HB v Director General, Department of Community Services
[2008] NSWADT 207
•29 July 2008
CITATION: HB and anor v Director General, Department of Community Services [2008] NSWADT 207 DIVISION: Community Services Division PARTIES: APPLICANTS
RESPONDENT
HB and HC
Director General, Department of Community ServicesFILE NUMBER: 074036 HEARING DATES: 11-13 March 2008 SUBMISSIONS CLOSED: 28 July 2008
DATE OF DECISION:
29 July 2008BEFORE: Britton A - Deputy President; Moss J - Non Judical Member; Goodman-Dulhunty J Dr - Non Judicial Member CATCHWORDS: Revocation of care authorisation MATTER FOR DECISION: Principal matter LEGISLATION CITED: Administrative Decisions Tribunal Act 1998
Community Services (Complaints, Reviews and Monitoring) Act 1993CASES CITED: YG & GG v Minister for Community Services [2002] NSWCA 247
McDonald v Guardianship Administration Board [1993] 1 VR 521REPRESENTATION: APPLICANTS
J McIntosh, barristerRESPONDENT
SUBJECT CHILDREN
E Picker, barrister
K Rowley, solicitorORDERS: Affirm the respondent’s decision to revoke the applicants’ carer authorities.
Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(1A) This section applies only to the following:
(a) proceedings in the Community Services Division of the Tribunal,
(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,
(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,
(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983
(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.
(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:
(a) who appears as a witness before the Tribunal in any proceedings, or
(b) to whom any proceedings before the Tribunal relate, or
(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,
whether before or after the proceedings are disposed of.Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(3) For the purposes of this section, 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
1 On 13 March 2008, following a three day hearing held in western New South Wales, we affirmed the decision made by the Director General of the Department of Community Services (DoCS) to remove two children from the care of the applicants. We delivered extempore reasons for that decision. Because of time constraints we did not address the interrelated application: to review the decision to revoke the applicants’ carer authorities. These reasons address that application.
2 The applicants are a married couple and in these reasons, to protect their privacy and that of the subject children, will be referred to as [Mr] HB and [Mrs] HC.
3 The subject children, siblings, a boy aged six and a girl aged eight, had been in the care of the applicants for six years. They were removed and placed in alternative care in September 2007. An older brother who in these reasons will be referred to as Child 1, left the placement in March 2007.
4 The applicants were notified of the decision to remove the subject children by letter dated 4 September 2007, from Mr James Price, client services manager, DoCS. That letter outlined 13 allegations, including that the applicants had: smacked the subject children; locked the girl’s bedroom door at night; told the children to pack their bags and leave when they misbehaved.
5 At the request of the applicants an internal review was undertaken which, affirmed the original decision and, in addition, made a fresh decision, namely to revoke the applicants’ carer authorities.
6 The decision to revoke the applicants’ carer authorities has not been the subject of internal review. By consent, leave was granted for the application to review that decision to proceed to be determined by the Tribunal, notwithstanding that an internal review had not been conducted (section 55(2) of the Administrative Decisions Tribunal Act 1998 (‘the Tribunal Act’)).
Background to the subject decisions
7 In these reasons we will not detail the reasons we gave for affirming the decision to the remove the subject children. However as that decision and the revocation of the applicants’ carer authorities are interrelated to some extent it is necessary to briefly outline some of the issues relevant to both.
8 Throughout the course of the subject placement a number of allegations were levelled against the applicants. The Department found some, but by no means all, to be substantiated.
9 In September 2006 the Department referred a number of disclosures made by Child 1 to the Prevention of Abuse and Neglect of Children (PANOC) Service. These included that the applicants hit him on occasion; called him ‘piss head’ and favoured his siblings over him. All allegations were strenuously denied. A subsequent investigation conducted by the Department’s Allegation Against Employees Unit (‘the Unit’) found some of these allegations to be substantiated. The unit recommended, among other things, that, a comprehensive psychological family assessment be undertaken; the carers be given appropriate behaviour management strategies to deal with the children, especially Child 1; that ongoing casework be provided and the placement carefully monitored.
10 In March 2007, DoCS officers decided to remove Child 1 from the care of the applicants. The DoCS officer charged with oversight of the placement told the Tribunal that it had been her belief at the time, that the removal of Child 1 would stabilise the placement as it was reported that he displayed troubling behaviours and was in constant conflict with his siblings. The applicants testified that while they found the decision to remove Child 1 to be painful, they had supported the decision as they considered it to be in the best interests of the two younger children.
11 When Child 1 was removed none of the Unit’s recommendations had been fully implemented.
12 In August 2007, the Department was provided with a report prepared by Department psychologist, Ms Noeline Bloomfield. Ms Bloomfield had been requested to provide the report in December of the previous year following the recommendations made by the Unit. Ms Bloomfield was highly critical of what she considered to be the applicants’ opposing parenting styles: ‘one punitive the other permissive’. She considered neither ‘conducive to the development of confident, secure and well balanced children’. She expressed her concern about the way the applicants engaged with treatment agencies and professionals and believed that they were generally reluctant to follow advice. She recommended that the two remaining children be removed and that the applicants’ carer authorities be revoked.
13 In early September 2007 following fresh disclosures by Child 1, DoCS officers interviewed the subject children. On the basis of the information provided in those interviews together with Ms Bloomfield’s report, it was decided to remove the children.
14 The applicants have at all times vigorously defended the allegations made by Child 1. They testified that they had provided a loving and secure home to the children and claim to have been bewildered by the allegations made against them. Their claims were corroborated by a large number of witnesses, many of whom had the opportunity to observe the children with the applicants, over an extended period, in a variety of situations. Many, such as the principal of the school the subject children attended, had lengthy experience dealing with children.
15 In the reasons delivered by us concerning the decision to remove the children, we expressed our misgivings about the reliability of the children’s evidence, noting that much of it was internally inconsistent and that there were no independent witnesses to any of the alleged misdeeds. Importantly, we noted that taking the case against the applicants at its highest, it was difficult to discern whether any of the alleged conduct had continued after Child 1 had left the placement in March 2007. We concluded that while none of the allegations made against the applicants could be proven on the balance of probabilities, we could not be satisfied that there was no truth in any of the allegations.
16 We decided that the children should not be returned to the care of the applicants because, among other things, whatever the truth of their allegations, the interviews given to DoCS case workers in September 2007 and the history taken by Ms Bloomfield revealed a level of unhappiness among the children, especially when placed in the care of HB alone. We decided it was not possible to exclude the possibility that the reported unhappiness might have been attributable at least in part to the influence of Child 1, or some other factor unrelated to the applicants’ parenting skills. Nonetheless, coupled with the fact that the subject children had not lived with the applicants for close to six months, we concluded that it was not in their best interest to return to the care of the applicants.
Should the decision to revoke the applicants’ carer authorities be revoked?
17 In reviewing the decision to revoke the applicants’ authorities the Tribunal ‘stands in the shoes’ of the Director General and is required to make the ‘correct and preferable decision’ having regard to any relevant factual material and any applicable written or unwritten law (Tribunal Act, section 63). This includes any material that postdates that decision (YG & GG v Minister for Community Services [2002] NSWCA 247 at [25]). The review is to be conducted ‘without any presumption as to the correctness of the decision’: McDonald v Guardianship Administration Board [1993] 1 VR 521 at 530 (SupCtVic, Appeal Div).
18 It is not in issue that the decision made by the Department to cancel the applicants’ authorisation as authorised carers is reviewable by the Tribunal (section 245(1)(a) of the Children and Young Persons (Care and Protection) Act 1998 and section 28(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993).
19 It does not follow that because we have decided to affirm the decision to remove the children from the care of the applicants that we must affirm the subsequent decision to revoke their carer authorities. It may be that an authorised carer is unsuitable to care for a particular child or children but suitable to care for another child or group of children. In such cases it may be appropriate to consider whether it is appropriate that the person be granted an authority with conditions.
20 It may well be that our decision in respect of the carer authorisation is academic and that the applicants have no interest in applying to take on the care of other children in out-of-home-care. This issue was not canvassed in the proceedings as understandably the focus was on whether the subject children should be return to live with the applicants. Nonetheless as the application has not been withdrawn we are obliged to determine it.
21 As stated in the oral reasons given for the decision to remove the children, we do not accept all of the criticisms levelled against the applicants by officers of the Department made in the course of these proceedings. The objective evidence reveals that whatever their shortcomings as carers, the applicants provided the subject children with a loving home environment and were diligent in pursuing their medical, educational and other needs. As DoCS’ own evidence reveals, the applicants had been scrutinised six years earlier and assessed by the Department to be persons of good character with the necessary skills to undertake the care of children in out of home care.
22 Nonetheless, in the absence of a positive finding that the applicants had not mistreated the children in the manner they alleged, it seems to us that the respondent’s decision must be affirmed as there would be a risk that such conduct might be repeated. We recognise that this decision may visit a great injustice on the applicants however we must be guided by the principle that the interests of the subject children in this jurisdiction are paramount.
23 For these reasons the correct and preferable decision is to affirm the respondent’s decision to revoke the applicants’ carer authorities.
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