G v Director General, Department of Community Services

[2000] NSWADT 148

CITATION:	G -v- Director General, Department of Community Services [2000] NSWADT 148
DIVISION:	Community Services Division
PARTIES:	APPLICANTS Mr and Mrs G RESPONDENT Director General, Department of Community Services
FILE NUMBER:	004012
HEARING DATES:	17 October 2000
SUBMISSIONS CLOSED:	10/17/2000
DATE OF DECISION:	11/09/2000
BEFORE:	Hennessy N (Deputy President); Brennan D - Member; Mason J - Member
APPLICATION:	Stay of proceedings
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Children (Care and Protection) Act 1987
CASES CITED:
REPRESENTATION:	APPLICANT M Ferguson, solicitor RESPONDENT J Korathota, solicitor
ORDERS:	Application for stay refused

Background

1 Mr and Mrs G applied to the Tribunal for an urgent interim order staying the operation of a decision of a delegate of the Director General, Department of Community Services (DOCS) to remove a child, F from their care.

2 F, a male aged 9, is a ward of the State and has been in the care of Mr and Mrs G since September 1999. On 15 and 16 September 2000, F, along with two other children, H, a 15 year old female, and K, a 7 old male were removed from the care of Mr and Mrs G following disclosures of physical and sexual abuse by H.

3 According to DOCS officers, the removal followed the receipt of allegations of a criminal nature including physical, sexual and emotional abuse of the children. In the Department’s view they have a statutory duty to protect children who are considered to be at risk and it was necessary to remove the children to comply with this duty.

4 Subsequently DOCS commenced an investigation into the disclosures. The matter was referred to a joint investigation team comprising DOCS officers and police. According to DOCS officers, interviews with approximately 30 people need to take place and it is likely that the process with take some months.

Conduct of the hearing

5 The application for a stay was conducted via teleconference with Mr Ferguson, on behalf of his clients, Mr and Mrs G. Ms Kachel, Director of Child and Family (Northern Region) with DOCS, was also on the phone. Ms Korathota, solicitor for the respondent, appeared in person.

Jurisdiction

6 The general rule is that a person cannot apply to the Tribunal for a review of a decision unless an internal review has been finalised. (Administrative Decisions Tribunal Act 1997, (ADT Act) s 55(1)(b).) The G’s eventually applied for an internal review of the decision to remove the children on the advice of registry staff. The G’s made that application but the time limit for a response has not expired. In these circumstances, the Tribunal is satisfied, pursuant to s 55(2)(c) of the ADT Act that it is necessary to deal with this application despite the fact that an internal review has not been finalised.

7 Section 60(2) of the ADT Act allows the Tribunal to stay or otherwise affect the operation of the decision under review. The sub-section states that:

(2) On the application of any party to proceedings for an application for a review of a reviewable decision, the Tribunal may 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.

8 The only possible “decision under review” in this case is the decision set out is s 112(h) of the Children (Care and Protection) Act 1987 (the Act). That paragraph states that:

For the purposes of section 40 (1) (a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993, any of the following decisions are reviewable by the Administrative Decisions Tribunal:
(h) a decision of the Minister to terminate the custody of a ward or protected person under section 91 (1) (e)

9 Under section 91(1)(e)

The Minister may terminate the custody of a ward or protected person who has been placed in the custody of a person referred to in paragraph (d) (i) or (ii), and

10 Under s 91(d) the Minister:

(d) may, subject to such conditions as may be prescribed by the regulations and to such additional conditions as the Minister may determine, place any ward or protected person:
(i) in the custody of a person in charge of a non-Government organisation, or
(ii) for the purpose of the ward or protected person being fostered, in the custody of any person approved by the Minister, being a person who is willing to undertake the custody of the ward or protected person,

11 Under s 91(f) the Minister may direct that a ward be restored to the custody of a parent of the ward or be placed in the custody of any other person.

12 Given these provisions, the Tribunal has jurisdiction to hear this case as long as the Minister has placed J in the custody of the applicants for the purpose of being fostered. Although there was no direct evidence that this had occurred, neither party raised it as an issue. In these circumstances the Tribunal has concluded that it has jurisdiction to hear this application.

Relevant legislative provisions

13 Under s 60(2) of the ADT Act set out above, the Tribunal has power to make interim orders. Section 60(3) sets out the consideration that the Tribunal must take into account when deciding whether to make such an order. That provisions states that:

(3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account:
(a) the interests of any persons who may be affected by the determination of the application, and
(b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and
(c) the public interest.

14 Part 6 of the Children (Care and Protection) Act 1987 relates to wards and protected persons. Section 89 of states that:

(1) In the administration of this Part, the welfare and interests of wards and protected persons shall be given paramount consideration.
(2) In determining any matter relevant to the welfare or interests of a ward or protected person, regard shall be had to the wishes of the ward or protected person.
Documentary Evidence

15 The documentary evidence in this case consisted of:

(a) affidavit of V, foster carer, dated 6 October 2000;
(b) affidavit of Kathleen Dymond, Acting Assistant Manager with DOCS dated 5 October 2000;
(c) affidavit of Kathleen Dymond, Acting Assistant Manager with DOCS dated 6 October 2000;
(d) affidavit of Suzanne Bright, District Officer with DOCS dated 12 October 2000;
(e) reference from Tina McTavish in relation to Mr and Mrs G dated 14 April 2000;
(f) letter from J’s natural mother to Yvonne Kachel dated 25 September 2000;
(g) letter from K’s grandmother to Yvonne Kachel dated 15 October 2000.

16 The affidavits were prepared for separate proceedings in the Children’s Court in relation to another matter, but they are nevertheless relevant to these proceedings.

17 No oral evidence was given at the hearing.

Consideration and evaluation of the evidence

18 The affidavit of V related a conversation she had with a child who was a ward of the State. The child had formerly been in the care of the G’s and the affidavit states that the child said to her that Mr G was “purving on me in the shower and trying to touch me up.” Mr G was “attempting to put his fingers in my hole while I was naked in the shower.”

19 The affidavit of Suzanne Bright, a district officer employed by DOCS, states that she had a conversation with H on 15 September 2000. The conversation took place shortly after H had been removed from the care of the G’s. In that conversation, H alleged, among other things, that another ward who had lived with the G’s had told her that she and Mr G were having a sexual relationship. H also said that G’s son had fondled her and forced her to give him a “head job.”

20 H allegedly told Suzanne Bright that Mr G “wanted to cuddle and kiss me and lay on top of me.” She also said that she saw Mr G “wrapped around K.” “Mr G was lying on his side and K was on his back. There was a gap between them. Mr G had his arm and legs across K. I got suspicious because Mr G was cuddling K the same way that (he) cuddled me.”

21 The affidavit of Kathleen Dymond dated 5 October 2000 relates to a conversation she and a Detective Sergeant of police had with J on 4 October 2000. The affidavit contains the following statements:

Police: If you didn’t do the jobs what would happen?
J: I’d get a flogging.
Police: What with?
J: With a leather belt.

22 The material before the Tribunal included a letter from J’s natural mother. She is currently caring for J pending the investigation. In her view, the G’s have been excellent carers for J and J should be returned to their care.

23 The task of evaluating the evidence was difficult because it comprised written material from some, but not all of the people to whom the allegations relate. The Tribunal did not have the opportunity to assess the credibility of any of the authors of these documents or any of the other people named in the documents. There was no oral or written evidence from either Mr or Mrs G.

24 On the basis of the evidence that was before us, we make the following findings.

25 We accept the submission from Mr Ferguson (which Departmental officers accepted) that J’s behaviour and attitude to school had improved significantly since his placement with the G’s. While there were second hand assertions about the wishes of J, there is no reliable evidence which would enable us to make a finding about whether he wants to return to live with the G’s.

26 The reference from Tina McTavish, Child Protection Casework Specialist, dated 14/4/2000 states that the G’s had a substantial record of success fostering children over a 9 year period and that they were “outstanding carers.” Apart from any doubts created by the allegations of physical and sexual abuse, we accept that Mr and Mrs G were dedicated and competent carers.

27 The reason for the removal of J and K was apparently the disclosures of H relating to sexual abuse. Since those disclosures were made, J made some disclosures about physical abuse, namely flogging with a leather belt. The credibility of these disclosures has not been tested and the Tribunal is obviously not in a position to make any findings about whether or not they in fact occurred. The most that can be said is that allegations have been made which warrant further investigation.

Submissions by the parties

28 Written submissions from the parties were an annexure to the application for urgent stay of decision dated 12/10/00 and a submission from Ms Korathota, solicitor with DOCS, dated 16/10/00.

29 The applicant’s main submissions were that:

· there is no substance to the allegations;

· the Department should have investigated the allegations for substance and veracity before removing the children;

· the Departmental action was precipitous and resulted in unnecessary trauma, distress and anxiety for J; and

· the longer J is away from the G’s the more serious the effects of the disruption will be.

30 The respondent’s submissions included the following:

· the decision to remove J from the care of the G’s was made following certain allegations of a criminal nature;

· the Department has a statutory duty to protect children;

· the joint investigation team is progressing as quickly as possible;

· given the nature of the allegations that have been made, it is inappropriate that the children be returned to the care of the G’s. This is especially so given that the children have been interviewed by the joint investigation team and have made certain allegations and disclosures; and

· given that members of the G family have been named as perpetrators of the alleged abuse, it is inappropriate that contact take place between the G’s and the children while the investigations are continuing.

Reasoning and Decision

31 The task for the Tribunal is to determine whether or not the decision to remove J should be stayed. The relevant considerations in coming to this decision are the welfare and interests of J, the wishes of J and any public interest considerations including the viability of the investigation process.

32 The evidence from J’s mother suggests that it would be better for J to live with the G’s. It was conceded by Departmental officers that he has made good progress while in their care. Against this, we must assess any risk of abuse J may face if restored to the G’s care and whether such a restoration would compromise the investigation which is currently taking place.

33 While the Tribunal is by no means convinced of the credibility of H and J in relation to the allegations of sexual misconduct and “flogging” respectively, these allegations are serious. There is some risk, however small, that the allegations are well founded. Consequently J’s welfare would best be served by remaining with his natural mother until the investigation is complete. Ms Kachel advised that extra support services for J will be put in place. These services are clearly essential to J’s welfare.

34 As well as considering J’s welfare, we agree that it could compromise that investigation for J to be living with the G’s while the investigation is taking place. There is a risk that Mr or Mrs G could seek to influence J’s evidence.

Orders

35 The application for a stay is refused.

Compliance with the provisions of the ADT Act

Ms Kachel conceded that she had not advised the G’s in writing of the decision to remove J, nor did she advise them of their right to have that decision reviewed. These are requirements of s 48 of the ADT Act which are designed to ensure that citizens are advised of administrative decisions which directly affect them and that they have an opportunity to quickly test those decisions through an internal review. The Department’s failure to comply with s 48 has contributed to the delay by the G’s in bringing this application before the Tribunal. When making a stay application, time is of the essence. Once the status quo has been altered for a considerable period of time, it is far more difficult to justify a return to it. We would urge all Departmental officers who have the delegation to make reviewable decisions, to ensure that the requirements of the legislation are complied with in future.