Fye and Fza v Secretary, Department of Communities and Justice

[2024] NSWCATAD 94

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FYE and FZA v Secretary, Department of Communities and Justice [2024] NSWCATAD 94

Hearing dates:

16 February 2024

Date of orders:

10 April 2024

Decision date:

10 April 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Anderson, Senior Member
S Davison, General Member

Decision:

The decision made on 27 April 2023 to revoke the authorisation of the Applicants as carers for the kinship care of their grandson is upheld and affirmed as the correct and preferable decision.

Catchwords:

ADMINISTRATIVE LAW — provisional authorisation as kinship carers — cancellation of authorisation — best interests of child

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

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

Children and Young Persons (Care and Protection) Amendment (Family is Culture) Act 2022 No 67 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

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

Children and Young Persons (Care and Protection) Regulation 2022 (NSW)

Cases Cited:

AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028

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

Texts Cited:

Nil

Category:

Principal judgment

Parties:

FYE (First Applicant)
FZA (Second Applicant)
Secretary, Department of Communities and Justice (Respondent)

Representation:

Solicitors:
Gonzalez and Co (Applicants)
A Wood (Department of Communities and Justice) (Respondent)

File Number(s):

2023/00255749

Publication restriction:

Pursuant to section 65 of the Civil and Administrative Tribunal Act 2013 and section 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW), there is to be no publication or broadcast of any evidence or material without the consent of the Tribunal that identifies or is likely to lead to the identification of the Applicants, any witness, or any children named in these proceedings. Note that a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Introduction

1. The applicants who are anonymised by the initials FYE and FZA, in accordance with the nonpublication provisions of s 65 of the Civil and Administrative Tribunal Act2013 (NSW), were provisionally authorised as carers for their grandson who was placed in their care on 30 January 2020. On 15 April 2020 the applicants were authorised as relative kinship carers for their grandson. At the time the “Code of Conduct for Authorised Carers” (Code of Conduct) was read by the caseworker with the carers and each section was explained in detail. They said that they understood their responsibilities as carers and would adhere to the conduct and signed an acknowledgment of being given the written Code of Conduct.

2. The grandson was approximately nine months of age when he was placed with his grandparents. On 18 August 2020 the grandson was placed under the parental responsibility of the Minister in accordance with orders made by the Parramatta Children’s Court. Accordingly, there is also a statutory nonpublication provision applicable to the identification of the grandson by reason of s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW).

3. The grandson’s father is deceased. The Children’s Court determined that there is no realistic possibility of restoration of the child to the care of his mother when orders were pronounced on 18 August 2020. There are no proceedings in the Children’s Court in relation to the grandson’s future care.

4. On 27 April 2023 a relevant delegate of the Secretary of the Department of Communities and Justice (Secretary) decided to cancel the authorisations of the grandparents. The grandson was then moved to live with his aunt and uncle, and his brother who lives with them. The grandmother was orally informed of this at a meeting held with her on that date and provided with a letter said to have “differentiated language”. Presumably, that meant it was supposed to be easier to understand. The child was informed of this decision at the home of the applicants. On that day the grandson left their home to reside with his other relatives after packing his things and saying goodbye.

5. On 5 May 2023 the applicants sought an internal review of the decision.

6. On 10 July 2023 the internal review was completed and it affirmed the decision to cancel the applicants’ authorisation.

7. On 10 August 2023 the applicants filed an application for Administrative Review in the Tribunal. The applicants claim that the decision was “irresponsible and illogical”. The applicants “categorically refute any and all allegations put forward by DCJ” and “feel [the decisions] are not in the best interests of the child”.

8. The grandparents consider that their grandson is better off in their care. As referred to earlier in these reasons their grandson is under the parental responsibility of the Minister until the age of 18. This means that the Minister has the power and responsibility to determine where, and with whom, he lives.

9. The Secretary agreed that if the Tribunal finds that the decision to cancel the applicants’ authorisation is not the correct and preferable decision, then the relevant decision that should be the subject of administrative review would, consequentially, be the decision to remove the grandson from the day-to-day care and responsibility of the applicants.

10. For the reasons which follow the Tribunal considers that the evidence supports the decision to cancel the authorisations and, to the extent that it is necessary to consider, that the grandson is now better placed with his other relatives and that arrangement should remain undisturbed.

Legislative Context

11. The Tribunal may hear an administrative review of decisions made by a “relevant decision-maker” if it is a decision referred to in section 245 of the Children and Young Persons (Care and Protection) Act1998 (NSW) for the purposes of section 28(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW).

12. The paramount principle in any action or decision under any provision of the legislation concerning a particular child is the safety, welfare and well-being of the child: section 9(1) of the Children and Young Persons (Care and Protection) Act 1998 (NSW).

13. The Tribunal is required to determine what “the correct and preferable decision is having regard to the material then before it” including material which may not have been before the Challenge Community Services decision maker: section 63 of the Administrative Decisions Review Act 1997 (NSW); YG v GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].

14. In this matter it is an accepted fact that the Secretary, Department of Communities and Justice is the relevant decision maker.

15. The Children and Young Persons (Care and Protection) Act1998 was amended in 2022 by the Children and Young Persons (Care and Protection) Amendment (Family is Culture) Act 2022 No 67 (NSW) by the insertion of a new subsection 245(1)(a1), which for the purposes of this review, added the relevant decision to those which are administratively reviewable.

16. The administratively reviewable decision to be considered is one which is principally described by subsection 245(1)(a1) of the Children and Young Persons (Care and Protection)Act as amended, and the other relevant subsections provide:

245 Decisions that are administratively reviewable by Civil and Administrative Tribunal

…

(a1) a decision of the relevant decision-maker to—

(i) suspend a person’s authorisation as an authorised carer, or

(ii) impose conditions on a person’s authorisation as an authorised carer,

(b) a decision of the relevant decision-maker to cancel a person’s authorisation as an authorised carer, other than a decision to—

(i) cancel an authorisation granted on a provisional basis, or

(ii) cancel an authorisation on the occurrence of an event prescribed under section 137(2)(e),

(c) a decision of the relevant decision-maker to grant to, or to remove from, an authorised carer the responsibility for the daily care and control of the child or young person,

…

17. The definition of an authorised carer is contained in s 137 the Children and Young Persons (Care and Protection)Act as follows:

137 Authorised carers

(1) In this Act, authorised carer means—

(a) the principal officer of a designated agency, or

(b) a person who, in accordance with the regulations, is authorised as an authorised carer by a designated agency, or

(c) a person who, in accordance with the regulations, is otherwise authorised as an authorised carer, or

(d) subject to the regulations, a person who is assessed to be suitable to be approved to adopt a child under section 45 of the Adoption Act 2000.

…

18. The objects of Chapter 8 of the Children and Young Persons (Care and Protection) Act are relevant to out of home care by an authorised carer and state at s 134:

134 Objects of this Chapter

The objects of this Chapter are—

(a) to create a high standard in the provision of out-of-home care, and

(b) to provide a model for the organisation of out-of-home care, and

(c) to clarify the roles and responsibilities of those involved in the provision of out-of-home care.

19. The cancellation or suspension of authorisation in relation to out of home care is set out in clause 35 of the Children and Young Persons (Care and Protection) Regulation 2022 (NSW):

A designated agency may, by written notice, cancel or suspend the authorisation of an authorised carer if, in the agency’s opinion, the authorised carer—

(a) is no longer a suitable person to be an authorised carer, or

(b) has failed to—

(i) comply with a condition of the authorisation, or

(ii) comply with a condition or requirement imposed on the authorised carer by the Act or this Regulation, or

(iii) comply with a written direction to the authorised carer given by the designated agency or the Children’s Guardian under the Act, section 157(3), or

(iv) uphold the Charter of Rights prepared by the Minister under the Act, section 162.

20. Jurisdiction arises in the Tribunal, as Justice Campbell observed in a matter before him which required consideration of the legislation which gave jurisdiction to the then Administrative Decisions Tribunal in 2013, but now exercised by this Tribunal, in AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028 at [20]:

“As I have said, in the exercise of the statutory powers arising from sole parental responsibility, the Director-General decided not to grant daily care and control to the second defendants. The key provision that confers the Tribunal’s jurisdiction in the present matter is s245 of the Act. So far as relevant, it provides:

(1) For the purposes of section 28 (1) (a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993, any of the following decisions made under or for the purposes of this Act or the regulations are reviewable by the Administrative Decisions Tribunal:

...

(c) a decision of the relevant decision-maker to grant to, or to remove from, an authorised carer the responsibility for the daily care and control of the child or young person

...

(1B) For the avoidance of doubt, subsection (1) (c) does not extend to any decision in relation to:

(a) the preparation of a permanency plan, or

(b) the enforcement of a permanency plan that has been embodied in, or approved by, an order or orders of the Children’s Court.

(2) In this section, relevant decision-maker, in relation to a decision, means the person or body authorised by or under this Act or the regulations to make the decision, not being the Children’s Court.”

21. The decision made on 27 April 2023 has been internally reviewed and the application to the Tribunal is permitted by operation of section 55(3) of the Administrative Decisions Review Act1997 (NSW).

22. The administrative review does not affect the previous orders of the Children’s Court and is not a revisiting of that decision. The administrative review concerns the authorisation suspension or cancellation on 27 April 2023. If the Tribunal were to be satisfied that the decision should be set aside then the decision to remove the grandson from the day-to-day care of the applicants is a reviewable decision by reason of section 245(1)(c) of the Children and Young Persons (Care and Protection)Act.

23. If the Tribunal is satisfied that the decision to cancel the authorisation of the applicants should stand, the question of the applicants having day to day care of their grandson is not a matter to be determined by the Tribunal. Unless the applicants are authorised carers, they are not legally able to have the day-to-day care of their grandson because of section 136 of the Children and Young Persons (Care and Protection)Act.

Evidence and submissions

24. The documents relied upon, and which were exhibited during the hearing, are:

1. Application and supporting evidence filed 10 August 2023: Exhibit 1;

2. Section 58 Administrative Decisions Review Act 1997 (NSW) bundle of documents filed 18 September 2023L Exhibit 2;

3. Affidavit of Caseworker CS affirmed 2 November 2023 and filed 3 November 2023: Exhibit 3;

4. Affidavit of Caseworker CS affirmed 30 November 2023 and filed 30 November 2023: Exhibit 4;

5. Affidavit of Caseworker CS affirmed 15 February 2024 and filed 15 February 2024: Exhibit 5;

6. Bundle of documents of 14 pages provided and filed in the Tribunal on 16 February 2024: Exhibit 6;

7. Written submissions of applicants’ lawyer 1 December 2023: Exhibit 7;

8. Written submissions of respondent’s lawyer 7 December 2023 which annexes the acknowledgments of receipt of the Code of Conduct signed by both applicants: Exhibit 8;

9. Photos of the child’s room prior to the reviewable decision and a Facebook picture allegedly of the child’s current bedroom: Exhibit 9;

25. There was also oral evidence from the applicants, the child’s caseworker, and the manager casework.

26. The applicants, in summary, contend that allegations made in the documents are not correct and they dispute that they are not fit and proper carers or that they lack insight into the issues raised.

27. The Tribunal has been provided with a large volume of documents which set out the increasing concerns about the applicants’ care of their grandson. Because a document is not mentioned in these reasons does not mean that it was not considered by the Tribunal. The Tribunal has referred to the documents as necessary to ground the factual matters in so far as they may be contentious. The applicants’ documentary material and oral evidence has been fully considered even if it is not specifically mentioned in these reasons. The oral and written submissions by the applicants’ lawyer have been considered and taken into account in determining the matters raised.

Consideration of the evidence

28. During 2019 the Secretary received risk of significant harm (ROSH) reports in relation to their grandson, the child of the applicants’ adult daughter. The mother was under the care of the Public Guardian due to her chromosomal abnormality which led to reports of her having a severe behavioural disorder and she could become angry very quickly. The father was reported to be using illicit substances and had made threats of harm to both the mother and the child.

29. Significantly the applicants had provided care to their daughter and grandson prior to the commencement of proceedings in the Children’s Court. In early 2020 the applicants asked the mother and father to leave their home following ongoing arguments with the father. The grandmother reported that the father threatened the grandmother to “burn me, burn my car, and burn [my grandson].”

30. It was decided by the Secretary that the applicants’ grandson was at immediate risk of harm in the care of his parents due to ongoing exposure to domestic and family violence, and concerns that the mother’s cognitive functioning impaired her ability to meet the immediate needs of her son. The grandmother was then provisionally authorised to care for her grandson on 30 January 2020.

31. Following upon the completion of the Provisional Authorisation Assessment and probity checks to determine the suitability for the grandparents to provide care for their grandson, a letter was provided on 9 March 2020 giving the provisional authorisation advice.

32. The assessment noted significant matters which were:

1. It was understood the reasons for the grandson coming into the care of the Secretary and subject to Court process;

2. While there was not a good relationship between the grandparents and the father, they were supportive of paternal family contact;

3. Concerns were raised about the cleanliness and state of the home environment so much so that the grandmother and the child were placed in a hotel overnight while the home was cleaned and there was a commitment to keep the home clean, uncluttered and free from animals;

4. Domestic violence had been present in the home during a prior time of stress in the applicants’ relationship, however the grandfather engaged in Men’s Behaviour Change Counselling which he found beneficial and he understood the impact on their younger daughter, who lived with them. Their daughter is the aunt of their grandson and was 12 years old when he was initially placed in their care.

Casework

33. The evidence is that there was initially casework support by monthly home visits, respite, therapy, and transport to family time arrangements by the caseworkers.

34. On 20 November 2020 caseworkers attended the residence of the grandparents to discuss concerns with respect to unauthorised family time (with the child’s mother) and the cleanliness of the home. The following was discussed:

1. An anonymous text message had been received that the grandmother had allowed the mother to care for the grandson while she “played on the pokies”;

2. the grandmother explained that she was not at the “pokies” and that the grandson had been in the care of the aunt while she was at a medical appointment, and she had run into the mother in the community;

3. the grandmother was informed there was concern about the state of the home and caseworkers indicated that pest control would be necessary;

4. the grandmother was reminded that it was important to keep the home clean and hygienic;

5. improvements were observed to the cleanliness of the home since the last visit two weeks prior to that visit;

6. the house was less malodorous than the previous visit.

35. On 9 December 2020 a home visit was completed, and it was noted that:

1. caseworkers raised concerns for the small cockroaches in the home. The grandmother said that she had treated the home for pests but it had not worked. Further pest control was organised by the caseworkers.

2. concerns were raised for the overall cleanliness of the home and the grandmother advised caseworkers that she was trying to keep on top of the cleaning.

36. In further home visits during 2021 it was observed that there was a connection between the grandson, his grandmother and his aunt. The grandson was also spending family time with his mother, father and paternal aunt. Concerns were raised again about the cleanliness of the home, and it was noted that the home is a rundown old housing department home, and the grandmother had made significant progress cleaning the home. It was noted that the grandmother required a new fridge and was to clean the lounge room further.

37. In March 2021 two ROSH reports were received by the Secretary relating to the child’s aunt, who was living in the household and her 30% school attendance rate, and an alleged threat to an animal welfare officer by the grandmother to the effect that she would get her “13-year-old grandchild bash them if they didn’t go away.” The grandson was not present during the alleged threat. The Safety and Risk Assessment (SARA) team raised concerns that the grandmother “…has a history of verbally abusing other staff from other organisations such as Centrelink, hospital staff and doctors. DCJ hold concerns about the psychological impact that [her] behaviour may have on [the grandson] if he is present during these incidents.”

36. The school attendance of the young aunt in the home was a matter which was considered not relevant to the care of the grandson. The applicants were concerned that it was raised to harm their reputation, but it is apparent that it was not a factor in the ultimate decision concerning their grandson.

37. On 31 March 2021 caseworkers attended the home to conduct a safety in care assessment due to two reports received during March 2021. The grandmother admitted that she had threatened an animal welfare officer, stating she was angry that they had taken away her daughter’s dog. The grandmother stated that she thought she was being targeted by animal welfare. It was explained by the caseworker that the impact of an incident like this, if her grandson had been exposed to it, would have been cumulative to the trauma that he was exposed to in his parents’ care, and he should not be exposed to violence or aggression in her care. The grandmother acknowledged this and said that she would not have reacted like that if her grandson had been present.

38. On 21 March 2022 there was a Family Group Conference (FGC) between the grandmother and the paternal family to discuss contact between the grandson and his paternal family.

39. On 21 April 2022 the Carer Annual Review raised concerns about:

1. the less than acceptable cleanliness and cluttered state of the home;

2. the reluctance of the grandparents to schedule family time with the paternal family in accordance with the case plan;

3. lack of insight then exhibited by the grandmother as to why the grandson was brought into care and why the mother could not reside in their home despite her prior acknowledgement of the reasons; and

4. training to assist with the grandmother to meet the grandson’s needs.

42. Due to concerns about the grandmother’s basic literacy skills, and later it was considered more likely related to her cognitive functioning, it was determined that one-on-one training would be most appropriate. The process was to be reviewed in 3 months’ time.

43. A further FGC was scheduled and a referral for Functional Family Therapy was made. During the meeting with FFT the following was discussed:

1. the grandparents had been spoken to about the referral and were happy to participate in the programme;

2. the work with the family for the last few years on some identified concerns, particularly around the cleanliness of the grandson’s care environment;

3. on the night the grandson was taken into care a hotel room was organised for the grandmother and child to stay in as there were concerns around the state of the home and its inappropriateness for a child; and

4. since the authorisation the grandparents required additional assistance to manage the state of their home and maintain its cleanliness.

44. There were additional home visits which are recorded in more detail in the section 58 documents (Exhibit 2).

45. In 2022, at a group supervision session to discuss concerns raised in the Annual Carer Review commenced in April 2022, it was discussed that the persistent theme of the lack of cleanliness of the home had an impact on the grandson in the context of cumulative harm. There was a referral made to FFT, trauma training for the grandmother, and conversations with the grandfather around his role in the home. Home visits continued fortnightly between 30 May 2022 and 15 September 2022. A Carer Support Plan was developed to assist the grandparents to work through the identified concerns with the placement and the grandparents agreed to participate to develop and improve their skills.

46. A skip bin was provided by the caseworkers to assist with the removal of clutter and rubbish.

47. Then, in October 2022, a parenting capacity assessment of the grandparents was undertaken by a Social Worker and Therapeutic Life Story Practitioner. The purpose of the assessment was to assess the impact of the concerns which had been identified, and had been ongoing, on the grandson’s needs and his long-term development. The assessment acknowledged that there was no immediate risk issues requiring the change in placement urgently, and noted that the grandparents provided commitment, love and care for their grandson to the best of their ability. However, there were identified areas of concern.

48. Those concerns were identified as:

1. impact of generational trauma and its compounding effect on cognitive functioning for the grandmother and subsequently for the grandson;

2. the grandmother’s relationship with her own children and the tensions that existed;

3. the deterioration of the grandmother’s relationship with her daughter when her daughter took on the care of the grandson’s sibling and the narrative that the grandson is exposed to about his auntie because of the grandmother’s own negative feelings and reflections towards her;

4. the grandmother’s continuing narrative that the grandson should be restored to his mother’s care and her insistence that she was not aware of the reasons for his entry into care despite historically expressing concerns about the mother’s parenting and having repeated discussions with case workers about the reasons that informed his entry into care;

5. the impact of the grandmother’s view of restoration to the mother has on her ability to create and sustain a narrative for the grandson that focuses on permanency and security of placement and belonging with her and her husband;

6. intersection between the grandmother’s repeated questioning regarding the likelihood of restoration to the mother and her own cognitive functioning and ability to process and then apply that information; and

7. maternal and paternal family tensions that may well serve, over time, to limit the grandson’s ability to develop a sense of belonging to his paternal family.

49. The recommendations which were made included cognitive functioning assessment of the grandmother, a referral to parenting courses that are relevant to the grandson’s developmental needs, and intensive family counselling to mitigate the conflict between the grandmother and her daughters.

50. It is apparent from the evidentiary material provided that between 2020 and 2023 the caseworkers had been working with the applicants to address the concerns which had been identified. There was some progress during stages of the intervention but, in the longer term, the minimal gains were not assessed as sufficient.

51. On 15 March 2023 a Group Supervision meeting was held with a number of persons including the Manager Client Services, Manager Casework, multiple Caseworkers, carer support, Functional Family Therapy, Casework Specialists and the Aboriginal Permanency Coordinator. The outcome from this meeting was that there needed to be an alternative placement for the grandson due to the cumulative harm to which the grandparents’ care environment exposed him, and the potential negative impact it made upon his sense of stability and security.

52. The level of support required by, and offered to, the grandparents to ensure that their grandson’s living environment was safe, clean and hygienic, was substantial and considered to be more than should have been required for authorised carers. There were repeated discussions about maintaining routines and consistency in cleanliness and decluttering to enable the grandson to enjoy his own space free from clutter and hygienic.

53. Additionally, it was considered that the grandmother’s rhetoric around restoration of her grandson to his mother’s care in circumstances that did not support this permanency goal, or were unlikely to change, were concerning and indicative of the grandmother’s inability to properly identify and process or understand risk to her grandson. There were discussions between the grandmother in front of, and with, the grandson in relation to restoration to his mother’s care. The grandmother had been educated on the potentially destabilising and confusing impact these discussions could have on her grandson, however she persisted in her narrative, stating that he wanted to return to his mother’s care and should be allowed to do so. It was not apparent whether this narrative and position was intentional or as a consequence of compromised cognition, as identified or suggested by the parenting capacity assessment in its recommendations. The implications for the grandson, whether it was intentional or not, was deleterious to his emotional and psychological well-being, sense of identity, right to permanency, and his ability to properly build roots in the environment that was assessed and intended to be his permanent home.

54. Sufficient evidence was provided for the Tribunal to form the opinion that the grandmother viewed the paternal family with an unreasonable level of suspicion and actively worked against the agreed plan so as to limit the grandson’s opportunities to spend time building relationships with them.

55. The more recent evidence from the caseworker CS in the Affidavit of 15 February 2024 (Exhibit 5) identifies that there are continuing significant concerns about the grandmother’s ability to act in the best interests of her grandson. The grandmother was asked about these matters in the hearing.

56. The grandmother provided the documents which became Exhibit 6 at the hearing in support of her application to have the grandson back in her care. These documents were supportive of the relationship between the grandson and the applicants. However, the focus of those documents was upon the impact on the applicants rather than the child. The applicant grandmother had undertaken a number of courses between 2016 and 2024 which should have increased her ability to understand the importance of a safe and trauma-free environment for the benefit of her grandson. Between 2017 and 2024 the grandmother undertook counselling to improve her emotional management including anger management.

57. The affidavit of CS dated 15 February 2024 contained references to a number of concerning events which place in doubt whether the grandmother has been able to put into practice the insight she was expected to gain from the counselling she has undertaken. An anonymous ROSH Report was received by the Secretary in January 2024 which reported that the grandson had been hit regularly by the maternal uncle with whom he now lives, and which alleged that he had suffered injuries included bruises and scratches to his face, buttocks and legs. The caller also reported that the maternal aunt regularly tells the children to “fuck off” and often farts in the grandson’s face and calls him names. The grandson was reported to have said he wants to die like his father did. It was alleged that the two children in the care of the maternal aunt and uncle cringe when anyone raises their hand. It was also reported that one of the three dogs living in their home growls at the children and is often allowed into the house. It was further alleged that the maternal aunt had been pulled over by Police for an unlicensed (sic) car and the children are driven in that car by the aunt. It was alleged that the grandson sometimes does not get food, is not washed regularly, and the house is only cleaned when the caseworker is due to visit. The younger child was alleged to sleep in the same bed as the uncle and aunt. The anonymous caller terminated the call to the Helpline before making a full report. A further anonymous report was made to the Helpline the following day alleging that the grandson regularly wets himself and is being hit.

58. The grandson has not made any disclosures supporting the allegations. Similar allegations were made in 2023 and which were not substantiated. The uncle and aunt were spoken to about the allegations and they said they had never hit the children, nor do they use profanities to the children.

59. It was reported that the children have sibling arguments and that the grandson has been scratched during prior arguments, however since then the other child’s fingernails have been trimmed and there has been no further scratching incidents. The carers are receiving fortnightly carer support regarding managing the children’s behaviours and help with general parenting strategies. The grandson is familiar with his routine at the carers home including getting up to get dressed and ready for school, eating breakfast, engaging in extracurricular activities after school, bathing and general hygiene, going to bed on his own, remaining in his room the entire night.

60. The children are reported to love the dogs and the dogs live outside the home. There were no reported issues with the temperaments of the dogs and one of them had passed away in December 2023. It was reported that the cars are registered and insured and the aunt holds a current licence to drive.

61. Reports from the long day care centre attended by the grandson state that he has made some improvements and, in relation to his behaviours, there may be occasions when he lashes out at others and becomes aggressive and uses profanities, but these have become less frequent. There is an observed pattern when these behaviours now occur, and his behaviours appear to deteriorate after he has visits with his grandmother. The grandson is reported to have vocabulary to express his feelings in times of stress and does so well. He seeks attention from his educators, initiates one-on-one play, cuddles, engages in ‘talking things out’ with those he trusts most, has established friendships and enjoys sharing laughter and happiness with them. The grandson is fully toilet trained, dropped off with clean clothes and a packed drink bottle daily. He is reported to venture off quite happily on his own but does like to check in with the educators often.

62. The maternal aunt reports that the grandson has positive contact with his paternal uncle. The current carers have demonstrated a capacity to independently facilitate family time between the grandson and the paternal family, which has been reported as positive.

63. The grandson also spends regular time with the applicants. The grandparents are appropriate during the visits and the grandfather has been attending these visits consistently only since December 2023. There is supervision provided which monitors the behaviour of the adults and supports the interactions between the carers and the grandmother. Informal arrangements have also been organised in relation to Christmas, birthdays and other special events, including New Year’s Eve.

64. The grandson also spends time with his mother, supervised by the current carers, who have described the visits and phone or video calls as appropriate and positive with only a few minor issues where the mother has not always been engaging with the boys.

65. The grandson struggles with an understanding of the social story of his father and where he is, stating: “I don’t know why Dad walked in front of a car and got hit, now he’s in jail.” When asked how he knew this, he said: “I don’t know” and then “Nan”. The life story work is now being addressed to help him understand his father’s death. The behaviour of the grandson can be challenging, and he has been referred to a paediatrician for assessment. The grandson’s Body Mass Index (BMI) is now in a healthy weight range, and he eats a variety of foods.

66. The maternal aunt and uncle report that, at times, the grandson becomes easily frustrated which then leads to anger. They have been using ‘quiet time’ with him, where they will sit with him in his room, and encourage him to take some deep ‘tummy’ breaths to help him calm down.

67. Since the grandson’s placement with his brother and the maternal aunt and uncle, the applicant grandmother attended the carers’ home without permission and an argument ensued. Also on 25 January 2024 the applicant grandmother and the mother attended the carers’ home again without permission and brought with them a puppy. When asked by the caseworker about turning up uninvited, the grandmother acknowledged that she had, and that she had threatened the uncle, stating she would go over to his house and “punch him”. Previously she had threatened that the carers “won’t be around” and that she will “take him [the maternal Uncle] out”.

68. The applicant grandmother told CS that she had concerns about the care her grandchildren were receiving with the carers, her daughter and son-in-law. During family time contact the grandmother informed her grandson that he will be returning to her home. Contact visits with the grandmother are now supervised by Wesley Dalmar due to the concerns about her behaviour.

69. The applicant grandmother has stated she does not, and cannot, forgive the maternal aunt for having her grandson removed from her care and making up lies about her. The grandmother has also accused the mother of making up lies to have the child removed from her care. The grandmother has also said that when the grandson was living with her she wasn’t putting ‘pepper’ in his mouth or ‘doing anything they [the current carers] are doing’. On 12 February the applicant grandmother stated that she was angry with the uncle for making ‘false reports’ to the Child Protection Helpline about her so she will make reports against him as she does not want her grandson to live with his current carers even though the aunt is also the grandmother’s daughter. The carers have indicated that they would like to move to avoid the conflict.

70. On 13 February 2024 the grandmother asked CS to explain why her grandson was removed from her care by the Secretary. It was explained that CS, her manager, and the caseworker from Wesley Dalmar, had spoken to her several times about that, and the letter she had been given also explains the decision.

71. Concerns were raised in the parenting capacity assessment about the legacy of the grandmother’s own background, and it was observed that: “[the grandmother] has experienced complex trauma-starting in her childhood and compounded through her experiences as a victim survivor of family violence.”

72. The assessor was concerned about the capacity of the grandmother to retain and process information. The grandfather noted to the assessor: “[the grandmother] can sometimes have challenges as she can sometimes get focussed on one thing … I explain things to her, sometimes she does not understand.” The assessor noted that the grandmother made contradictory statements, which raised a concern about her cognitive functioning. The assessor considered there needed to be “further exploration in relation to [her] cognitive functioning and potential intellectual disability (potentially the same chromosomal abnormalities DCJ state impact [the mother’s] parenting capacity)...” This was not a criticism of the grandmother but an attempt to understand what additional needs could be catered for in provision of information and intervention. This led to one-on-one support again being provided.

73. The grandmother applicant was questioned about the courses she has undertaken. It appeared she had ‘ticked the box’ by taking the courses but had not learnt the skills sought to be imparted by the courses and counselling undertaken. The grandmother could not remember having had carer support training. The grandmother did not appear to accept that she needed counselling for her own trauma history because there was no clear acknowledgement or acceptance of trauma which was affecting her. The applicant grandmother also appeared from the evidence of CS’s affidavit to have threatened the maternal uncle and may have been responsible for the reports about the current carers, apparently as a form of perceived payback, which is not appropriate behaviour nor is it in the interests of her grandson. The courses undertaken have not enabled the applicants, particularly the grandmother, to develop insight and change their behaviours.

74. It is apparent that the grandmother has recently has an issue with her anger, even though she has attended counselling to assist with the obvious distress this causes to others. The evidence reveals that there are real issues between the applicants and the extended family, which will require a concerted effort and understanding to heal. That process is a future achievement which will require levels of commitment and understanding which are not yet evident. The submissions made by the applicants’ solicitor suggest that the applicants accept that there is room for improvement in the engagement of the grandfather applicant, and that the wider familial dynamics need to change to enable a positive continuing relationship between the applicants and their grandson.

49. The applicants have denied the concerns raised about their care of their grandson. There is a lack of evidence that those concerns are unfounded or that the applicants are effectively working on the issues raised. It is submitted that the applicants lack insight into the concerns and have shown no ability to sustain any required changes. This is a valid submission based upon the evidence before the Tribunal. This conclusion supports the cancellation of the authorisation.

50. The internal review was thorough and set out in detail the concerns, the impact on the grandson, and the extensive work that has been undertaken to address the issues with the applicants.

51. The concerns raised during the time that the grandson was living with the applicants were shown to be legitimate. They identified the risk to the grandson of suffering adversely to his sense of personal identity, and the emotional disadvantages if he remained in the care of the applicants without them changing.

52. The evidence shows the extensive efforts taken to ensure that the placement with the applicants was successful. However, those efforts did not result in marked change for the benefit of their grandson.

53. Since his placement with his maternal aunt and uncle the grandson has shown progress in his development, and he has formed an attachment to them and his sibling. The current carers are supportive of his relationship with the paternal family so that the grandson can develop and maintain that relationship. At recent home visits, the home is appropriately clean and uncluttered despite the claims made by the grandmother to the contrary.

Conclusion

80. The applicants were approved as authorised kinship carers for their grandson in 2020 with the family relationship being the motivating factor for considering, and then authorising, them to care for their grandson. Their love for their grandson is apparent and this was an important factor in the decision to place their grandson in their care.

81. The paramountcy principle applies in any decisions made pursuant the Children and Young Persons (Care and Protection) Act by reason of section 9(1) and the objects contained in section 137 are to be achieved “to create a high standard in the provision of out of home care”.

82. The authorisation may be cancelled or suspended if, in the opinion of the delegate, the carers are no longer suitable persons or have failed to comply with a condition or requirement of their authorisation.

83. The parenting capacity assessment in October 2022 identified continuing issues and recommended referrals and supports so that the child could “thrive in care, as opposed to surviving in care.”

84. Despite intensive support and training by appropriate services over the three-year period of intervention from 2020 to 2023, the applicants were unable to demonstrate the capacity and insight required to make changes that would adequately meet their grandson’s needs and allow him to ‘thrive’ in their care.

85. The applicants showed a lack of insight into the concerns held by the Secretary as delegate of the Minister and, in turn, breached the Code of Conduct for carers. The long-term trajectory for their grandson was negatively impacted by the failures to improve their parenting capacity.

86. In contrast, since his placement with his maternal aunt and uncle the grandson has made significant attachments with them and his sibling, he has progressed and shows gains in his self-care, he has a growing connection with his paternal family and a safe connection to his mother. The grandson’s settlement in his current placement means that there would have to be very good reasons to change his current arrangements, because his safety, welfare and well-being are paramount and further disruption is likely to have a negative effect on him.

87. The reasons for cancellation of the authorisation are stated to be the breach of the Code of Conduct and the lack of insight into, and inability to sustain change in, the areas of concern raised with the applicants during the three years of intervention. The applicants were considered to be unable to meet the needs of their grandson, in particular his long-term psychological and emotional needs. In out of home care, the primary object is to provide a level of care that meets the child’s needs, something the applicants were not able to provide.

88. It is the determination of the Tribunal that the evidence supports the finding that the correct and preferable decision is to cancel the applicants’ authorisation. As a consequence, the placement of the grandson with his current carers remains undisturbed.

Orders

89. It is therefore ordered that:

1. The decision made on 27 April 2023 to revoke the authorisation of the Applicants as carers for the kinship care of their grandson is upheld and affirmed as the correct and preferable decision.

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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: 10 April 2024