called a ‘dirty dog’, he was made to wear a bib, he was accused of being a ‘liar’ and that he was subjected to various disciplinary techniques by ELR (and ELS) which were not appropriate when managing a child with a traumatic background. We find ELR acquiesced to ELS’ demands for the management of AA in the same manner as they raised their own children. In doing so they failed to adequately recognise that AA and BB are children with traumatic backgrounds and required different management techniques to those they used with their own children. Despite ELR denying that ELS’ mental health affected how they managed AA’s behaviour, we find in the alternative.

82. We further find that despite an opportunity to access additional resources and support services as foster carers, such as the support from Mr Hancock, the applicants chose not to do so. In making this finding, we by no means say that the additional resources offered by the respondent were perfect. However, given the recommendations of Mr Hancock and the knowledge by both of the applicants that AA’s behaviour was deteriorating, they should have sourced additional assistance if they did not like Mr Hancock’s services.

83. Smacking children out of frustration, in our minds contravenes the code of conduct.

Evidence of ELS

84. ELS relies upon an Affidavit affirmed on 15 December 2020. ELS deposes that the overwhelming majority of the time that the children lived in his home with his wife involved circumstances where they were surrounded by love and care.

85. ELS admits that he had difficulties coping with two children during the time in which he had the care of them, particularly when AA’s behaviours escalated. ELS says that the first time the children came into his care he had reservations about the care arrangements as at the time it “seemed to be an enormous commitment however when ELR explained what they had been through and how they needed a loving family of course I agreed.”

86. It is uncontroversial that ELS has experienced depression from time to time, starting when he was about 30 years of age when he and his wife lost a stillborn son. His mental health was exacerbated at times due to his work, financial difficulties and the care of the two children.

87. ELS in the years leading up to the removal of the children started having seizures. ELS also had other medical related injuries which led to him being hospitalised in April 2020 for two months and requiring additional rehabilitation. ELS deposes that his own health placed stress on him and his family.

88. At times ELS found AA’s behaviour frustrating and admits that he did not react as he should have. ELS now recognises that he required further information and training to understand the particular needs of the children and a requirement to discipline them differently to the way in which he disciplined his own three daughters.

84. ELS admits that he called AA a “dirty dog”. He said that he used this as a joke term, similar to terms he used with his ‘mates’ and it was in the context where AA went through a period where he was not wiping his bottom. ELS expresses sadness and remorse at the hurt experienced by AA from the use of these terms.

85. ELS admits that he smacked AA on a few occasions on the hand out of frustration.

86. Overall, ELS says that the allegations made against him were in the context of an extremely stressful situation and one which any family would find difficult. He contends that instead of being supported by the respondent, he and his wife were criticised and undermined by the respondent’s staff.

87. In cross-examination ELS disagreed with the proposition that even if the respondent did not provide sufficient training and support that he and ELR were not equipped to be carers at the time they cared for the children. He said he believed it was the respondent’s responsibility to give more training with how to manage foster children.

88. ELS agreed that if the assumption is correct he and ELR were not provided with sufficient supports, that he required more training to provide necessary and appropriate care to the children.

89. ELS agreed that he required more training on how to manage AA’s behaviour and how to deal with the relationship with the children and their birth mother. Despite this evidence, ELS disagreed that he and his wife were struggling with caring for the children. Further in the cross-examination he agreed that without the necessary training being provided this resulted in the inability to manage the children. ELS said that in his view the respondent let he and his wife down in not being able to manage AA’s behaviours which included a history of major trauma.

90. We accept ELS as an honest and reliable witness. What is evidently clear from ELS’ evidence in our minds is that without additional training both he and ELR are not equipped to adequately manage and care for the two children with significant behavioural issues. We find that ELS’s evidence is corroborated by the evidence of ELR, particularly, when considering the challenges the applicants experienced during ELS’s physical and mental health decline. We have placed significant weight on this evidence.

Evidence of the applicants’ daughter ELT

96. ELT swore an Affidavit (undated but filed on 23 December 2020). ELT deposes that the home environment where AA lived prior to being placed into care as being “completely feral”. ELT sets out the background and history where the children were removed from their birth mother and placed into foster care. She deposes the detrimental effects on her parents and family resulting from the removal of the children from her parents’ care. ELT was not called for cross-examination. We accept her as an honest and reliable witness.

Evidence of the children’s aunt

97. The children’s maternal aunt gave uncontested evidence in an undated Affidavit filed 23 December 2020. In similar circumstances to the evidence of ELT, the children’s aunt sets out a background and history concerning the removal of the children from their birth mother. The children’s aunt sets out the effects on ELR and ELS and their family concerning the removal of the children from their care. The children’s aunt deposes the evident lovingly care that both ELS and ELR provided to the children.

98. The children’s aunt was not cross-examined. We accept her evidence. She is an honest and reliable witness.

Evidence of Martha Fasoulas

99. Ms Fasoulas at the time of the hearing was employed as Acting Manager Case Work for the respondent. Ms Fasoulas was the Manager Case Work for the children from 12 March 2020 to 16 March 2020. In preparing her evidence she has accessed the respondent’s files and computer database records concerning the children.

100. In her Affidavit affirmed 22 December 2020 Ms Fasoulas sets out the training and services provided to the applicants during the period in which they cared for the two children. That included the following:

101. 10 May 2018, initial carer training.

102. 26 June 2018, psychological assessment, which included the applicants may benefit from courses run by Family and Community Services supporting children remaining in contact with their birth family and understanding their needs.

103. 6 July 2018, referral to a psychologist, consultation and referral for trauma informed support.

104. 18 July 2018, consultations with Mr Hancock.

105. 6 August 2018, discussions with case worker and the applicants about the Code of Conduct for authorised carers and the importance of not using physical discipline in managing children with behavioural difficulties.

106. 23 November 2018, case worker provided the family with support and examples of how they can manage AA in positive conversations about visits with his mother and the distress posting pictures on social media of the children online without the respondent’s consent which caused significance distress to the birth parents.

107. 9 November 2018, a report prepared by Mr Hancock.

108. 16 January 2019, Mr Hancock recommending further intervention and consultation with a psychologist.

109. November 2019, consultation with Dr Philip Goodhew, Paediatrician, particularly dealing with AA’s behaviour.

110. July 2019, referral to Psychologist Belinda Drysdale for treatment goals, including psycho education for carers to support AA.

111. 17 April 2020, case work support with Ms Drysdale and the applicants and AA.

112. During the period of care case workers and departmental records demonstrate regular home visits and phone calls made to the applicants to provide support and recommendations to address AA’s challenging behaviours.

113. It is not in contest that following the removal of the children from the care of the applicants an online petition was developed by one of the applicants’ daughters. Further social media posts, including photos of the children and links to the petition were sighted on the Facebook profiles of the applicants’ daughter and the children’s aunt. The respondent alleges breaches of s105 of the Care Act and on 28 May 2020 requests were made of the applicants for the posts to be removed immediately. Ms Fasoulas deposes that ELR confirmed she was aware of the posts and declined the request and hung up the phone.

114. Ms Fasoulas was cross-examined and agreed that during the investigations to determine the care arrangements for the children with the applicants that the respondent was aware of ELS’ mental illness and that he was being managed on antidepressants. Ms Fasoulas agreed that a common issue raised by foster carers is the difficulty that arises for children when they visit their birth parents.

115. Ms Fasoulas said there was no evidence of specific courses that were provided to the applicants but a referral to the Department of Communities and Justice for support was made. That referral was to Mr Hancock. Ms Fasoulas said that Mr Hancock was to assist the applicants in trauma informed parenting, contact arrangements with their birth parents and managing challenging behaviours. Ms Fasoulas denied that there was any record in the case files which indicated ELR found the training and assistance with Mr Hancock unhelpful. After the services of Mr Hancock were declined, Ms Fasoulas said that case workers continued direct intervention with the applicants and a behaviour support plan was to be developed for AA.

116. Ms Fasoulas agreed with the proposition that ELS’ hospitalisation may have been a significant stressor at the time in which his mental health declined.

117. Ms Fasoulas agreed that there was no formal respite arrangement in place to support ELR or ELS but the applicants’ daughter, whilst not being an approved family member, was available to spend time with the children. Despite a robust cross-examination we accept Ms Fasoulas as an honest and reliable witness.

118. Ms Martha Fasoulas affirmed an Affidavit on 20 October 2020 and 24 December 2020. Ms Fasoulas sets out in her evidence the history concerning the removal of the two children from the day to day care, management and control by the applicants. The evidence of Ms Fasoulas provides the basis for the grounds for removal as set out in paragraph [101] above.

119. During the period in which the children were placed with the applicants between April 2018 to May 2020, the respondent received nine risk of serious harm reports (‘ROSH report’) to the Children’s Helpline concerning possible sexual abuse, risk of psychological harm due to the carer’s mental health, and concerns around supervision.

120. On 10 September 2019, a ROSH report that AA disclosed he had been touched inappropriately on his bottom by BB’s father when in the care of his biological mother. The report was not substantiated as sexual harm. We make no findings of any risk of sexual harm.

121. On 10 October 2019, the respondent received a ROSH report including allegations that ELS had experienced a decline in his mental health since the children had come into his care. The results of that decline included ELS becoming irritable with the children and him displaying a pattern of rejection and hostility towards AA. The report also included ELS drinking undetermined amounts of alcohol and including to take his own life by overdose. We accept this evidence which is corroborated in our minds by the evidence of both ELR and ELS.

122. On 22 October 2019, a ROSH report was received concerning allegations that ELR believed AA’s behaviours were due to her daughter having recently moved out of the home and his mother becoming pregnant again with another sibling. During this same period a case worker discussed with the applicants AA’s sexualised behaviours. We accept this evidence which was corroborated by ELR, at least in so far as the AA’s behaviours escalating after the birth of his brother.

123. On 23 October 2019, during an interview with DCJ case workers, AA described ELS as naughty when he yelled at him. AA also said that he did not like it when ELR yells at him and causes him upset. We accept that ELS and to a lesser extent ELR yelled at AA.

124. In reports on 28 October 2019 and 31 October 2019, further consideration was given to the significant mental health issues of ELS, depression and the effect it has on the children.

125. An assessment undertaken on 7 November 2019 concluded that there was a substantiated risk of psychological harm to the children in relation to ELS’ mental health.

126. Further assessments indicated AA’s behaviour declining and him reporting that he was being physically disciplined by the use of smacking, profound sadness and feeling constantly anxious and sad.

127. As late as 7 May 2020, a ROSH report detailing concerns that AA’s behaviour had changed ‘drastically’ in recent months, and that he was ‘wetting the bed, having nightmares and every night is constantly crying’ as a direct result of the applicants’ behaviour. The report also indicated that ELS had called him a dog and a liar. The report made by AA included him being required to wear a bib and his toys being removed from him as punishment. We accept this evidence, which in the most part was corroborated by the applicant’s except the reason for toys being removed as punishment, which we can not make a positive finding about.

The current placement of the children

128. As at the date of hearing the evidence concerning the placement of the children was as follows. After the Reviewable Decision was made the daily care, control and management of the children was given to emergency carers. The respondent’s Case Worker, Ms Fasoulas, in an Affidavit sworn 20 October 2020 said that the children have “settled into their new school and day care respectively. Feedback received from staff indicate that [AA] is making very pleasing progress and is very settled. The school does not report [AA] presenting with the challenging behaviours which were displayed in his previous school setting.”

129. Ms Fasoulas deposes that as of 20 October 2020, the current placement was assessed as meeting all of the physical, emotional, social and psychological needs of the children.

130. In additional evidence in chief on the first day of the hearing, Ms Fasoulas gave evidence that AA had informed her that “he wants to live with them forever.” referring to the new care placement.

131. It is acknowledged that since the last day of hearing when the evidence closed, this position may have changed. However, for the reasons below, the placement itself does not materially affect our determination.

The Reportable Conduct Finding

132. The respondent’s RCU made specific findings concerning ELR. Each of those three allegations concerning, two allegations of hitting AA and one of smacking BB, the findings were found to be “not reportable conduct”. We have taken these findings into consideration. We do note that despite the findings that ELR did hit and smack both AA and BB respectively, the events were not reportable conduct. The report reminded ELR that physical discipline of children is not permitted under the code of conduct.

Our Consideration

133. Since 2018 there had been a steady decline in ELS’ mental health. We accept that the stressors in ELS’ life which led to that decline included the difficult behaviours of AA, caring for two young children, financial concerns and employment difficulties. ELS also had medical conditions which included neurological related seizures, he was consuming alcohol to cope and in our view we find that these combined stressors led to a poor attachment to AA. ELS admitted that he called AA a ‘dirty dog’. Whilst we have considered the circumstances in which ELS said he made these comments, nevertheless, to use such language towards a child with a traumatic background and exhibiting the challenging behaviours as AA did, was inappropriate and demonstrative of a lack of insight.

134. The respondent took action to remove the children from the care of the applicants on 28 May 2020. Leading up to that decision there had been a number of ROSH reports in relation to the children and particularly the escalation in AA’s behaviour.

135. We have taken into consideration that ELS did not initially wish to enter into a care arrangement for the children. ELS wanted to relinquish care of the children and particularly the care of AA. This in our view predisposed the children to a potential risk given ELS’ attitude.

136. The evidence reveals that ELS had a poor relationship with the birth mother and over time a poor attachment to AA. This continued throughout the placement.

137. In November 2019 ELR agreed that she had ‘hit a wall’. This resulted as a consequence of ELS’ poor health, her daughter’s poor health and other factors. Despite being offered assistance to arrange respite, ELR declined.

138. During a home visit on 7 May 2020 the accumulated stressors of ELS’ hospitalisation and deteriorating mental health, together with the challenging behaviours of AA led ELR to propose that the children be found another placement. ELR accepted that she said to the case worker “I don’t want to do this anymore”. The case officer queried ELR if caring for the two boys is something that she and ELS felt they could do ongoing. ELR said that they could care for BB however they were unsure about caring for AA.

139. On 11 May 2020, Psychologist, Ms Erin Stuckey, recommended the applicants and the children be referred for a comprehensive psychological assessment. No review took place.

140. Following a paediatric review on 23 May 2020, Dr Goodhew observed that AA’s behaviour had deteriorated from February to May 2020.

141. On 20 May 2020, ELR confirmed that she had informed the children they would have to find a new home. ELR told the respondent that she was unable to cope on her own due to ELS’ hospital admission.

142. We accept that the placement of the children into the care of the applicants placed significant stress upon their marriage. The stress led to an ultimatum where ELR said to ELS that he had to either choose continuing caring for the children or ELR would leave him and care for the children alone.

143. We find the applicants have both engaged in punishment of the children, mostly smacking which they admit occurred out of frustration. As we have found above, this amounts to a breach of the code of conduct. The applicants also admit, and we find, that they inappropriately used strategies to manage the behaviours of the children in similar circumstances to how they managed and disciplined their own children. What became evident during the cross-examination is that the management of the children in the same way that the applicants managed their own children was not appropriate due to the children’s traumatic background. We find the Applicants were, for whatever reason, unable to implement appropriate behaviour and management strategies for the children given their background.

144. The applicants assert they were not given any formal training or resources to cope with the requirements of foster carers for children with traumatic backgrounds.

145. We find that either due to a lack of willingness, or an inability to read literature provided by health care professionals to educate the applicants about a trauma informed approach to care, the applicants did not develop those skills. The applicants were provided different resources. We find the applicants lacked the necessary skills to ensure appropriate parenting of children with a traumatic background.

146. We have placed significant weight on the cross-examination of ELS and find that wherever the responsibility lies for the applicants being ill-equipped to care for the children, they remain unsuitable by reason of their deficiencies as foster carers for children with challenging behaviours. ELS was clear in his evidence in this regard.

147. The evidence reveals that the applicants would have benefited from engaging in courses run by Family and Community Services regarding supporting children in contact with their birth family and increasing an understanding as to the importance of contact with the birth family in regard to positive identity formation.

148. We find the applicants were informed of the importance of the children having positive relationships with their birth family. Indeed, the respondent’s psychologist recommended that the applicants be provided with information about courses to reinforce the importance of birth family contact. Despite referrals to psychologists being made for trauma informed carer support, we find that the applicants did not follow through with that assistance, or failed to participate in it.

149. In particular, Mr Hancock was charged with assisting the applicants in educating them around managing AA’s behaviours and strategies to deal with a trauma informed approach to foster care. The applicants decided that Mr Hancock was not suitable and discontinued their participation with the intervention. Despite Mr Hancock recommending that the applicants undergo further intervention, the only additional assistance they sought was through Ms Drysdale. We find that Ms Drysdale was essentially charged with dealing with AA’s behaviours and not specifically aimed at improving the applicants’ ability to manage as foster carers.

150. We also find that both ELR and ELS lack particular insight into how their response to sever the attachment of the two children and find another placement would have on the deterioration of the behaviour of AA, particularly where ELR revealed this to him.

Our Conclusion

151. Despite having made available to them the services of Mr Hancock, and other resources, the applicants were unreceptive to psychological intervention to assist them with managing AA’s behaviours and the children generally. Ms Drysdale identified particular deficiencies with their management of AA’s behaviours. It is uncontroversial that during the term of the placement AA had regressed. Ms Drysdale had particular concerns that AA was receiving negative treatment at home by being called a ‘dog’, being made to wear a bib, being accused of being a liar and subjected to bullying treatment by ELS.

151. Ms Drysdale concluded that the applicants had overreacted to behaviours of AA and demonstrated an unwillingness to practice techniques suggested by her to better manage his behaviours. ELS’ mental health had a significant effect on how the family and the applicants managed AA’s behaviour and the children generally.

152. Ms Drysdale found that ELS was a reluctant carer and that corporal punishment continued to be a behaviour management technique.

153. We find that the observations of Ms Drysdale generally consistent with all of the evidence set out above. We are left in no doubt that ELR and ELS express genuine love and affection for the care and wellbeing of the children. However, due to their lack of insight and the paucity of training, or lack of participating in such training, to develop strategies to understand and manage children with traumatic backgrounds, the placement failed.

154. We have considered the break in the bond between the applicants and the children that would likely have resulted from their removal. We are satisfied that the potential risk to their phycological harm outweighs the effects resulting from a change in placement. We reject the applicants’ contention that respondent took into account irrelevant considerations being minor issues that could have been resolved through training and support which should have been provided to the applicants by the respondent. For the reasons set out above, the difficulties the applicants had can not be described as ‘minor’. Further, the applicants when offered assistance, did not engage, at least concerning Mr Hancock and his ongoing recommendations. This is a factor we have given considerable weight.

155. Overall, we find there is an "unacceptable risk" of harm to the children when considering the accumulation of all of the factors, as set out above.

156. In considering the objects of the Care Act, the children should not be returned to their care at this time.

157. We find that the correct and preferable decision is to affirm the Reviewable Decision.

Order

1. The decision of the Respondent to remove the children from the care of the applicants made on 28 May 2020 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: 05 May 2022