FJD v The Secretary, Department of Family and Community Services

Case •

[2023] NSWCATAD 39

•

16 February 2023

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: FJD v The Secretary, Department of Family and Community Services [2023] NSWCATAD 39
Hearing dates: 30 November 2022, 1 December 2022 and 16 December 2022.
Date of orders: 16 February 2023
Decision date: 16 February 2023
Jurisdiction:Administrative and Equal Opportunity Division
Before: T Simon, Principal Member
L Porter, General Member
Decision:

(1)   The decisions of the respondent to remove the children from the daily care and control of the applicants and deauthorise them as carers is affirmed.

(2) Pursuant to subs 32(2) of the Community Services (Complaints, Reviews and Monitoring) Act 1993, the Tribunal recommends the respondent facilitates family therapy to help restore the relationship between the applicants, the children and the current carers.

Catchwords:

ADMINSTRATIVE REVIEW - of decision to remove from an authorised carer the responsibility for the daily care and control of a child - whether the decision is the correct and preferred decision at the time of review – no internal review – no written notice of the decision – extension of time.

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

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

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

Category:Principal judgment
Parties: FJD (Applicant)
FJA (Applicant)
The Secretary, Department of Family and Community Services (Respondent)
Representation: Solicitors:
R Chau (Respondent)
M Levy (Separate representative for the children)
File Number(s): 2022/89362
Publication restriction: Pursuant to s 65 of the Civil and Administrative Tribunal Act (2013), prohibiting the publication or broadcast of the name of the applicant, any person who appears as a witness and any child referred to in these proceedings.

REASONS FOR DECISION

  1. This is an application for review of decisions of the respondent to remove five siblings from the daily care and control care of the applicants and de-authorise the applicants as carers.

  2. Having considered the material before us and the evidence and submissions of the parties, we have decided to affirm both the decisions of the respondent. We have also made a recommendation for family therapy to restore the relationship of the applicants with the children and current carers.

  3. Non-publication orders were made in the proceedings on 12 August 2022. To protect the anonymity of the children, we have also referred to the parties and various witnesses by reference to their relationships to each other.

Background

  1. These proceedings relate to five siblings aged 17, 12, 9, 8 and 5 years old (the children). The children have two other siblings, aged 19 (older sibling 1) and 16 years old (older sibling 2).

  2. In December 2017, due to concerns around their birth parents' drug use and because they were being exposed to domestic violence and neglect, the two older siblings were placed in a family arrangement with FJD, who is the children’s maternal grandmother, and FJA, who is FJD’s husband.

  3. The Minister, presently the Minister for Families and Communities, Disability Services, has parental responsibility for the children, including the older siblings until they each attain the age of 18.

  4. The applicants had care and daily control of the children and older siblings and were fully authorised carers under the Care Act.

  5. On 2 June 2021, FJD, was informed by the Department of Family and Community Services Department of Communities and Justice (DCJ), who we infer have delegated authority for the Minister and are the case managers, that the children were being removed from her care and being placed to live with FJD’s sister and her sister’s friend (the current carers) in Queensland.

  6. The applicants now also reside in Queensland and are nearby to the current carers.

  7. On 22 November 2021, the applicants were advised, in writing, that they had been de-authorised as carers because of "significant emotional and psychological harm experienced by the children which is likely to impact their future welfare and wellbeing".

  8. On 29 March 2022, the applicants made the application in these proceedings seeking review of the de-authorisation decision. As noted in the NCAT orders made on 28 April 2022, the applicants later amended the application to seek review of the decision to remove the children from their daily care and control.

  9. On 7 September 2022, NCAT made an order appointing a separate representative for the children.

  10. The applicants submitted various documents to NCAT. The separate representative helpfully compiled those documents into a paginated bundle.

  11. DCJ rely on two affidavits of Cristina Dalton, affirmed 10 May 2022 and 6 October 2022. Ms Dalton was a Manager Casework with DCJ. Further, DCJ’s documents include case plans and assessments.

  12. The separate representative also relied upon a bundle of documents which included the views of four of the children, home visit records, medical records and school records.

  13. The following parties and witnesses were cross examined at the hearing:

  • The applicants

  • Cristina Dalton, a case worker with DCJ

  • FJA’s brother

  • Vicki Muller, the children’s current caseworker,

  1. We have considered the exhibits, oral evidence and submissions made by the parties. We were mindful that the applicants were self-represented and for that reason on 1 December 2022, we adjourned the hearing and allowed time for the respondents to provide their submissions to the applicants in writing and then held a further hearing to allow the applicants an opportunity to make their submissions orally.

The Administratively Reviewable Decisions and NCAT’s Jurisdiction

  1. Section 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) states that the Administrative Decisions Review Act 1997 (NSW) (ADR Act) provides for the circumstances in which the New South Wales Civil and Administrative Tribunal (NCAT), has administrative review jurisdiction over a decision of an administrator. Pursuant to s 9(1) of the ADR Act, NCAT has administrative review jurisdiction over a decision of an administrator if enabling legislation provides that applications may be made to NCAT for administrative review under the ADR Act.

  2. Section 28(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 provides that a person may apply to NCAT for administrative review under the ADR 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) (Care Act).

  3. 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).

  4. Relevantly, s245(1)(a1) of the Care Act provides that a "decision of the relevant decision-maker to cancel a person's authorisation as an authorised carer..." is also an administratively reviewable decision.

  5. Accordingly, both decisions the subject of this application, are administratively reviewable decisions.

Failure of DCJ to provide Written Notice of the Decisions and Extension of Time.

  1. Ms Dalton states in her affidavit of 10 May 2022, that according to home visit records, on 2 June 2021 two casework managers visited the applicants in Queensland and advised FJD that they were going to be changing the children’s placement to the care of FJD’s sister. The casework managers informed the applicants that the decision was based on DCJ’s assessment that FJD was causing emotional and psychological harm to the children and that FJD was not allowing the kids to maintain their relationship with each other. Ms Dalton goes on to state:

  1. On 15 October 2021, DCJ received a complaint from [FDJ] stating that she is unhappy with the change of placement for the children. [FDJ] alleges that the children were “taken unlawfully’’, that the issues and allegations are false. Complainant stated that she was not provided with any paperwork detailing the change of placement and was not given the opportunity to respond to the allegations.

  2. On 21 October 2021 I spoke to [FDJ], regarding her complaint. I acknowledged that [FDJ] has been the carer for the [..] children for many years, [FDJ] stated that she was never, provided the reasons for the children to be moved from her care to her sisters. I stated that I would see what I could find out and get back to her.

  3. A subsequent phone call occurred with [FDJ] on 4 November 2021 stating that I was still finding some information which I would get back to her with.

14 On 22 November 2021 I spoke with [FDJ] and I was able to inform her of the following according to DCJ records:

a. On 2 June 2021 Caseworkers Hatice Ozturker and Manager Casework Kelly Callaghan conducted a home visit to the children’s placement in QLD and spoke with [FDJ]. Ms Callaghan explaining that following DCJ’s previous visit, speaking with [older sibling 1] and [child 1] and completing an Alternate Assessment regarding risk of harm reports for the children whilst in [the applicants’] care; DCJ we were going to be changing the children’s placement to be with the children’s aunt, [sister]. It was further explained the decision was based on DCJ’s assessment that she is causing emotional and psychological harm to the children, including that she was not allowing the children to maintain their relationship with each other since [older sibling 2] left their care.

b. The casework team explained to [FJA] that DCJ had concerns about the way [FDJ] was treating [older sibling 2] and that [FDJ] was causing emotional harm to the children. DCJ staff provided examples of this to [the applicants] that included: [FDJ] previously making [older sibling 2] do most of the chores, not providing [older sibling 2] with new shoes or clothes, since [older sibling 2] had left it was now [child 2] who had to do the chores, talking about [older sibling 2] in a very negative way that the children feel like they can’t have a relationship with her and; not allowing the kids to see [older sibling 2].

c.   DCJ spoke about the process of asking for a review and [FDJ] stated that she said wanted one now. MCW Ms Callaghan suggested that she work on some of the recommendations DCJ were making such as seeing a counsellor or psychologist about her emotions toward [older sibling 2]. Also to participate in some trauma informed parenting sessions.

d.   I advised [FDJ] that she would receive a letter from DCJ regarding the decision to de-authorise her as a carer and that she was entitled to have the decision reviewed. I stated that I was going to put this letter in the express post today. [FDJ] disagreed with the above reasons the children were moved from her care and stated that [older sibling 2] and her are now talking and are fine with each other. She also mentioned she wanted the decision reviewed.

15 On 22 November 2021, a letter was sent to [FDJ] advising her that she was being de-authorised as a carer. …

16 On 23 November 2021 I contacted an agency Kids Act to complete a review of the decision to move the children from [the applicants’] care.

17 On 22 December 2021 I received the outcome and report from the internal review. The report states the following:

a.   While the author was not provided with detailed records relating to DCJ’s decision to change the children’s placement, the information reviewed raises significant concerns about [the applicants’] suitability to provide kinship care to their grandchildren. Information provided strongly suggests that [older sibling 2] was not provided with an appropriate level of care, presenting as being scapegoated by FDJ. The author is concerned that [the applicants] present as having limited insight into the impact that their behaviour had on [older sibling 2] and the other children.

b.   Given the children have expressed they feel safe and happy in their current placement, and they are encouraged to maintain their sibling relationships, I support DCJ’s decision to change the children’s placement from [the applicant’s] care to that of [the current carers]. As such, I support DCJ’s decision to de-authorise [the applicants] as specific carers for [the children].

  1. During cross-examination, Ms Dalton gave evidence that the de-authorisation should have occurred at the time the children’s placement was changed. On her return from maternity leave, Ms Dalton identified that the applicants had not been advised they were de-authorised and sent them a letter in relation to the de-authorisation in November 2021.

  2. Ms Dalton gave evidence that the decision to de-authorise was made following a review of Departmental records and following discussions with her manager.

  3. Ms Dalton has included in her affidavit, a notice of outcome of internal review, addressed to FJD, which advised that both FJD and FJA had been de-authorised as carers for the children. The letter itself is undated. Ms Dalton states in her affidavit that the letter was sent to FJD on 22 December 2021.

  4. FJD denies having received the letter around that time and states that she phoned the respondent and followed up on the internal review, including on 5 January 2022 when she was advised the office did not reopen until the following week. Ms Dalton acknowledges that she received a telephone call from on FJD on 1 March 2022, in which FJD stated that she had not received the outcome of the internal written notice and Ms Dalton states that she subsequently sent an email to FJD with the outcome of the internal review.

  5. We accept the evidence of FJD, that although the undated letter advising of the outcome of the internal review may have been sent by DCJ by mail, that FJD never received the notice of internal review until it was emailed to her by Ms Dalton on 1 March 2022.

  6. The notice of the outcome of internal review decision includes information about making applications for review to NCAT within 28 days. We note that the application for administrative review was made by the applicants on 29 March 2022. In the application form it is stated:

Christina sent me last letter and said it was sent to me in January. The letter I received is not dated but I received it as a email on 1 March 2022.

  1. We accept that FJD did not receive written notice of the outcome of the internal review regarding the de authorisation decision, until 1 March 2022, when it was sent to FJD by email by Ms Dalton. That is consistent with the fact that FJD continued to ask for the outcome of the internal review after December 2021 and that FJD lodged an application 28 days after when she said she received notification by email on 1 March 2022.

  2. DCJ do not dispute that written notice of the decision to remove the children from the applicants’ daily care and control was not provided when they advised the applicant that they would be removing the children from their daily care and control on 2 June 2021. We note that that the notice of 22 November 2021, only advised the applicants that they had been de-authorised as carers and of their internal review rights, but not of the decision to remove the children from the applicants’ daily care and control. In fact, it does not appear the decision to remove the children from the daily care and control of the applicants, has ever been formally provided to the applicants in writing, only the decision to de-authorise them as carers.

  3. Rule 24 of the Civil and Administrative Tribunal Rules 2014 (NSW) relevantly provides the following:

…

(3) Unless the Tribunal grants an extension under section 41 of the Act, an application must be made—

(a) in the case where enabling legislation specifies the period within which the application is to be made—within the period specified, or

(b) in any other case—by the end of the default application period.

(4) The default application period for the purposes of subrule (3)(b) is—

(a) in the case where the applicant has duly applied for an internal review of the administratively reviewable decision under the Administrative Decisions Review Act 1997—the period of 28 days after the day on which the internal review is taken to have been finalised under section 53(9) of that Act or

…

(b) in any other case—the period of 28 days after—

(i) if the applicant has requested reasons under section 49 of the Administrative Decisions Review Act 1997 for the administratively reviewable decision—the day on which the applicant was either provided with a statement of reasons under section 49 of that Act or notified under section 50 of that Act of a refusal to provide reasons, or

(ii) if the applicant has not requested reasons under section 49 of that Act—the day on which the applicant was notified of the making of the administratively reviewable decision.

  1. In relation to the deauthorisation decision, s 53(9) (a) of the ADR Act relevantly provides that an internal review is taken to be finalised when applicant is notified of the outcome of the review. The applicants made the review application to NCAT, 28 days after they were notified of the outcome of the internal review, when Ms Dalton sent the email to FJD on 1 March 2022. In that regard the application relating to review of the de-authorisation decision was made within 28 days and is within time.

  2. The applicants will require an extension of time in relation to the decision to remove the children from their daily care and control.

  3. Section 48 of the ADR Act relevantly provides:

(1) An administrator who makes an administratively reviewable decision must take such steps as are reasonable in the circumstances to give any interested person notice, in writing, of the following:

(a) the decision, and

(b) the right of the person to have the decision reviewed.

…

(3) A contravention of this section does not affect the validity of any decision.

  1. The obligation imposed on the administrator by s 48 of the ADR Act allows in circumstances such as these, for the applicants to be properly on notice of the decision that is being made and more importantly of their review rights in relation to the making of the decision.

  2. Section 49 of the ADR Act places an obligation on an administrator who makes an administratively reviewable decision, to provide reasons if an interested party makes a written request. Section 53 of the ADR Act allows an interested person to make a request for internal review. A request for reasons allows for an explanation for an existing decision and an application for an internal review seeks the review of that existing decision, with the possibility that a fresh and different decision will be made.

  3. Section 3 (a) sets out that one of the objects of the ADR Act is:

(a) to provide a preliminary process for the internal review of administratively reviewable decisions before the administrative review of such decisions by the Tribunal under this Act,

  1. That objective is consistent with ensuring that agencies making decisions as important as these, about welfare of children, properly explain those decisions and investigate and review the decision. The providing of reasons for decision and internal review process provides an opportunity for an agency to examine and assess all the relevant information and explain the decision and a mechanism to test whether the decision is the correct and preferrable one.

  2. We note that much of the information relied on in relation to the de-authorisation of the applicants as carers, was obtained from the children and others after the children were removed from the applicants’ care. Many of the allegations made against the applicants in relation to the de-authorisation were not matters which the respondent relied on in removing the children from placement. It is imperative that decisions about the removal of children are investigated and documented at the time the decision is made. In these circumstances, as will be discussed in further detail below, the notes purported interviews that allegedly occurred with two of the children have not been produced.

  1. Further, by investigating, gathering information and providing a written decision or reasons after the decision has been made, an agency leaves itself open to the danger that they are gathering information to support a decision they have already made and implemented, rather than properly investigating and considering the correct and preferable decision at the time.

  2. Further, a failure to provide written notice, may deprive those affected by the decision, to be put on notice of their rights to have a decision reviewed.

  3. These types of decisions involve children in care and the relevant legislation is governed by welfare principles. Section 8 of the Care Act sets out the objects of the Care Act as:

(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.

  1. In those circumstances it is wholly inappropriate, that the respondent, who is dealing with matters where the safety, welfare and well-being of children are part of the objects of the Care Act, should circumvent the process and not give notice of the decision in writing together with notice of the applicants’ rights to have the decision reviewed, as is part of the respondent’s obligation under s 48 of the ADR Act.

  2. Further, as the circumstances of this case will demonstrate, a failure to comply with the obligation to provide a decision in writing, and advise the applicants of their review rights, may have consequences for what decisions can be made by NCAT in the long term. That is because, the longer the children are away from an applicant, the more disruptive it will be for the children to return to the applicant, because the children are likely to have begun the process of adjusting to that placement and to remove them again would create at least a degree of confusion and anxiety.

  3. For those reasons, pursuant to s 41 of the NCAT Act, we extend the time for the making of the application for review of the decision to remove the children from the care and daily control of the applicants. That is because it is the respondent who has failed to comply with their important obligation to advise the applicants of the decision in writing and of their review rights.

Relevant Legislative Scheme

  1. In determining the applications for administrative review, NCAT is to decide the correct and preferable decision, having regard to the material then before it, including any relevant factual material and any applicable law (s 63(1) of the ADR Act).

  2. Pursuant to s 63(3), in determining the application, NCAT may decide:

  1. to affirm the administratively reviewable decision, or

  2. to vary the administratively reviewable decision, or

  3. to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

  4. to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

  1. Sections 8, 9 and 10 of the Care Act set out objects and principles, which give guidance and direction in the administration of the Care Act.

  2. As set out above, our role is to review the decisions of the respondent, having regard to all the material before us and the applicable objects and principles as set out in sections 8, 9 and 10 of the Care Act. In determining the correct and preferable decision in this case, we have had regard to the alleged risks posed by the applicants as well as considering the children’s interests and welfare, their present circumstances and their ongoing needs.

Risks posed by the applicants

  1. According to the affidavit of Ms Dalton, the removal of the children from the applicants’ care was because of the findings of an Alternate Assessment conducted by DCJ caseworker, Hatice Ozturker. The Alternate Assessment focused on the applicants' treatment of older sibling 2. Older sibling 2 has now been placed elsewhere and the applicants are not seeking that she be returned to their daily care and control.

  2. The Alternate Assessment found that:

  • Older sibling 2 was unsafe in the applicants' care due to concerns she was made responsible for the care of her younger siblings, including making their lunches and dinners, getting them ready for bed and doing all their washing.

  • The applicants were not supporting a relationship between the siblings and older sibling 2 following older sibling 2’s departure from the placement. It was further assessed that there was a high risk of concern about the way in which the applicants would "respond to the children's behaviours in the future as they have struggled to manage concerns and make appropriate choices in the past".

  1. After the children’s removal from the applicants’ care, DCJ alleged a series of other allegations against the applicants including that they drank alcohol and argued frequently and would swear and scream at each other and the children. It was alleged that the applicants hit the children and that since older sibling 2 had left the house, another of the female children was being made responsible for the care of her siblings and multiple other household tasks.

  2. During a meeting held on 7 July 2022, FJD was informed that allegations that she was causing psychological harm to the children and using excessive discipline against two of the children had been substantiated. The applicants were advised that the children do not currently want to have any family time with the applicants. On 2 August 2022 the applicants were also sent an email advising them to stop contacting one of the children’s childcare centres.

Older Sibling 2

  1. DCJ received a risk of harm report on 20 October 2020, in which the caller reported that older siblings 2’s placement with the applicants was breaking down and that FJD had slapped older sibling 2’s face. FJD subsequently admitted to slapping older sibling 2 on the face.

  2. One of the records to which Ms Dalton had regard to in de-authorising the applicants as carers was the Alternate Assessment conducted in February and completed in June 2021. The Alternate Assessment report came about because of a risk of harm report in relation to older sibling 2, received on 4 February 2021. The Alternate Assessment focused on the applicants’ treatment of older sibling 2, including the level of responsibility older sibling 2 was required to take on within the household and the way FJA had shared personal images of her with others. It was also determined that older sibling 2 was denied access to electronic devices.

  3. At the hearing FJD admitted to slapping older sibling 2 on the face. She stated that it was after older sibling 2 swore at her repeatedly. While FJD conceded that children should not be hit, she stated that as her grandmother, it was unacceptable in her culture that older sibling 2 should speak to her like that. Older sibling 2 swore at FJD four times and FJD was not expecting it because she did not swear at the children. She was taken by surprise and felt provoked.

  4. In cross-examination FJD also stated that older sibling 2 was having difficulties as a teenager. Older sibling 2 had been inappropriate on social media and the school had contacted FJD. There had been inappropriate photos and videos on the phone and for that reason devices had been removed from older sibling 2. There had also been problems around older sibling 2 being bullied at school. In relation to the removal of electronic devices, we are not satisfied that the removing of the devices from older sibling 2 was inappropriate, given that inappropriate photos and videos had been found on the phone.

  5. Following the internal review request made by FJD, an independent review was conducted by an independent agency, KidsACT. That assessment was completed on 22 December 2021 and the independent reviewer, Chris Wynd states:

While the author was not provided with detailed records relating to DCJ’s decision to change the children’s placement, the information reviewed raises significant concerns about [the applicants’] suitability to provide kinship care to their grandchildren. Information provided strongly suggests that [older sibling 2] was not provided with an appropriate level of care, presenting as being scapegoated by [FJD]. The author is concerned that [the applicants] present as having limited insight into the impact that their behaviour had on [older sibling 2] and the other children.

  1. It is inappropriate that FJD slapped older sibling 2 in the face, even if it was because FJD felt provoked. While we accept FJD’s evidence that this was an isolated incident, the incident demonstrates that FJD lacks the strategies necessary to deal with a teenager who may challenge her at times. We acknowledge that the applicants are not seeking that older sibling 2 return to their care and daily control, however such strategies will also be important in relation to the dealing with the other children as they grow into teenagers.

  2. In cross-examination FJD also described what she saw as the role of older sibling 2. She stated that all children were allocated chores. She stated that the family would get up in the morning and make their beds and get ready for school. Older sibling 2 would attend to her little brother. Another child would supervise one of the other younger children. At night, the two older girls including older sibling 2 and FJD would prepare school lunches for the following day. The younger children would organise snacks and fruit. The older children, including older sibling 2 organised breakfast and after school the children would help each other and bring in the washing. Older sibling 2 was responsible for vacuuming the kitchen and around the lounge at night. At bath time older sibling 2 supervised her little brother and the other older girl supervised two of the other children who were old enough to dress themselves.

  3. We find on the FJD’s evidence that there was a significant responsibility placed on older sibling 2 for caring for her siblings and in particular, the care and supervision of her youngest brother. We accept that larger families require a sharing of the household duties. As the oldest female, older sibling 2 appears to have carried a larger burden of the household duties in the household.

  4. On 1 April 2021, DCJ received a further Risk of Harm Report in which the caller noted that FJD had advised her that older sibling 2 had been instigating sexual abuse between the siblings, directing one sibling to get on top of two other siblings and penetrate them whilst filming it. A further report was received on 8 April 2021 providing further detail around the alleged sexual abuse.

  5. The NSW Police Child Abuse and Sex Crimes Squad led an investigation into the allegations and, on 10 August 2021, DCJ were informed that the concerns identified were unsubstantiated as there were no disclosures and no evidence found to imply that the allegations occurred as reported. DCJ conducted their own Alternate Assessment and deemed that the children were safe in their current placement with the current carers who they were already with by that time. In the absence of any further evidence and based on the outcome of the investigation of the NSW Police Child Abuse and Sex Crimes, we cannot be satisfied that the allegations occurred as reported. Further, even if they did occur, we have no evidence before us to suggest that they had occurred because of the actions of the applicants.

  6. There were also allegations that FJA had inappropriately shared the images and photos that were found on older sibling 2’s phone. In cross-examination FJA states that he told older sibling 2 to get rid of the images on her phone and did not show the images to anyone else. FJD gave evidence that she provided the phone to one of the other children to download the images to a computer.

  7. Having considered the evidence we are not satisfied that FJA inappropriately shared images of older sibling 2 from the phone with others.

The applicants' use of physical discipline on the other children.

  1. It is submitted by DCJ that FJD and FJA had physically harmed the children and that the use of physical harm by FJD and FJA are in breach of the authorised carers’ code of conduct.

  2. Ms Dalton’s affidavit dated 6 October 2022, annexes a two-part safety assessment tool documenting interviews that were conducted by DCJ caseworkers Vicki Muller and Toli Stewart on 13 May 2022. The assessment was in relation to allegations that the applicants drank alcohol, swore and screamed in front of the children, were hit by the applicants and that an iPad belonging to one of the children was smashed with a hammer. The report refers to a previous report dated 5 May 2022, in relation to disclosures made by the children regarding their time with the applicants. It is noted in that report, that on various occasions the children disclose various incidents of physical discipline by FJD and FJA.

  3. Ms Muller did not provide a statement in these proceedings and was only cross examined regarding her role as the current caseworker and in relation to the reports which had been prepared.

  4. In cross examination, Ms Muller stated she had attended the children’s schools and taken notes and believed that the applicants had used excessive physical force on the children and caused psychological harm. In oral evidence, Ms Muller indicated that she found that it had been substantiated that the children were physically hit by FJD and FJA, based on the information collected and the consistent disclosure of the children and the interviews she had with the children. Ms Muller stated that the applicants should not be re-authorised as carers.

  5. There has been a complete breakdown of the relationship between FJD and her sister who is the current carer of the children. There also appears to be wider dispute in the extended family. It is noted that one of FJD’s younger sisters provided a positive reference about FJD and FJA, and that the sister’s daughter (FJD’s niece) provided a letter detailing abuse alleged to have occurred by her aunt, who is the current carer for the children.

  6. In the KidsACT independent review, conducted some 5 months after the children were removed from the daily care and control of the applicants, it states in relation to review of DCJ’s decision to remove the children:

It is noted the documentation provided was at times incomplete (group supervision notes) and difficult to follow. The interview notes could not be located relating to DCJ’s interviews with [two of the older children] which from the reviewed documents, presents as having a significant bearing on the decision to change placements. The letter referred to in [older sibling 2’s] bag was also not located or not provided to the author. There was no ASM record provided relating to the children being assessed as unsafe in [the applicants’] care. Rather, the ASM was finalised while in the care of [the current carers], and as such, found the children to be safe.

  1. It is concerning that records of interviews allegedly conducted with the children around the time of their removal could not be located. It is also concerning that it was some 11 months after the children had been removed and after an internal review was requested by the applicants that safety assessments and recorded interviews with the children were conducted and/or recorded. It is also problematic that the delayed interviews with children were conducted in the context where the relationship with the current carers and the applicants had broken down and the children had not been seeing the applicants for some time.

  2. Both FJD and FJA were asked in cross examination about using physical discipline on the children and they denied it (except in relation to the incident with FJD described above in relation to older sibling 2).

  3. In oral evidence, FJA denied he used physical discipline upon any of the children. It was put to FJA that he slapped one of the children with an open hand for putting his feet on the couch, FJA denied this. It was also put to FJA that he had hit one of the children with an open hand on his bottom, FJA denied this.

  4. There is no evidence before us recording the actual transcript of interviews of the children making the allegations or that the children have been referred to specific therapy in relation to the allegations.

  5. The separate representative that was appointed for the children did not question the children in relation to the allegations of physical abuse by the applicants.

  6. In our view, both FJD and FJA presented as truthful and credible witnesses. FJD readily conceded when she did hit older sibling 2. We do not find on the limited evidence before us that the applicants were using excessive physical discipline on the other children.

Past concerns

  1. In relation to past concerns, DCJ had received a Risk of Harm Report on 1 March 2019 noting that FJD had left four of the children, in the care of their birth mother (her daughter), without approval. Upon returning to the home, FJD found that the mother was intoxicated, and the children had been left unsupervised. A Reportable Conduct Unit Investigation was conducted. FJD conceded it was a lapse of judgment to leave the children in their mother’s care and DCJ took no further action.

  2. We accept that it was a lapse of judgement on part of FJD and there does not appear to have been a repeat of the incident in that regard.

Alcohol

  1. As stated previously, DCJ makes allegations that the applicants drink alcohol frequently and those allegations only emerged after the children were removed from the applicants’ care. At the hearing, both applicants denied that was the case.

  2. FJD stated that she drank when a rugby game was on and at sporting events, birthday parties or gatherings. She stated that weekly she might drink 2 or 3 cans of beer and if there was a birthday, it might get to 4 or more. She stated that she generally drank low calorie beer. FJD stated that her husband, FJA, hardly drinks because he does shift work and that the applicants never argue when they drink.

  3. In her evidence, FJD had provided a series of bank statements. At the hearing she stated that the bank statements had been provided by accident and instead she had intended for them to be sent to Legal Aid as part of an application for a grant for legal representation. She did not object to those statements being considered by the Tribunal, however FJA did. We decided to allow them to be tendered as part of the evidence.

  4. The bank statements span from 13 September 2017 to December 2018. There are multiple purchases from liquor shops recorded on the statements, with varying amounts ranging on average from $40 to $100 which regularly appear on the bank statements.

  5. During cross-examination, FJD was asked questions about her alcohol consumption. FJD said she would buy alcohol about once a fortnight. When taken to the bank statements and asked about the more frequent purchases of alcohol, FJD explained that the purchases of alcohol were not always for her, but rather in the lead up to parties she would stock up on alcohol by purchasing over time.

  1. FJA stated that he had not used any alcohol in the past 5 months and his rule was not to drink during working hours. He stated that the only time he drank was on special occasions and that it was very rare for him to drink because he worked shift work in disability. He stated his drinking of alcohol was limited and he was never a big consumer of alcohol and stated he might have 2- 4 cans of alcohol every 2 months. He stated that he never fought with his wife if he had a drink and did not mention alcohol in front of the children.

  2. FJA’s brother was cross examined at the hearing. He stated he had not observed the applicants say harsh words to the children and that the applicants tended to the needs of the children. FJA’s brother had not observed the applicants arguing or intoxicated. He knew his brother to be only a social drinker. FJA’s brother had been with the applicants for Christmas, new year’s parties and birthday parties and met cousins and football coaches and had never seen the applicants drunk.

  3. FJA presented as a truthful witness as his evidence was consistent. We accept his evidence in relation to his alcohol use.

  4. DCJ submits the applicants spent a significant money on alcohol and that in particular, FJD minimises her alcohol consumption.

  5. Based on the amounts she has spent on alcohol, we find that FJD has minimised her alcohol spending and consumption.

  6. In relation to the accusations that the applicants fought when they drank alcohol, that is again based on the reports of the children obtained some many months after the children were removed from the applicants' care. We accept the applicants’ evidence that they did not fight after consuming alcohol. We are not satisfied on the evidence, that the applicants fought when they were intoxicated in the presence of the children.

The applicants' view

  1. FJD stated that she notified DCJ regarding the issues with older sibling 2 and stated that she had not been supported by the respondent to care for seven children. During cross-examination, Ms Dalton gave evidence that she was not aware whether consideration was given to any supports or training for the applicants prior to the removal of the children.

  2. The applicants also gave evidence about the children’s involvement in local rugby league and how they fostered that involvement. FJD stated that she has an interest in the welfare of the children beyond carer as she is the children’s biological grandparent and that her and her husband had made many sacrifices to ensure the wellbeing of the family.

  3. The applicants stated that the children had been in their care since 1 December 2017 and some from the time they were born. They believe they had provided the children with love, support and guidance.

  4. The applicants also provided references which were positive about the care the applicants had given to the children.

  5. It is unfortunate and surprising that there is very little by way of psychological or psychiatric assessment and reports for the children. There is contained in the applicants’ documents, a medical assessment dated 17 September 2020 and completed by Dr Anthony Zehetner from the Care and Intervention for Children Affected by Drugs and Alcohol. The assessment was completed for one of the children while the child was in the applicants’ care. The assessment notes that the child had been taken by the applicants to see Dr Anthony Zehetner and another senior psychologist because the child had been referred for possible Foetal Alcohol Spectrum Disorder. We note that under the heading ‘carer support’ it states:

[FJD] is taking care of six children with special or high needs at her age being their grandmother. We strongly recommend her being supported in her parenting and daily living challenges. This could be provided by a family support service, and we hope for this to be facilitated by her Paediatrician.

The Correct and Preferable Decisions

  1. The applicants' statements to us demonstrate that they love their grandchildren. In their evidence to us they were open, honest and their emotion demonstrated they cared about the children. We found the applicants to have been credible witnesses who were honest and readily disclosed when they had done something wrong. The slapping of older sibling 2 in the face by FJD is unacceptable. However, we accept it was an isolated incident. The minimisation of the use of alcohol by FJD is concerning and those two matters do pose some risk to the general welfare of the children. We are mindful of the difficulties for the applicants (or anyone) in caring for six children, some with special needs. As identified in the medical report from Dr Anthony Zehetner, such care will always require support for the carers. It is disappointing that further investigations were not done prior to the removal of the children from the applicants’ daily care and control. There is very little evidence any support offered by the respondent to the applicants in the challenges they were having at the time, particularly in relation to older sibling 2.

  2. It is not our role to review the care of the current carers. However, the general circumstances of the children’s current placement are relevant factors to be considered in the context of the children’s wishes and what has happened since they were removed from the care of the applicants.

  3. By the time this matter came for hearing before us, the children had been residing in their current placement for about 18 months. One child is enrolled in an early learning centre and the other three children are enrolled at a local State School. The school progress reports indicate that the children are well adjusted at school, are attending school regularly and progressing well. Only four of the children are living with the current carers.

  4. Ms Muller gave evidence that during her monthly home visits she has observed the children to be stable in their current placement. The 17-year-old child no longer resides with the current carers and is currently living at his girlfriend’s home with her family. He was enrolled in year 11 at a local State High school but has now been left school and is looking for work in construction.

  5. The separate representative travelled to Queensland to interview the children and obtained the views of three of the children separately and spoke to the 17-year-old sibling over the phone. Two of the children interviewed, separately expressed views that they did not want to live with the applicants and one child was reluctant to express a view.

  6. The 17-year-old sibling wanted to continue living with his girlfriend's family and is of the view that his siblings would benefit from living with the applicants. Notably, in a statement of the sperate representative dated 9 November 2022, the 17-year-old siblings stated to the separate representative:

[17-year-old sibling] thinks that [the four children] would be better off living with [the applicants] because they will be treated better, will have more fun, and will have more to do on the weekend.

[17-year-old sibling] said at [the applicants’] house, he and his siblings would get yelled at a lot. He said he would hope that changes if his siblings live there again.

At [the current carer’s] house, he and his siblings would also get yelled at and they would be sent to their rooms when they got into trouble.

[17-year-old sibling] would like to see more of his siblings. The last time he saw them was when he collected them from school a month or two ago and took them back to [the current carer’s] house. He didn’t go to the house with them,

[17-year-old sibling] would feel more comfortable to go and see his siblings if they were living with [the applicants].

  1. Given the youngest child’s age, the separate representative did not seek his views as to his living arrangements. The separate representative does not support the children being returned to the applicants.

  2. We asked Ms Muller about the children’s current activities, especially rugby league, which the children had been heavily involved in while they were in the applicants’ care. Ms Muller indicated that the children were involved in swimming lessons in the afternoons and one of the children only wants to play football at school. Ms Muller confirmed that nothing has been disclosed to her in relation to sexualised behaviour. She stated she regularly speaks to the children, and they are very forthcoming when speaking on the phone. They told her they have been excited to speak to their biological parents on the phone. A process is also in place to ensure the children become Australian citizens.

  3. We find that both decisions of the respondent should be affirmed. On the evidence before us, the children were removed from the applicants’ care more than 18 months ago and they appear to be well settled in their new placement. Two of the children have expressed that they do not wish to return to the applicants’ care. Ms Muller explained at the hearing, that given how well settled the children were at school and in their new placement, a change back to placement with the applicants would be disruptive. We accept that a change of carers would be disruptive to the children.

  4. However, we remain concerned about how the respondent and the caseworkers for the children have approached these proceedings and management of casework. As discussed above there are concerns about how the children were removed and the investigation and notice process surrounding the removal. We are also concerned about the lack of evidence which would demonstrate how the applicants were being supported in the care of the children.

  5. While we accept there is conflict in the extended family, there are allegations that have been made about the current carer and it is unclear to us whether those allegations have been investigated by the respondent. FJD’s niece (who is also the niece of the current carer) resides in New Zealand. She provided a letter dated 14 October 2022, about her aunt who is now the current carer of the children. She states that at the age of 9 years she was placed in the care of that aunt for a period of 4 years. The letter states that during the time she and her cousins (her aunt’s own children) were physically and emotionally abused. The letter states that a police report was lodged in relation to an incident of physical abuse and a statement was provided and photos taken. As a result, social welfare became involved and removed her from her aunt’s care. The niece did not appear at the hearing, but in our view, these serious allegations must be further investigated, including, if possible, enquiries made with the police station that is named.

  6. Further, allegations were put by FJD that the current carer, her sister, uses marijuana. Ms Muller was not of the view that was the case and stated she had never smelt marijuana when she went to the house. While those allegations were raised before us for the first time at the hearing, they should be investigated by the respondent if they have not already done so.

  7. The respondent’s attitude towards contact between the children and the applicants is also concerning. We note that Ms Muller gave evidence that the children are now having more regular contact with the birth parents who live in New Zealand. However, Ms Muller was more dismissive of maintaining a relationship between the applicants and their grandchildren. It does not appear that any assessments or consideration has been given to the important relationship between the children and the applicants. In our view this relationship is as important as the relationship with their birth parents. Despite repeated requests and the applicants living nearby to the children, the applicants have not seen or had contact with the children, who they have raised from very young ages, for many months.

  8. Ms Muller stated that the children do not want to see their grandparents. FJD indicated that at one point that Ms Muller had stated to her that she should count herself lucky that the children were placed in care with someone as good as her sister. The evidence also demonstrates that the applicants’ request in relation to requests to visit the children are often delayed or remain unanswered by caseworkers.

  9. While we accept that the children do not have to see their grandparents against their wishes, and the views of the children are important, we are also concerned that there is wider family conflict that may be influencing the children’s views. It is concerning that no referrals have been made for the children to attend therapy or see a psychologist or psychiatrist.

  10. The applicants acknowledge that their relationship with the current carers has broken down and both applicants indicated that they see some benefit to participating in some form of family therapy to help restore that relationship with the children and the current carers.

  11. In our view, the inter-family dispute may have been detrimental to the children’s relationships with the applicants. The applicants and the current carers had previously enjoyed a very close relationship. FJD gave evidence that they moved to Brisbane so they could rely on the support of the current carers. The present carers had previously been utilised as respite carers for the children

  12. Culturally, it appears that extended family relationships are important to this family. Ms Muller indicated that DCJ would give some consideration to funding such therapy.

Recommendation

  1. We are of the view that family therapy should be undertaken to ascertain whether there should and could be a re-establishment of the relationship of the applicants with the children and the current carers. In that regard, we have made recommendations pursuant to subs 32(2) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW).

Orders

  1. We make the following orders:

  1. The decisions of the respondent to remove the children from the daily care and control of the applicants and deauthorise them as carers is affirmed.

  2. Pursuant to subs 32(2) of the Community Services (Complaints, Reviews and Monitoring) Act 1993, the Tribunal recommends the respondent facilitates family therapy to help restore that relationship between the applicants, the children and the current carers.

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


Registrar

Decision last updated: 16 February 2023

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