FQT v Key Assets (No 2)
[2022] NSWCATAD 417
•23 December 2022
Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: FQT v Key Assets (No 2) [2022] NSWCATAD 417 Hearing dates: 23 December 2022 Date of orders: 23 December 2022 Decision date: 23 December 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: T Simon, Principal Member Decision: (1) The application by Key Assets to revoke the orders made by the Tribunal on 22 December 2022 is dismissed.
(2) The time for Key Assets to comply with direction 3 made by the Tribunal on 22 December 2022 is extended to 7pm on 23 December 2022.
(3) On finding that these proceedings significantly affect children, namely [the children], it is hereby ordered under s 45(4A) (b) of the Civil and Administrative Tribunal Act 2013 that [the children] be separately represented.
Note: The Registrar will request that Legal Aid New South Wales provide a separate representative for [the children]
(4) The Registry is to notify the Secretary, Department of Communities and Justice, of these proceedings and provide to them a copy of the applications and orders made to date. The Secretary, Department of Communities and Justice, is to advise the Tribunal and the parties, in writing, by 10 January 2023, of the Secretary's views to being joined as a party.
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: FQT v Key Assets (No 1) [2022] NSWCATAD 416
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
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On 22 December 2022 I made an interim order, for two children to be returned to the applicant by 4pm that day: FQT v Key Assets (No 1) [2022] NSWCATAD 416. These reasons should be read in conjunction with the reasons in FQT v Key Assets (No 1).
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At 5.45pm on 22 December 2022, the respondent’s solicitor sent an email to the Registry with an application for miscellaneous matters and a supporting affidavit from Trent Bennison who is the Social Work Team Manager employed by the respondent. The respondent was seeking orders for the revocation of the interim order I had made. The basis of the miscellaneous application was that the respondent had not been able to implement the order to return the children because the children had refused to return.
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The email from the respondent’s solicitor had only come to the Registry’s attention after it was forwarded in an email response from the applicant. It later transpired that the respondent’s legal representative had been having issues with her emails getting through to the Registry email. In any case, the matter was listed for urgent hearing of the miscellaneous application, and I made a decision refusing the application to revoke the interim order and extended the time by which the children were to be returned to the care of the applicant. I also made directions for the Secretary, Department of Communities and Justice (DCJ) to be notified of these proceedings as the Minister for Families and Communities, Disability Services presently has parental responsibility for the children. Finally, I have ordered, that that the children be separately represented. I told the parties at the time of delivering the decision that written reasons for the decision would follow.
Revoking the interim order
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Section 60 (4) of the Administrative Decisions Review Act 1997 (NSW) allows the Tribunal, on application by a party to the proceedings, to vary or revoke an interim order by making another order. At the time of making the orders in FQT v Key Assets (No 1), I had also made a notation that either party could approach the Registry with a miscellaneous application to vary or revoke the interim order.
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The respondent’s legal representative and Mr Bennison appeared at the hearing, as did the applicant.
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Mr Bennison has completed a Bachelor of Social Work. In relation to the return of the children, Mr Bennison relevantly stated in his affidavit:
10. I spoke to the children's carer, after speaking to the children and advised her that the children had told us that they did not want to go to [the applicant].
11. When I was present at the children's placement, I observed them to be happy, relaxed and at times, jovial. The children were watching Boss Baby on TV and this was paused while we spoke to them.
12. On 22 December 2022, I phoned [the applicant] via phone on at about 4:01pm and advised her that the children were refusing to return home. I acknowledged that the relationship between Key Assets and herself was difficult. I said that I had spoken to the children in an honest and fair way and that we could not force them to return against their will. I said that we would inform the Tribunal so they are aware of what has happened.
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Mr Bennison attended with another employee of the respondent who took notes of the discussion with the children. A copy of the notes (hand-written and typed) was provided with the affidavit. It was clarified at the hearing that there were some minor differences between the hand-written and typed notes, however they are not of any significance to deciding whether to revoke the interim orders. It is useful to set out those notes of the conversation that Mr Bennison (TB) and the other worker (MM) had with the children. I have referred to the two children the subject of this application as C1 and C2. Child 3 is another child with whom the children are currently living in their current placement.
TB - We are here to have another difficult conversation, but I want you guys to know you can tell me what you want, we are here to find out what you want
TB - what do you like about living at [the carer’s]
C1 - everything but [child 3], he hits kicks, screams
C2 - everything
[current carer] - came into room and she and Trent reminded [the children] that [child 3’s] age is 7 but developmentally he is more like 4 or 5
TB - what do you like about [the applicant’s]
C1 - always get what we wanted, I would just have to give mum a certain look at the shops, and I would get what I wanted. I like [redacted] and the dogs and cats
C2 - Just everything, cat
TB - Is there anything you didn't like about living at mum's
C2- not really
C1 - not really
TB - what have been your biggest worries the past week
C1 - nothing really, nothing worried me before. I’m worried about not seeing the dogs again
TB - you know you can see them again
TB - is there anyone that you used to see that you want to see again
C1 - no, just [redacted], my cousin. He lives near [current carer]
TB - do you feel like moving to [the current carer’s] was for the best
C1 - don't know
C2 - don't know
TB - if you could live here, with mum or anywhere else, where would you go
C1- don't know
C2 - probably here, happy to have a roof over my head and food. Where else would we go
TB - I don't know, I thought you might have said dad
C2 - not dad
C1 & C2 (spoke about the amount of people living in the house and it being squishy)
TB - if you could think of any worries about living at mum’s
C2 - no answer
C1 - no answer
TB - we had some worries about you seeing play therapy and Rip It Up Reading
C1 - like the times where Helen and Mum spoke about me needing speech therapy, I know that I need it but mum said I didn't need it
TB - Can I ask again to make sure I am clear. If could live here, back with mum or anywhere else where would you want to live
C2- here
C1 - don't know
TB - we have been told we have to see if you want to go back to mum’s
C1 - i want to stay here for a few weeks to see if I like it
TB - do you want to see mum today
C2 - no
C1- no
TB - are you missing her?
C2 - not really
C1 -a little bit
TB - have you noticed a difference in how you are feeling since coming to [current carer's] because people have noticed a difference. For example you being more talkative and more relaxed
C2 - yeh, we have noticed
C1 - Yeh
TB – [Redacted] has noticed you were more relaxed even when [Redacted] was out here for her visit, you were really good
MM - like [child 2] how you opened the door for me and helped me upstairs with the presents and [child 1] you didn't take your roller-skates off and tried to come down stairs in them
C2 & C1 - laughed
MT-what do you have planned for new year
C1 - we are starting our new school (observation, she was elated and smiling)
TB - there is a visit this afternoon, mum may have presents for you at the visit
C2 - she does but still don't want to go. My RC car is in mum's cupboard
MM - I have a list of what you want from mum’s
TB - can you tell me why we came here today
C1 - around safety
TB - also the three options
C2 - to live here, to live with mum or somewhere else
TB - I need to go and talk to my boss about your decisions
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Mr Bennison indicated that the other employee that was with him had only recently graduated from social work and was new to the note taking and had felt very stressed by the events. I asked Mr Bennison at the hearing why he had not explained to the children that the Tribunal had ordered the return of the children. Mr Bennison explained that the children would not understand what a Tribunal was, and he would not be that direct with the children. Mr Bennison has been present when the children were collected from school on 14 December 2022, to be moved to their new placement. I asked Mr Bennison what the children had been told about their removal on that occasion. Mr Bennison indicated that as part of a wider conversation, the children had been told it was not safe to go back to their home and they were being moved to the new placement.
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The notes demonstrate that one of the children initially indicated that she likes everything about living with the applicant and the other child still calls the applicant his mum and is missing seeing the dogs. Both children initially state that there is nothing that they don’t like about living at the applicant. One of the children expresses concerns about child 3 kicking and screaming. I note that no further questions are asked of the children in that regard and the children are reminded that child 3’s age is 7 but developmentally he is more like 4 or 5. Further both children did not articulate any worries about living with the applicant. It is unclear why Mr Bennison needed to tell the children, in the circumstances of complying with the orders to return the children, that the respondent has worries about play therapy and Rip It Up Reading.
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The notes must be read in the context of the children’s sudden removal a little over a week earlier on 14 December 2022. The children would not have been expecting to be collected by the respondent’s employees after school and told they were being moved elsewhere. In the context of those events, I am not satisfied that the notes demonstrate that the children were refusing to return home on 22 December 2022. The children have been in the care of the applicant for 7 years and since a very early age. There is no doubt that the children would be experiencing significant confusion around the recent events and about what they had been told about the reasons for their removal.
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After a series of questions, the children answer ‘no’ when asked if they wanted to see their mum ‘today’, but, in my view, I do not find that amounts to a refusal to return home. I accept that the views of the children are important, however the ultimate decision about what is in the children’s best interest and where is best for them to live, is not only informed by what the children say. Having considered the evidence, I am not satisfied to revoke the interim order. I have extended the order for the return of the children until 7pm to allow for the time required to collect the children as they are some distance away.
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Also, as the Minister for Families and Communities, Disability Services presently has parental responsibility for the children, I have made orders for DCJ to be notified of the proceedings and their views on being joined as a party. I am also satisfied that as these proceedings significantly affect children, an order should be made for a separate representative to be appointed for the children moving forward. Neither party objected to those orders.
Orders
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I make the following orders:
The application by Key Assets to revoke the orders made by the Tribunal on 22 December 2022 is dismissed.
The time for Key Assets to comply with direction 3 made by the Tribunal on 22 December 2022 is extended to 7pm on 23 December 2022.
On finding that these proceedings significantly affect children, namely [the children], it is hereby ordered under s 45(4A)(b) of the Civil and Administrative Tribunal Act 2013 that [the children] be separately represented.
Note: The Registrar will request that Legal Aid New South Wales provide a separate representative for [the children]
The Registry is to notify the Secretary, Department of Communities and Justice, of these proceedings and provide to them a copy of the applications and orders made to date. The Secretary, Department of Communities and Justice, is to advise the Tribunal and the parties, in writing, by 10 January 2023, of the Secretary's views to being joined as a party.
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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
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