FQT v Key Assets (No 1)

[2022] NSWCATAD 416

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FQT v Key Assets (No 1) [2022] NSWCATAD 416

Hearing dates:

22 December 2022

Date of orders:

22 December 2022

Decision date:

22 December 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

T Simon, Principal Member

Decision:

(1)   The application for administrative review of the respondent’s decision, made on 14 December 2022, to remove children from the applicant’s care is to be dealt with by the Tribunal, notwithstanding that the applicant has not applied for internal review of the decision.

(2)   The application for an interim order that the children be returned to the care of the applicant is granted subject to the following conditions:

(i)   The applicant will ensure that all media devices in the home have protection installed to prevent the children from accessing pornography.

(ii)   The applicant is to regularly monitor media devices in the home for access to pornography, that may have occurred by either child, and report any instances of access found to the respondent immediately.

(iii)   The applicant will work with Key Assets in a manner that is respectful and comply with her obligations under the Carers Code of Conduct.

(iv)    The applicant, will at all times, provide a home that is safe, clean and comfortable and meets the needs of the children.

(v)   The applicant will provide information to the respondent about the children’s well-being, including issues that may arise about their development, health, behaviour and educational progress as required under the Code of Conduct or when requested by the respondent.

(vi)   The applicant will allow in-home visits by the respondents when requested by the respondent.

(vii)   The applicant will follow the directives of the respondent in relation to medical, educational and therapy interventions for the children.

(viii)    The applicant will follow the directives of the respondent regarding connection with the children's birth parents and significant others and promote and foster those connections.

(ix)   The applicant is not to speak disrespectfully or denigrate the respondent, the birth parents or significant others in the presence of the children.

(3)   The respondent is to arrange for the children to be returned to the care of the applicant by 4pm on 22 December 2022.

(4) The publication or broadcast of the name of the children and the applicant is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

Note: 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.

Note: Either party may approach the Registry with a miscellaneous application to vary or revoke the interim order

Catchwords:

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

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)

Cases Cited:

AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81

DHJ v Secretary, Department of Family and Community Services [2018] NSWCATAD 45

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

QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113

Category:

Procedural rulings

Parties:

FQT (Applicant)
Key Assets (Respondent)

Representation:

Solicitors:
Care Legal (Respondent)

File Number(s):

2022/383122

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 an interim order in relation to a decision removing two children from the care of an authorised carer.

2. At the time of the interim hearing, it had been 8 days since the children had been moved to a placement with another carer, who is also a carer for another of the children’s siblings.

3. I decided to grant the interim order that the children be returned to applicant, pending the outcome of the application for review with conditions. I told the parties that written reasons for the decision would follow.

4. Together with her ex-husband, the applicant was initially authorised as a carer for the children in or about September 2015. The two children were aged 2 and 3 years at the time they came into the care of the applicant. In about May 2016 the applicant’s marriage ended, and the applicant became the sole carer of the children. In or about December 2016, parental responsibility was allocated to the Minister, presently the Minister for Families and Communities, Disability Services, for both children. Parental responsibility remains with the Minister. The children have continued in the care of the applicant for just over 7 years and are now aged 9 and 10 years.

5. Both parties agree that at 1pm on Wednesday 14 December 2022, two employees of the respondent attended the home of the applicant and advised that a decision had been made to remove the children from the applicant’s care and that the children would be picked up from school that afternoon and placed in alternative placement.

6. The respondent opposed the application for interim orders for the return of the children to the applicant’s care.

7. The applicant had filed a bundle of documents with her application which were marked exhibit 1 and the respondent had filed a bundle of documents which were marked exhibit 2. The parties made oral submissions at the hearing. The Tribunal has considered that material and submissions in coming to its decision.

Non-publication order

8. At the hearing of the interim application, orders were made prohibiting the publication or broadcast of the name of the applicant and any child referred to in these proceedings (Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(a)).

9. Further, pursuant to s 65 of the Civil and Administrative Tribunal Act, there is a prohibition against publishing the names of certain persons to whom proceedings relate. If the proceedings are for a decision for the purposes of the community welfare legislation within the meaning of the Community Services (Complaints, Reviews and Monitoring) Act 1993, the prohibition includes a person to whom any proceedings in the Tribunal relate, a witness in proceedings, or a person who is mentioned or otherwise involved in the proceedings – see s 65(2) of the Civil and Administrative Tribunal Act.

10. I am satisfied that it is necessary to prohibit the publication or broadcast of the name of the applicant and any child referred to in these proceedings, to protect the identity of the children. I have also refrained from referring to the names of various witnesses and locations to further protect the anonymity of the children.

Tribunal's jurisdiction to review the removal decision

11. The Tribunal has jurisdiction to review a decision to remove a child from the care of an authorised carer.

12. Section 30 of the Civil and Administrative Tribunal Act states 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.

13. Section 28(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act provides that a person may apply to the Tribunal for 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).

14. 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’: Children and Young Persons (Care and Protection) Act, s 245(1)(c).

15. 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)). I will assume, for the purposes of this decision, that the respondent had the power to remove the responsibility for the daily care and control of the children from the authorised carer. There was no submission to the contrary.

16. Section 48 of the Administrative Decisions Review 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.

17. The respondent acknowledged at the hearing, that no written decision, as is required by s 48 of the Administrative Decisions Review Act, was provided by the respondent to the applicant, when they advised her that they were removing the children from her care on 14 December 2022.

18. Instead, the applicant was provided with an External IRO Pap/Carer Review Report (the independent assessor report) dated 7 November 2022 and completed by Wendy Pezzutti. The applicant was told by the employees of the respondent, at the time they attended to advise her of the decision to remove the children, that they would not discuss the report with her.

19. Section 49 of the Administrative Decisions Review 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 Administrative Decisions Review 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.

20. Section 3 (a) sets out that one of the objects of the Administrative Decisions Review 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,

21. 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.

22. Further, it was not suggested by the respondent that the children had been removed from the placement pursuant to any of the emergency powers which are available to them under the relevant legislation. The independent assessor report is dated over a month prior to the respondent advising the applicant that they are removing the children. In those circumstances it is peculiar and inappropriate, that an agency with case management of a matter, as sensitive as the care of children, should circumvent that process and not give to the applicant a notice of the decision in writing together with notice of her right to have the decision reviewed, as is part of the respondent’s obligation under s 48 of the Administrative Decisions Review Act.

23. The applicant did not apply for internal review of the decision to remove the children from her care and seeks that the Tribunal deal with the matter to protect her interests. The general rule is that an application to the Tribunal under the Administrative Decisions Review Act may not be made unless the applicant has applied for an internal review and the review is taken to have been finalised (Administrative Decisions Review Act, s 55(3)). However, if this has not occurred, the Tribunal may deal with the application if it is satisfied that it is necessary for it to do so to protect the applicant's interests and the application was made within a reasonable time (Administrative Decisions Review Act, s 55(4)).

24. The respondent’s decision to remove the children was made on 14 December 2022. The applicant applied to the Tribunal for review of the decision on 20 December 2022 and applied for an interim order in relation to the decision on the same day. I am satisfied the application was made to the Tribunal within a reasonable time.

25. I also find it is necessary for the Tribunal to deal with the application to protect the applicant's and the children’s interests. The applicant's interests are immediately and directly affected by the decision to remove the children from her care. The applicant has been the carer of the children for 7 years and since they were 2 and 3 years old. Having the children removed from the applicant would no doubt cause the applicant stress and impact on her relationship with the children. That is further exacerbated by the fact that Christmas was about 10 days away when the children were removed to another placement. The applicant has provided a letter from an accredited Mental Health Social Worker dated 16 December 2022. The social worker has been working with the applicant by way of therapeutic intervention around her stress and anxiety. The social worker notes that the applicant has generalised anxiety from the recent months of stress she has been under in relation to the children and the reports made by the respondent. The social worker is also concerned about the impact on the children and the applicant following the recent removal of the children.

26. Case notes provided by the respondent and dated 19 December 2022 indicate that, only days after the children were removed, they have been already taken on a tour of the new school which they are to attend. I am mindful that the longer the children are away from the 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.

27. In those circumstances, I find the situation to have a degree of urgency and it is necessary for the Tribunal to deal with the application to protect the applicant’s interests notwithstanding that the applicant did not apply for an internal review. I am also mindful that the applicant was not advised of her rights to review in writing, at the time of the making decision, as was required by the respondent.

28. For those reasons, I have decided to deal with the application, notwithstanding that the applicant did not apply for an internal review.

The application for interim order

29. The Tribunal has the power to make an order ‘staying or otherwise affecting the operation of the decision under review’ (s 60(2) of the Administrative Decisions Review Act).

30. The interim application was not in effect for a stay on the decision, as the removal of the children had already taken effect. Rather, the applicant was seeking return of the children to her care.

31. In AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81, Campbell JA (with whom Handley AJA agreed) dealt with the difference in effect between a stay and the power reinstate a licence and held at [96]– [97]:

96. In the present case (unlike McBride v Walton), the Tribunal has a wider power than merely to grant a stay. It has power, under section 60(2) ADT Act, to "make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application." That power is one that is wide enough to enable the Tribunal to temporarily reinstate a licence that has been revoked pending the hearing of an application for review of a decision to revoke the licence.

97. If a notice of revocation of a licence under the SI Act was served, which said that the revocation would take effect in 21 days after service, there may still be a problem in the Tribunal granting a stay, properly so called, before the 21 day period had expired. It might be argued that it is only when there is an application for review of a "decision" that a stay can be granted under section 60, and the relevant "decision" is the revocation itself. However, even if that argument is right it would be possible for a licensee to put itself into a situation where it was in a position to lodge an application for review, and an application for temporary reinstatement of the licence, to commence as soon as the Tribunal could make an order after the revocation became effective. Alternatively, it might be argued that the relevant "decision" is to revoke the licence in 21 days, and that that decision could be stayed by an order made before expiry of the 21 days. It is not necessary to decide which of those arguments is right. As well, I leave for further argument whether section 60(2) is wide enough to enable the Tribunal to restore a revoked licence with retrospective effect.

32. His Honour also stated the following at [105]:

105 It should at once be recognised that for the parties to apply for, and the Tribunal ultimately to grant, a “stay” of the decision of the Commissioner to revoke the licence was an inapt use of language. If ever in the future the Tribunal wished to achieve the effect that a revocation of a licence that had already taken place, was to be treated as though it had not taken place, pending the hearing of an appeal against the decision to revoke, it would be highly desirable for the Tribunal, to achieve that effect by language that made clear what the Tribunal was doing, such as that “the licence for all purposes be treated as on foot pending the hearing of the appeal”. As well as clarity, use of such language has the effect of helping to make clear the seriousness of such an order.

33. While this is not a decision regarding the cancellation of a license, I am satisfied that consistent with the reasons extracted above from AVS, it is within the scope of s 60(2) of the Administrative Decisions Review Act, for the Tribunal to make an order for the temporary reinstatement of the children into the applicant’s care, pending the outcome of the review application.

34. Section 60(3) of the Administrative Decisions Review Act empowers the Tribunal to make orders, if it considers that it is desirable to do so, after considering:

(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.

35. In QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113, the Appeal Panel of this Tribunal summarised the considerations which should be applied when considering a stay in review applications (at [32]):

(1) whether the order is appropriate to secure the effectiveness of the determination of the application for review: s 60(2), ADR Act.

(2) whether the order is desirable taking into account:

(a) the interests of any persons who may be affected by the determination of the application for review: s 60(3)(a), ADR Act, Loveday v Commissioner for Fair Trading [2018] NSWCATAD 80 (Loveday) at [10], Re Scott and Australian Securities and Investments Commission [2009] AATA 798 (Re Scott) at [4];

(b) any submission made by or on behalf of the administrator who made the decision to which the application relates: s 60(3)(b), ADR Act, Loveday at [10], Re Scott at [4];

(c) the public interest: s 60(3)(c), ADR Act, Loveday at [10], Re Scott at [4];

(3) the applicant’s prospects of success on the application for review: AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 (AVS Group) at [129], Loveday at [10] and [11], Re Scott at [4].

36. The matter was first listed for hearing by the Tribunal on 21 December 2022. The Registry had telephoned the respondent to confirm an appropriate email address to send the notice of hearing and application. When the matter came for hearing, the respondent did not appear. The Registry made enquiries with the respondent. Ms Moran for the respondent subsequently appeared by phone before the Tribunal and advised that a notice of hearing had not been received. The matter was adjourned to the following day and the Tribunal confirmed with Ms Moran the email address at which the documents should be sent.

37. Subsequently, Care Legal filed a notice of appearance for the respondent and appeared at the interim application hearing. Mr Bennison also appeared at the hearing on behalf of the respondent and the applicant appeared unrepresented.

38. The respondent opposed the grant of a stay. The main reason for the respondent's opposition was for the protection of the children. The respondent submits that the children are at risk of psychological harm if they remain in the care of the applicant.

39. There was a considerable amount of material provided and this matter was listed quickly given the urgency of the matter and that there would have to be a delay in listing if the matter was listed after the holiday period.

40. I am satisfied, having considered the evidence and submissions of the parties, that the making of the interim order for the care of the children to be returned to the applicant until the substantive proceedings are determined, is appropriate to secure the effectiveness of the determination. If the children remain out of the applicant’s care until the application is determined, and the children have readjusted in a new placement, it may mean that by the time of a final hearing, it is not in the child's interests to affirm the respondent's decision. That is even if the Tribunal is of the view that that decision was not, at the time it was made, the correct and preferable decision. In those circumstances, the Tribunal would have to have regard to the harm caused to the children in removing them from a placement in which they may be settled or be in the process of adjusting to. This would cause irreparable loss or harm to the applicant, as it would mean that she would lose care of the children: see DHJ v Secretary, Department of Family and Community Services [2018] NSWCATAD 45 at 55.

41. Further, the continued separation of the children from the applicant is likely to be upsetting for the children and the applicant. It is in the applicant's and children’s interests for interim order to be granted. The children have been in the applicants care for 7 years and from a very young age. The welfare of the children is best served by the children living with the applicant until these proceedings are determined, and the public interest favours maintaining the stability of the children’s long-term placement until such time as the Tribunal determines the substantive application.

42. There are allegations and concerns raised by the respondent about the safety of the applicant’s home and placement of the children in the applicant’s care. The independent assessor report relies on ‘referral documents’ including case plan reviews, medical reports, medical questionnaires and other material. The assessor also based her report on 4 visits she had at the home and interviews she conducted with the applicant. The report concludes that the applicant has breached 7 standards in relation to a ‘Framework for Excellence’. While I have not set out every detail in the independent assessor report in these reasons, I have considered the entirety of the report in coming to my decision.

43. This is only a hearing of an interim application. The parties have not had a proper opportunity to provide all the evidence in relation to the proceeding and the evidence has not been challenged or conclusively examined by the Tribunal. As described in greater detail below, the applicant challenges many of the breaches alleged against her. There will need to be in this case, an evaluation of the alleged breaches and the evidence overall. At this stage of the proceedings, it is not possible to conclusively determine whether there is a proper basis for the decision. That is also not assisted by the fact that there have been no reasons for the decision or a finalised internal review.

44. To limit any potential issues relating to the safety of the children interest, I have decided to impose conditions on the interim orders. I am also mindful that s 60 (4) of the Administrative Decisions Review Act the Tribunal may, on application by a party to the proceedings, vary or revoke the interim order by making another order. Accordingly, I also noted on the orders that either party may approach the Registry with a miscellaneous application to vary or revoke the interim order.

Promotion of children’s safety

45. The independent assessor report alleges that the applicant has breached the order relating to promoting children's safety. The report alleges that the applicant has failed to provide information to the agency about the children’s well-being, including issues that may arise about their development, health, behaviour, and educational progress.

46. The assessor raises an issue in relation to water safety:

Although [the applicant’s] intentions are to keep the children safe from harm, she appears to be sheltering them at times, rather than educating them to develop their independence. The assessor has concerns with this approach noting [the applicant’s] strategy around water safety is to keep them within her sight, where this may not always be possible, and they may develop a false sense of security and/or, unhealthy dependence on [the applicant].

47. In a document which the applicant provided to the Tribunal, titled ‘PAP/Carer Review Report – External IRO’ the applicant has provided written responses and clarification in relation to various allegations made in the independent assessor report (the applicant’s written response).

48. In relation to the allegation about water safety the applicant responds:

The first rule of water safety for children is to ensure they are being supervised at all times. This is not irresponsible behaviour.

49. The assessor also raises safety issues in relation to one of the children’s uses of a pressure washer and electric hedge clippers at the applicant’s mother’s home and states that both ‘are a significant safety hazard for young children, regardless of whether or not this is supervised.’

50. The assessor notes significant concerns about safety and well-being regarding the home environment. The report determines that the applicant does not provide a home that is safe, clean and comfortable and meets the needs of the children. The assessor states:

During the home inspection and subsequent visits, the home environment did not meet Standards of Care. The home was extremely unhygienic and poses a health risk, with the amount of uncleaned urine and faeces present in the home. [the applicant later advised she had installed security screens so windows could be opened to release the stench from the home. Although this is a temporary strategy to improve the smell, this does not mitigate the problematic issue at hand, the fact that the pets in the home toilet in the home. Of most concern with this Standard of Care, is [the applicant’s] lack of insight resulting in the home environment deteriorating to this extent, as well as her normalisation of this issue, as she commented that other people who have pets in the home, would experience the same.

51. The applicant denies that the home is unhygienic or poses a health risk. The applicant stated to the Tribunal that she presently has two dogs and two cats. One cat is 20 years old. The independent assessor report notes that the applicant has taken steps to restrict the smell that may have come from the pets, including having fly screens installed so she can open windows to allow the smell to be removed. The applicant has provided photographs of the flyscreens which she had installed in between the second and third visit of the assessor.

52. The independent assessor report quotes the applicant as stating:

If I can get someone to help clean the bathrooms and kitchen and help maintain the home that would be good. Then I can focus on washing more and the rest of the house. The kids and mum have a major influence on this. I spend a lot of time with the kids doing activities on the weekends when I should be house cleaning. In summer we are at the beach or pool, and we are not home. I don’t have time to clean, and I would never get the kids to clean, that wouldn’t seem fair.

53. In the applicant’s written response, the applicant states:

When I met Helen [the current case manager] to start with, I had a cleaner and Helen would arrive to meet me on that day after the cleaner left. I had to change cleaners and I was in between cleaners where she states the house deteriorated. The house is messy, this is not incorrect, however it is not unhygienic in any way. The children are always in fresh clothes, have their own rooms with clean linen, have their own tv room and they are never sick. They do not have any risk of harm in terms of the ‘mess’ i our home. It is just regular clutter of any average family.

54. Elsewhere in the applicant’s written response she states that the assessor did not take any photographic evidence of the urine and faeces or any other parts of the home in question.

55. The applicant has also provided multiple photographs of the home which show the children in the photographs. Those photographs show the house to be neat, clean and tidy, but I accept that the photographs would not reveal any smell arising out of pets having urinated in the house. As stated above, the evidence in relation to the allegations has yet to be formally challenged or tested. I note much of it is denied by the applicant. While I accept that there may be some issues in relation to the smell of the pet urine in the house and the general state of the house, I am not of the view that the issues raised in relation to the state of the house, water supervision or the children’s use of a pressure washer and electric hedge clippers while supervised are sufficiently urgent to have warranted such immediate action to remove the children and I am not satisfied that they weigh against the granting the interim orders at this stage.

56. It may be that the applicant will need to do more about ensuring the cleanliness of the house. I have included conditions that the applicant will provide a home that is safe, clean and comfortable and meets the needs of the children and that she will allow the respondent in-home visits by the respondents when requested by the respondent.

57. The independent assessor reports also raises concerns relating to sexualised behaviour concerning one of the children. The assessor states that the applicant failed to immediately report to the respondent, allegations or incidents of abuse, neglect, ill-treatment, or reportable allegations of which she was aware. Specifically, the assessor refers to a recent incident at ‘Out of School Hours Care’ (OOSH). It was reported by OOSH that the child displayed sexualised behaviour in front of another child. The applicant states, that at the direction of OOSH, she spoke with the child who was insistent he did not do anything. She reported the matter back to OOSH who took no further action.

58. The independent assessor report also details a further incident of sexualised behaviour, in relation to the same child, that had occurred a year before. The child was approached by older boys, propositioning him to go to the bathroom to have sex. The assessor also notes the applicant’s nieces have been lifting their tops with the same child. The assessor concludes that she is concerned the applicant ‘does not understand or accept the seriousness of these issues and is deflecting responsibility, ultimately placing [the child] as well as other children at risk of harm.’

59. The respondent also provided an Alternate Assessment Report completed by the NSW Department of Communities and Justice (DCJ) dated 27 October 2022. The sexualised behaviour had come to the attention of DCJ, as all three issues relating to sexualised behaviour are raised in the Alternate Assessment Report. The Alternate Assessment Report provided was not complete, as I was not provided with ‘notes and attachments for the remainder of the response due to limited word count’, which is referred to at various parts of the report. Arising out of those incidents the Alternate Assessment Report concludes that the level of future risk is moderate and states:

The future risk level of ‘high’ was considered due to the above-mentioned ongoing risks for the children, however this has been determined ‘moderate’ as there has been no indication of physical harm being caused to the children or their physical care needs not being met. The children are engaged with school, sports, and after school care. [The child] is regularly engaged with speech therapy, [the applicant] has advocated for the [other child] to engage with therapeutic supports, and [the applicant] has agreed to engage with carer training. This lowers the risk for the children.

60. The applicant also provided with her written response, a Notice of Completion of Alternate Assessment written by Naomi Hennessy and dated 6 December 2022. The letter is addressed to Mr Bennison, the Team Manager for the respondent. Ms Hennessy, states:

Upon completion of the Alternate Assessment by DCJ, no immediate dangers were identified and the [children] were assessed to be safe, risk issues were identified and the future risk level has been assessed as moderate. Therefore DCJ will be closing the matter promptly.

As per the mandate, can you please forward a copy to DCJ of the outcome of the carer review once available?

61. It is unclear if the independent assessor report was ever forwarded to DCJ or what role, if any, DCJ had in the decision to remove the children. However, it is clear from those statements at least that that DCJ did not have ongoing concerns regarding the sexualised behaviour, or if they did, it was at the highest moderate.

62. The applicant concedes that she failed to report the OOSH incident to the respondent. At the hearing before the Tribunal the applicant also conceded that she now realises that she should have told the respondent about the incident but, at the time, she had thought it unnecessary because it had happened at OOSH, and she was following OOSH advice about how to deal with the matter. OOSH had concluded that there was nothing further to investigate and it did not occur to her to report the incident to the respondent. She stated that the non-reporting was an isolated incident over the 7 years the children had been in her care.

63. At the hearing, the respondent’s solicitor raised that she had been forwarded emails and had been instructed by her client that pornography had been located on the search history of one of the children’s iPads. Those searches had not been provided as they had only recently been found. The search history indicated that the alleged access to the pornography sites dated back to when the children were in the applicant’s care. The applicant stated that there are parental locks on the iPad and that the access may have occurred because the respondent had reset the children’s iPad.

64. Having considered the safety issues raised, I am not satisfied that there is a present risk which would weigh against the returning the children to the care of the applicant. The allegations of sexualised behaviour were investigated and there does not appear to be any present concerns raised by the DCJ or OOSH investigations in that regard. It is also difficult for the Tribunal to assess the situation regarding the access to pornography based on submissions made at the hearing. Accordingly, I made a condition on the interim order that the applicant will ensure that all media devices in the home have protection installed to prevent the children from accessing pornography. Further, I have made, as a condition of the order, that the applicant is to regularly monitor media devices in the home for access to pornography, that may have occurred by either child and report any instances of access found to the respondent immediately. The applicant must also provide information to the respondent about the children’s well-being, including issues that may arise about their development, health, behaviour and educational progress as required under the Code of Conduct or when requested by the respondent.

Promoting Health and Wellbeing

65. The independent assessor report makes finding about breaches by the applicant, relating to promoting the children’s health and wellbeing. That includes in relation to the following:

• working with the agency to meet trauma or disability needs of the children

• ensuring the children’s health, wellbeing and dental needs are met and any planned intervention is carried out in a timely manner.

• Having expectations around duties - such as chores or participation in activities - that are reasonable and reflect the age and physical and intellectual development.

• Regularly providing information to the agency about the child's well-being, including issues that may arise about their development, health, behaviour and educational progress.

66. The independent assessor report also refers to the standard to dispense medication, particularly psychotropic medication, according to medical advice. However, the assertion is followed by the words ‘(To be confirmed)’.

67. The independent assessor report states that the applicant appears to have issues impacting her mental health and the assessor contends from observations and discussions, that the applicant has poor coping strategies and unmanaged mental health, which exacerbates her anxiety and overall mental health. That in turn is impacting the care she is providing to the children. The applicant has been prescribed medication to manage depression and anxiety but has no formal diagnosis. The respondent had suggested the applicant engages with a psychologist in March 2022, but the applicant did not agree that was necessary. The assessor also notes that if the applicant’s authorisation were to continue, a full psychiatric evaluation should be undertaken on the applicant.

68. In the applicant’s written response, she states that the assessor is not a mental health expert with any formal qualifications to make the judgements she has made about her mental health. She also states that she undertook medical questionnaires with her GP in July 2020 and a further medical questionnaire on 15 November 2022, which was after the date of the independent assessor report and that she has only ever been diagnosed with anxiety. In the letter from the applicant’s social worker, the social worker states she has been working with the applicant by way of therapeutic intervention around her stress and anxiety. The social worker believes the applicant has Generalised Anxiety Disorder.

69. I am not satisfied that the applicant’s mental health issues weigh against returning the children to her care. It is clear from the social worker’s report that the applicant is experiencing stress surrounding the removal of the children and that is impacting on the applicant’s anxiety. However, the social worker’s letter and the completion of the medical questionaries indicate that the applicant is seeking professional assistance regarding her mental health.

66. The independent assessor report also notes that both children have high support needs given their trauma experiences and although the applicant has excellent knowledge of their trauma, she does not appear to have the skill set to meet those needs and the applicant adds to their trauma experiences. In that regard the assessor refers to the applicant’s language when discussing the children and states that the applicant demonstrates little empathy, understanding and love, to support the children to develop a positive sense of wellbeing.

67. In the applicant’s written response, she denies she has used all the words referred to by the assessor. The applicant acknowledges she used some of them, such as “she has an attitude” and “she’s a compulsive liar” but that they were descriptions for the assessor, not things she would say to the children or about the children in front of others.

68. The assessor also describes the applicant’s response in relation to one of the children’s expressed suicidal thoughts as inappropriate as the applicant’s management of the situation was not to have a discussion with the child for fear of playing into, what she thought, was a surface level issue which the child had learned from other children.

69. The applicant disputes that was her response and, in the applicant’s written response she states that she went to her General Practitioner for a mental health care plan and sent the plan to Oracle Psychology. She also called the Child and Adolescent Mental Health Services (CAMHS) team for assistance. The applicant states she followed appropriate protocol. The applicant alleges that it was the who respondent who refused to allow the applicant to further contact Oracle Psychology or place the child with a psychologist, stating that the respondent did not feel it was age-appropriate therapy and instead the required the child to be placed in play therapy. In that regard the applicant has included a letter from her General Practitioner which is dated 12 March 2021. The letter notes the child, who was aged 8 years at the time, was reviewed for her mental health under a Mental Health Care Plan. In the assessment the practitioner notes:

[the applicant] has concerns about her exaggerating the truth, self worth issues, and has difficulty regulating emotions

[the applicant] is concerned about thoughts of self harm. Has been telling everyone she hates her life.

Today very angry about height and weight.

74. That report demonstrates that the applicant took the suicidal thoughts seriously enough to report them to her General Practitioner and seek a mental health plan for the child.

75. The independent assessor report also raises issues about the applicant’s behaviour management strategies and states that the applicant’s choice of words, whether intentional or not, are likely to be creating fear in the children, which is likely contributing to insecurities and additional emotional trauma. The assessor is unsure whether the applicant is compliant with one of the children’s medication regimes. The assessor has concerns about the applicant’s statements that the child’s doctor has given the applicant flexibility to provide the child with additional medication in the afternoon. The assessor recommends that the respondent follow up with the child’s doctor to confirm the medication times. There are also concerns raised by the assessor about the child being encouraged to take medication independently and unrealistic expectations in making the child responsible for his asthma inhaler and not attending to other medical issues for the child.

76. In relation to the medication, in the applicant’s written response she states that she was encouraged by the child’s paediatrician, that on weekends, if the child does not need his midday tablet, he does not take it. She states that they are constantly working on strategies for the child to improve his ADHD behaviours and over time reduce his medication. In relation to being permitted to provide a third tablet in the evening as required, the applicant has included a photograph of the child’s Ritalin medication which states ‘Take one tablet after breakfast, One after lunch and half a tablet after school’. The applicant also denies that she places responsibility on the child to remember his inhaler or medication. I have no evidence before me that the respondent has ever followed up with the doctor to confirm medication.

77. The assessor also states that the applicant has interfered with the children’s engagement with several services or after a brief period of engagement, ceased their involvement, despite professionals asserting the children would benefit from continued engagement. Services that have purportedly ceased because of the applicant include, Learning Lab Clinic, Play Therapy, Rip it up Reading and Oracle Psychology.

78. In the applicant’s written response, she states in summary that:

• Lab Learning was cancelled when one of the children “went over the NDIS funding” and the service was not continued because the respondent did not want to pay for the service and the applicant could not afford the fees of $193.99 herself.

• Play therapy was cancelled by the respondent, because the play therapist was going on extended leave and it was agreed by an employee of the respondent and the play therapist that it was a natural progression to end the service.

• It was the applicant who had sought the child be referred to Oracle Psychology and it was the respondent who had decided the service not age appropriate and directed the child was place in play therapy instead.

79. I am not satisfied at this stage that the applicant is not compliant with the mediation requirements of the children. It is clear from the material that the applicant is a strong advocate of the children’s needs. There is some dispute between the applicant and respondent about the most appropriate services for the children. It will remain a matter for hearing to determine whether the applicant has indeed interfered with the services relation to the children. However, on the entirety of the evidence before me at this stage, I am not satisfied that any issues raised in relation to the general health and well-being of the children weigh against granting the interim order.

Promoting Growth and Development

80. The independent assessor report asserts that the applicant is inhibiting opportunities for the children.

81. The assessor notes that the applicant spoke at length about using the speech therapist as someone who can support one of the children’s emotional and mental health. The assessor states that:

Although they may inadvertently do this in speech therapy sessions, a speech therapist is not typically trained to offer counselling for specific trauma-related behaviours.

82. In relation to the other child, the applicant acknowledges she is hormonal and developing. The assessor states:

To support her with this, [the applicant] said she "bought her a book", and noted when [the child] found underarm hair, [the applicant] said, "She's cute with that". This is not only inappropriate, this language demonstrates little warmth and understanding during a crucial time of development.

83. The assessor concludes:

To her credit, [the applicant] has identified the importance and value of [the children] engaging in co-curricular activities such as soccer. She has supported [the children] to engage in various sporting activities and appeared to maintain consistency with this.

84. I am not satisfied that any issues raised by the respondent in relation to the growth and development of the children weigh against granting the interim order.

Promoting Belonging and Kinship

85. In the independent assessor report the assessor states that the applicant has breached the standards in relation to the following:

• Recognising and respecting that the children have rights to maintain relationships with their birth family where safe to do so. A child's connection to their birth family should extend beyond their parents.

• Recognising and respecting that the children have a right to maintain relationships with significant people in their life and their cultural communities, where safe to do so.

• Supporting relationships consistent with the children’s care plan, case plan and any relevant court orders.   

• Supporting the children to develop a positive sense of identity.

86. The assessor states that the applicant struggles and has a superficial understanding of Life Story Work, so that the children can develop a sense of belonging and kinship. The assessor refers to the applicant stating that the children are ‘naturally growing apart from their siblings’. The assessor concludes that, had the applicant been supportive and of the relevant relationships and the Life Story Work, she could have had many conversations with the children, to help them develop a strong connection and ultimately, sense of belonging. The assessor states:

[the applicant] was unable to provide the assessor with information about the children's connection to their birth family and ways that she promotes this in her home. The assessor does not argue [the applicant’s] claim, she is a strong advocate for the children's needs, in what she perceives is in their best interest. However, this has ultimately created a disservice to [the children]. For example, because [the children] have not asked about family, [the applicant] said she does not talk about them. Further she stated, "I don't know a lot about [..] side. I don't withhold anything from them", and said, "I've never had to explain anything to them because they didn't ask". These are only some examples to demonstrate [the applicant] lacks significant insight and understanding that her role as a carer is to support, encourage and promote discussions by researching information through relationships with Key Assets. [the applicant] often referred to [the children] as her own children, and although it is admirable she feels a strong connection with them, this has also likely interfered with her ability to support them to develop and maintain birth family relationships as well as a sense of overall identity and sense of self.

87. The assessor also asserts that the applicant’s language around family has also created distance and inadvertently perhaps, seems to have created fear and distance in the relationships of the children. The assessor notes:

[The applicant] did not demonstrate an understanding of healthy attachments and the importance of attachment. Her description of how she supported the children to settle, was to introduce them to every family member. The assessor expects this would have been quite an overwhelming experience for the children, who had just experienced disrupted attachments as they were removed from their mother's care. [The applicant] lacks understanding healthy attachment includes developing trust and independence. [The applicant] is of the view that because [the children] do not want to leave her side, this is a healthy attachment. She was unable to describe the impact of broken attachments and the value of developing positive relationships on [the children] sense of identity, belonging and wellbeing.

88. The assessor also notes that the applicant does not talk to the children about them being foster children, as she did not want the term "foster kids", attached to them, something she described as a negative stigma. The assessor notes:

Although foster care can carry negative connotations, [the applicant] had an opportunity to help [the children] develop a positive sense of self, by speaking positively of their connections to the foster care system.

89. In the applicant’s written response, she states that she has a privately monitored Facebook group which follows the children’s timeline from when they arrived with her until the present time. The page is a chronology of the children’s life story and is only shared with people that she knows. The applicant includes screenshots of the page and states it demonstrates an understanding of the Life Story Work. I am not certain that the Facebook page does demonstrate an understanding of Life Story Work or is an appropriate method of documenting Life Story Work, however that is not a matter at this stage which in my view would weigh against granting the interim order.

90. The applicant also includes screenshots from an iPhone messaging group titled “Sibling contact” in which the applicant messages carers of other siblings to organise contact and ensure they comply with the requirement to have six visits a year. Those messages do not support the assessor’s assertion that the applicant does not foster significant relationships and again I am not satisfied on the evidence, at present, that any issues of the issues raised by the assessor in relation to promoting belonging and kinship weigh against the making of the interim order.

Promoting culture

91. The independent assessor report states that the applicant was unable to provide the assessor with information about the promotion of culture in her home. The assessor identified the possibility that the children’s birth mother is Aboriginal and that the applicant was dismissive of this, because the birth mother had no proof of her Aboriginal heritage.

92. In the applicant’s written response, she states that the children were born in Australia, to Anglo Saxon parents and are not identified as Aboriginal or Torres Strait Islander and their birth mother did not provide any formal documentation to confirm her Aboriginal identity.

93. The applicant also included with her documents a series of Case Plan Reviews prepared by the respondent dating back to 2012. In each of the reviews, next to the question ‘Is the child/young person Aboriginal/Torres Strait Islander?’- it is marked ‘No’. Next to the question, ‘Is the child/young person from a culturally and linguistically diverse (CALD) background?’ - it is marked “No”. Next to ‘Cultural background”, sometimes ‘Australian’ appears and at other times ‘Anglo Saxon’ appears. While there are indications in those reports that the Life Story Work has not been adequate, there is no mention regarding the children’s connections as Aboriginal or Torres Strait Islander.

94. Whether the children indeed have Aboriginal connections, is a matter that clearly requires further investigation. However, it is difficult to see how the applicant can be criticised for not fostering Aboriginal connections in circumstances where the respondent has consistently not recognised them. On that basis, I am not satisfied that this is a matter which weighs against the granting of the interim order.

Promoting Skills for Life

95. In the independent assessor report, the assessor asserts that the applicant has inappropriate age-expectations of the children, resulting in the children being responsible for what appears to be all chores in the home. That assessor states that was also a concern also raised by the play therapist.

96. In the applicant’s written response, the applicant states that the children have age-appropriate chores, and they ask for chores to earn pocket money. The applicant states that she does not make the children do any chores if they feel strongly about it.

97. The DCJ Alternate Assessment Report does not detect issues in relation to the housework. I note that the three houses tool was completed with the children. The children stated that they felt safe at home. One of the children stated that the applicant:

‘yells a lot’ at home to clean her room and clean up and that [the applicant] uses profanity but has ‘worked on that’. [The child] assured that [the applicant] does not smack her or the other child.

98. Having considered the evidence, I am not satisfied those issues raised in relation to the chores, at present, weigh against the granting of the interim orders at this stage.

Promoting participation

99. In the independent assessor report it states that the applicant does not have the ability to work with professionals such as the respondent and to meet the care needs of children. The assessor asserts that the applicant isolates the children from vital supports and that the applicant has developed a history of hostile professional relationships. The assessor states:

Of significant concern is the potential for [the applicant] to work with Key Assets moving forward. She has demonstrated a pattern of hostile behaviour and although it is admirable, she will advocate for [the children's] needs, she clearly stated, "I will do things in their best interest, even if others disagree". [the applicant] has demonstrated this through her lack of communication with Key Assets as well as her disengaging [the children] from services. This has ultimately placed [the children] at risk, as identified in previous standards

100. It was put to the applicant at hearing that if the children were returned to her, whether she could continue to work with the respondent. She indicated that she did not think the respondent was a good case manager and would prefer to have a different case manager. It was made clear to the applicant that the Tribunal did not have the power to order a different case manager. The applicant understood, and stated that in those circumstances, she would work with the respondent and follow relevant instructions. I have also included conditions in the order, to remind the applicant of her obligations to work with the case manager.

101. The independent assessor report also states that the applicant and her ex-husband most likely lied to the respondent during their initial stages of authorisation. When they were assessed for suitability, they stated they were not actively trying to conceive children. However, within two months (and weeks of the children’s placement), the couple had undergone IVF. The applicant admitted she was having hormone injections at the time of children’s placement in their care. If the applicant was indeed dishonest, it was nearly 7 years ago and much has passed and changed in relation to the applicant’s relationship since that time. She is now divorced. While it may become a relevant in the review of the substantive decision, it is not a matter that in my view would weigh against the making of the interim order.

Other Issues raised by the Independent Assessor Report.

102. The assessor interviewed the applicant on four different occasions and states that throughout the course of the assessment interviews multiple inconsistencies became apparent. The assessor believes that the applicant has either not been candid in some discussions with the assessor or she has a skewed perception of reality. The assessor concludes:

It is therefore difficult to ascertain whether there is truth to any information received from [the applicant]. Although there are some areas where additional information would be valuable, the cumulation of concerns evident over a significant period of time, coupled with [the applicant’s] inability to demonstrate sustained change and her lack of insight in multiple areas have resulted in a number of breaches of the Carer's Code of Conduct. The assessor questions [the applicant’s] credibility, ability to create and sustain change and prioritise the needs of the children in her care. Because of this as well as the multiple breaches of the Carer's Code of Conduct and concerns identified, [the applicant’s] suitability as a foster carer is problematic.

Alternate Assessment - DCJ

103. As discussed above, the respondent also included an alternate assessment which had been completed by DCJ on 27 October 2022. In the relation to both children it was notes that:

[the child] has been determined to be safe in [the] current household. There was no immediate dangers that were identified and as such, safety planning did not occur.

104. The report also concluded:

It has been determined that [the child] is safe to remain with [the applicant] at this time.

105. The report also states:

There are concerns in relation to the potential emotional and psychological harm that the children may be experiencing, and risk of medical neglect. Throughout this assessment it has been identified that [the applicant] has impacted on the children's engagement with play therapy which has left [the child] only engaging with speech therapy, and [the other child] not engaging with any supports. [The applicant] identified that she advocated for [the other child] to engage with a psychologist following play therapy ending which is a positive step for her to take, though this was declined by Key Assets. It is recommended that suitable alternative options be explored to re-engage [the other child] with therapeutic supports. The concern in relation to [the applicant] though is that of [the applicant’s] behaviours impacting on play therapy and not supporting [the child] to engage with medical recommendations such as psychological support and occupational therapy. [The applicant] identified that she spoke with other professionals who agreed that [the child] would be overwhelmed with additional supports, however the decisions not to engage him were made in isolation, and not with Key Assets.

106. Finally, the report notes that the respondent had arranged for a carer review by an external service and that DCJ will assess the outcome of that review and any recommendations made.

Public Interest

107. Neither party made any submissions as to where the public interest lies.

108. In The Secretary, Department of Family and Community Services v Allana Pearl Smith [2016] NSWSC 1384 at [30] Brereton J observed,

there is considerable public interest in the welfare of children in out-of-home care.

109. I note that the DCJ Alternate Assessment Report specifically states that there is no indication of physical harm being caused to the children or their physical needs not being met. I note that there are some allegations in relation to potential emotional and psychological harm that the children may be experiencing and risk of medical neglect. The concerns in general are classified overall as moderate.

110. The applicant is seeing a professional in relation to her mental health and discloses in her written response that she has tried to access current training and asked Helen (an employee of the respondent) for access to the training on Wednesday 19 October and was advised by Helen that ‘she did not know how to get into training for me and that she would get back to me. She has not yet got back to me about any training sites.’ The applicant has also provided an attachment which suggests that the training system is not working.

111. The applicant has been the most significant person in the life of the children and both children call the applicant ‘mum’. I find that the removal of the children from the applicant’s care has potential for emotional and psychological harm for both the applicant and the children. The respondent included in the bundle of documents they provided, various notes relating to the respondent’s contact with the present carer of the children. In notes dated 15 December 2022, a telephone call was made to the current carer to check on how the children had settled after the first night:

[Redacted] told SSW that [the children] have some questions around the removal. [Redacted] said they have said ‘I don’t know why?’, we have everything we need?’ and ‘maybe it is because we leave the gate open sometimes”

112. In another Home Visit Record, dated 20 December 2022, a representative for the respondent (SSW) attended the home and it is noted (I have referred to the children the subject of these proceedings as child 1 and child 2):

[Redacted] told SSW that there has been a lot of fights today and that was upsetting. [Child 1] then told SSW that earlier in the day, [Redacted] hit [child 2], so [child 2] sprayed him with water. SSW asked [Redacted] if he thinks that is nice for him to hit [child 2]. [Child 1] encouraged [Redacted] to hit a pillow instead. [Redacted] said that it isn’t the same as hitting a person and then walked away.

113. While, this evidence has not been tested at this stage, the notes reveal the children are experiencing some concerning disruption at the new placement.

114. I accept that there will also be likely some initial disruption and confusion to the children, in moving the children back to the care of the applicant, given the removal of the children to a new placement only 8 days ago. However, this is likely to be outweighed by the benefits to the children living with the person they regard as their mother.

Conclusion

115. Having considered the interests of the persons who may be affected by the determination of the application, the submissions made by the parties and the public interest, I consider it desirable and appropriate to make the interim order (with conditions), to secure the effectiveness of the determination of the application for review.

116. The parties had advised at the hearing that a meeting was already scheduled for the applicant to meet with the children at 4pm on the same day as the hearing. For that reason, I made the order for the return the children at 4pm.

117. I was also mindful that the substantive review matter should proceed expeditiously and made orders for the matter to be listed for further directions.

Orders

118. I make the following orders:

1. The application for administrative review of the respondent’s decision, made on 14 December 2022, to remove children from the applicant’s care is to be dealt with by the Tribunal, notwithstanding that the applicant has not applied for internal review of the decision.

2. The application for an interim order that the children be returned to the care of the applicant is granted subject to the following conditions:

1. The applicant will ensure that all media devices in the home have protection installed to prevent the children from accessing pornography.

2. The applicant is to regularly monitor media devices in the home for access to pornography, that may have occurred by either child, and report any instances of access found to the respondent immediately.

3. The applicant will work with Key Assets in a manner that is respectful and comply with her obligations under the Carers Code of Conduct.

4. The applicant, will at all times, provide a home that is safe, clean and comfortable and meets the needs of the children.

5. The applicant will provide information to the respondent about the children’s well-being, including issues that may arise about their development, health, behaviour and educational progress as required under the Code of Conduct or when requested by the respondent.

6. The applicant will allow in-home visits by the respondents when requested by the respondent.

7. The applicant will follow the directives of the respondent in relation to medical, educational and therapy interventions for the children.

8. The applicant will follow the directives of the respondent regarding connection with the children's birth parents and significant others and promote and foster those connections.

9. The applicant is not to speak disrespectfully or denigrate the respondent, the birth parents or significant others in the presence of the children.

3. The respondent is to arrange for the children to be returned to the care of the applicant by 4pm on 22 December 2022.

4. The publication or broadcast of the name of the children and the applicant is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

Note: 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.

Note: Either party may approach the Registry with a miscellaneous application to vary or revoke the interim order.

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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: 17 January 2023