FMP v Secretary, Department of Communities and Justice

[2022] NSWCATAD 330

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

FMP v Secretary, Department of Communities and Justice [2022] NSWCATAD 330

Hearing dates:

29 September 2022

Date of orders:

11 October 2022

Decision date:

11 October 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member

Decision:

The application for a stay is refused

Catchwords:

INTERLOCUTORY – stay – Children and Young Persons (Care and Protection) Act 1998 – out of home care - restoration – cancellation of authorised carers authorisation

Legislation Cited:

Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW)

Cases Cited:

AHJ v NSW Trustee and Guardian [2011] NSWADT 311

DFS and DFT v Challenge Community Services [2017] NSWCATOD 177

The Secretary, Department of Family and Community Services v Allana Pearl Smith [2016] NSWSC 1384

Ucer Investments and Resources Management Pty Ltd v Commissioner for Fair Trading [2016] NSWCATAD 147

Category:

Procedural rulings

Parties:

FMP & FMQ (Applicants)
Secretary, Department of Communities and Justice (Respondent)

Representation:

Solicitors:
Applicants (Self-represented)
Crown Solicitor (Respondent)

File Number(s):

2022/00252746

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 was an application for a stay of a decision made by the Secretary, Department of Communities and Justice (the respondent and DCJ) to cancel the authorisation of FMP and FMQ to be authorised carers and also a decision removing a foster child from their care.

2. FMP and FMQ (the applicants) are married. FMP is the male person in the relationship and conversely, FMQ is the female. They reside at the same premises in NSW.

3. It is not in dispute that parental responsibility for a child, who at the time of this hearing was 2 years of age, has been granted to the Minister, for Families, Communities and Disability Services, by final order of the Children’s Court of New South Wales.

4. Relevantly, FMP and FMQ were the authorised as out of home carers with the daily care and control of the child. They were so authorised pursuant to the provisions of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Care Act”). FMP and FMQ have been the primary carers for the child since May 2020. They are the child’s maternal cousins. FMP and FMQ have two biological children who also reside in the family home.

5. On 16 August 2022, the respondent made a decision to remove the daily care and control of the child from both FMP and FMQ. Also on that date, the respondent decided to cancel FMP and FMQ’s authorisation, as authorised carers.

6. Following the two decisions being made, on 25 August 2022, FMP and FMQ filed an application in this Tribunal seeking administrative review of the two decisions.

7. On 19 September 2022, FMP and FMQ lodged an application seeking an interim order for the daily care and control of children to be returned to FMQ and for the authorisation of FMP and FMQ as authorised carers to be restored.

8. The respondent opposes the interim application.

9. I decided to refuse the interim application. These are my reasons.

Background

10. On 24 September 2021, DCJ received a risk of significant harm report (ROSH) which contained allegations that FMP had sexually assaulted the child’s older sibling “A”. The allegations concerned A reporting that FMP had slept in her bed when she was about 12 years old. He is alleged to have put his finger on her vagina and place A’s hand on his penis. This occurred some five years ago. FMP does not deny that he slept in A’s bed but denies the allegations of sexual/indecent assault. NSW Police investigated the allegations. Charges were not laid against FMP.

11. Following the ROSH, a verbal safety plan was devised by officers of the respondent to ensure the protection of the child. The respondent concedes that it is usual for a safety plan to be devised in writing and the plan is usually accepted by authorised carers signing the plan. Unfortunately, this procedure was not followed by the respondent’s officers. The verbal safety plan has caused, in the applicants’ minds considerable confusion.

12. The allegations in the ROSH report in respect of FMP were deemed to meet the threshold of a reportable allegation under the Children's Guardian Act 2019 (NSW). A reportable conduct investigation has commenced. It is unclear whether a reportable conduct report will be available in three weeks, which time period has been relayed to the applicants, or, within 3 months as proposed by the solicitor for the respondent. Either way, the findings in the report will be crucial in assisting the Tribunal to determine the substantive applications. Particularly, the application for FMP to be granted interim relief to have his carer authorisation reinstated, is refused on this basis alone. It is too premature to consider restoration of the child to FMP and to do so would not ameliorate the potential risk to a child without knowing the outcome of the investigation.

13. I was also informed that a Community Service Centre is to provide a report concerning the investigation within 4 weeks. The respondent submitted that the information in that report is also relevant to the disposition of the substantive application. I accept that submission.

14. In further support of the interim application, the applicants express particular concern about the safety of the child in her current care placement. In this regard, the child has been diagnosed with a fracture to her left leg. The applicant’s suspect that the current carer should be a person of interest and that the NSW Police Force, DCJ and the principal at the child’s day care centre have not directed sufficient attention to the risk posed to the child by the carer.

Non-publication order

15. An order was made by the Tribunal on 15 September 2022 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. It was desirable to do so to protect the identity of the child and A.

Tribunal’s jurisdiction to review the removal decision

16. I am satisfied that the Tribunal has jurisdiction to review a decision to remove a foster child from the care of an authorised carer and also to review a decision to cancel FMP and FMQ’ authorisation as carers.

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

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

19. A decision of “the relevant decision-maker to grant to, or to remove from, an authorised carer the responsibility for the daily care and control of the child or young person” is “an administratively reviewable decision for the purposes of section 28(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993”: Care Act, s 245(1)(c). The “relevant decision-maker” is the person or body authorised by or under the Children and Young Persons (Care and Protection) Act or the regulations to make the decision (Children and Young Persons (Care and Protection) Act, s 245(2)).

20. An internal review was undertaken by the respondent on 17 August 2022. The review does not specifically refer to the decision to cancel the applicant’s authorisation as authorised carers. However, I note the respondent’s reasons for that decision are the same as the decision to remove child A from their care, namely, the applicants’ failure to adhere to the safety plan. I sought submissions from the parties on this point. The respondent submitted that the decision of 17 August 2022 was an internal review. The applicants submitted that the decision on internal review addressed the same question. Even where the internal review did not specifically refer to the decision to cancel the applicants’ authorisation as carers, I am satisfied that it is necessary for the Tribunal to deal with the application to protect the applicants’ interest and that the application was made within a reasonable time. In relation to the decision to cancel the applicants’ authorisation as authorised carers, the conditions in s 55(4)(b) of the ADR Act are met. Jurisdiction is enlivened.

Stay of decision

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

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

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

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

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

(c)  the public interest.”

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

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

Evidence filed in the stay application

Applicants’ material on the stay:

24. The applicants relied upon the following material:

• Application filed 19 September 22

• Affidavit of the applicants filed in the Children’s Court 19 September 2022

• Photographs x 2

• Affidavit of the applicants filed in the NCAT 26 September 2022

• Affidavit of the applicants filed in the Children’s Court 28 September 2022

Respondent’s material on the stay:

25. The respondent relied upon the following material

• Affidavit DCJ employee - 27 September 2022

• S 58 bundle

26. The respondent filed written submissions. Each party made oral submissions.

Should the Tribunal grant a stay of decision?

27. DCJ opposed the grant of a stay. The main reason for DCJ’s opposition appeared to be the proposition that a stay would have a negative effect on the child and the evidence reveals she is at significant risk of harm. The risk of harm arises predominantly from the applicant’s agreeing to a safety plan and breaching it. It is the breach of the safety plan and the risk posed by FMP which led to DCJ making the decisions which are under review.

The applicant’s evidence about the safety plan

28. The applicants submit that there was a safety plan put in place to protect the child from risk of harm concerning the allegations against FMP. The applicants contend that the safety plan was always verbal and not reduced to writing. This is not in dispute. The agent for the applicant’s submitted that the safety plan was ambiguous and confusing. It was this ambiguity and confusion which led to the alleged breach of the plan.

29. Relevantly, the plan allowed FMP to be present in the home on the condition that he not be left unsupervised with the child, that he not provide care for the child and only be present for one hour per day. The plan only allowed FMP to be in the home in the evenings for dinner from either 4.45pm – 5.45pm, or from 5.00pm – 6.00pm, or, as the applicants contend, for any one hour in the evening. It is the latter “for any one hour in the evening” which the applicants, and particularly FMQ, says caused significant confusion.

30. The material before me establishes that FMQ on numerous occasions expressed her confusion to officers of the respondent about the safety plan. Despite this, she says the times in which FMP was allowed to be in the home of an evening changed or were not clarified. I accept that FMQ was confused about the plan. However, in the respondent’s s 58 documents, there are specific notations about the times in which FMP was allowed to be in the home. After the meeting on 11 February 2022, the period was for one hour between 4.45pm and 5.45pm. I find there is no ambiguity about that time period. I also find that the notation records this plan being discussed and agreed to by the applicants. Indeed, FMP moved out of the home in furtherance of the safety plan. I do not accept there can be confusion about this.

31. In the minutes taken by the DCJ caseworker on 11 July 2022, the record indicates that FMQ again expressed confusion about the time FMP was allowed to be in the home. In this context, the notation records that a case officer informing FMQ that the safety plan allowed FMP to visit from 5.00 – 6.00pm.

32. The notation also records FMQ stating: “FMP’s work hours can vary so he is not always available to come over exactly at 5.00pm, FMQ said this is a miscommunication”. I find that this part of the notation infers that despite there being a period of 5.00-6.00 pm being the period in which was most likely agreed, FMP’s work commitments did not always coincide with the period of time he could visit. This in my mind leads to a conclusion that there was more likely than not a breach of the agreed safety plan. I also find support in the notations where specific time periods had previously been given, which indicate that the applicants were aware of the two named time period (4.45-5.45pm and 5.00-6.00pm). None of which allowed FMP to be in the home at 7.00pm. This is a preliminary view for the purposes of the interim application. I am sure further evidence about this confusion will be advanced and further examination at the substantive hearing. However, when applying the objects of the Care Act, on this interim application, I have given my preliminary finding significant weight. This is because, there is, prima facie a breach of the verbal agreed safety plan which places the child at risk. Restoration of the applicant’s authorisation to be foster carers is at this interim stage premature, and such an order may place children at risk pending the determination of the substantive application.

Interests of the children

33. The applicants jointly submit that the child is at risk in her current placement. The applicants have taken considerable time to identify unanswered questions concerning the child sustaining a fracture to her leg and how that occurred. I am unable to resolve that issue on the evidence before me. However, the circumstance of the injury is troubling and raises considerable questions, which I implore DCJ to make the appropriate enquiries. What is very apparent from the material before me is that the child left the applicants care, unharmed. I note from the bar table Ms Daley the solicitor for the respondent, said that the fracture may be historic. I am unable to make a conclusion in that regard and it would be dangerous to do so without evidence.

34. I accept that a change in the child’s placement is likely to cause her anxiety and upset.

35. I accept that, if a stay of the decision is not granted, the continued separation of the child from the applicants is likely to be upsetting and confusing for her. However, in the circumstances of the matters set out in [37] above, I am not satisfied her safety can be protected without final determination of the allegations made against the applicants. In considering the paramount safety and wellbeing of the child’s interests a stay should not be granted until the disposition of application. This is because, if it is ultimately decided that the respondent’s decision is the correct and preferable decision, the child will not be transitioned back into the applicants’ care at a later point in time because of serious risk of harm.

Interests of the applicants

36. It is clearly in the applicant’s interests for a stay to be granted. On the limited evidence before the Tribunal, the applicants stated that the distress caused to them, the child and their children is significant. I accept that the applicants, the child and their children have suffered emotionally as a result of their removal.

The public interest

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

38. As Brereton J has observed, “there is considerable public interest in the welfare of children in out-of-home care”: The Secretary, Department of Family and Community Services v Allana Pearl Smith [2016] NSWSC 1384 at [30]. There is evidence before me, which before being tested at a final hearing indicates the child’s welfare and safety could likely to be adversely affected by significant risk of harm, if they were to remain with FMQ (or FMP). I am satisfied that the public interest is served by refusing the stay application for these reasons until these matters are tested at the substantive hearing.

39. I consider that the welfare and safety of the child is best served by her living in an alternate placement until these proceedings are determined, and that the public interest favours maintaining the child’s safety and wellbeing until such time as the Tribunal determines the substantive application. Similarly, to restore the applicant’s authorisation as authorised carers is premature pending the disposition of the substantive application.

40. I have also accepted the evidence of DCJ that another restorative option is being considered in placing the child with a different maternal cousin. Should this proceed, a further change to the child’s residence back to the care of FMQ, and possible removal from her, is not in the child’s best interests.

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

41. I am not satisfied that a stay is necessary to secure the effectiveness of the determination. If the child remains with FMQ until the application is determined, the child’s interests in being in that placement may mean that, by the time of a final hearing, she may not remain there if the Tribunal was to affirm the decision. The Tribunal would have to have regard to the harm caused to the child in removing her from a placement in which she may, by that time, be settled, or at least be in the process of adjusting to.

42. It is appropriate to keep in mind the common law principles in relation to the exercise of interlocutory injunctions: AHJ v NSW Trustee and Guardian [2011] NSWADT 311 at [14] and Ye v Commissioner for Fair Trading; Ucer Investments and Resources Management Pty Ltd v Commissioner for Fair Trading [2016] NSWCATAD 147 at [32]. I consider that the applicants have not established a prima facie case for a stay to be granted.

43. The refusal of a stay is also consistent with the principle that “the safety, welfare and well-being of the child or young person are paramount”: Children and Young Persons (Care and Protection) Act, s 9(1). I accept, as the applicant’s submitted, the disruption to the child’s attachment to the applicants may cause psychological harm to her. However, the untested allegations concerning her safety and wellbeing outweighs this harm and it must be held paramount.

41. I also find, for the same reasons which are set out above, that a restorative order should not be made to reverse the decision to cancel the applicant’s authorisation as authorised carers prior to the final determination of the substantive application.

42. For these reasons, I consider that it is appropriate to refuse the stay.

Orders

46. I make the following orders:

1. The application for a stay is refused.

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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

Amendments

11 October 2022 - Catchwords added to Coversheet.

Decision last updated: 12 October 2022