K v Minister for Community Services (No. 2)

[2000] NSWADT 101

CITATION:	K (No. 2) -v- Minister for Community Services [2000] NSWADT 101
DIVISION:	Community Services Division
PARTIES:	APPLICANT K RESPONDENT Minister for Community Services
FILE NUMBER:	004003
HEARING DATES:	21 July 2000
SUBMISSIONS CLOSED:	07/21/2000
DATE OF DECISION:	07/31/2000
BEFORE:	Hennessy N (Deputy President); Gelin B - Judicial Member; Monoghan-Nagle L - Member
APPLICATION:	Guardianship - refusal to terminate guardianship of a ward
MATTER FOR DECISION:	Reusal to terminate guardianship of a ward
LEGISLATION CITED:	Children (Care and Protection) Act 1987
CASES CITED:
REPRESENTATION:	APPLICANT In person RESPONDENT D Smith, solicitor
ORDERS:	The decision made by the delegate of the Minister for Community Services under s 112(1)(e) of the Children (Care and Protection) Act 1987, to refuse to terminate the Minister's guardianship of F K, is affirmed.

History of application

This is the second application to this Tribunal by Mr K for review of a decision by the Minister for Community Services not to terminate the guardianship of F, Mr K’s 11 year old daughter. K first applied to the Community Services Appeals Tribunal (which subsequently became a Division of the Administrative Decisions Tribunal) on 3 September 1998. That application was heard on 31 March 1999. The Tribunal’s decision was to affirm the Minister’s decision. This meant that F remained a ward and was not returned to her father’s care. The reasons for this decision were handed down on 28 April 1999. The current application concerns a second decision by the Minister, made on 11 February 2000, not to terminate the guardianship of F.

Powers of the Tribunal

2 There was no dispute about the power of the Tribunal to hear and determine this application. Those powers are derived from s 40(1)of the Community Services (Complaints, Reviews and Monitoring) Act 1993, s 112(h) of the Children (Care and Protection) Act 1987 and s 8 of the Administrative Decisions Tribunal Act 1997 (ADT Act).

3 The process for reviewing decisions and the Tribunal’s powers are set out in Chapter 5, Part 3 of the ADT Act. The Tribunal has to consider all the material available to it and determine what the correct and preferable decision is. This process is often described as the Tribunal "standing in the shoes of the decision maker." After hearing an appeal the Tribunal may: affirm the decision; vary the decision; or set aside the decision (ADT Act s 63(3)).

4 One aspect of this case deserves comment before proceeding with the substantive issues. Ms Hartwell, Senior District Officer, and Ms Daniel, Assistant Manager of the Central Coast Substitute Care Team, wrote to Mr K on 11 February 2000. That letter was in response to a request by Mr K that F be returned to his care. The letter said that they were “unable to accede to your request to care for your daughter.” The letter went on to say that:

As you are aware, the reasons for this were outlined at the Community Services Appeals Tribunal last year.
It was felt that you are unable to respond to F’s emotional needs; she is a complex child and needs a great deal of understanding and patience. Because of these high needs there are concerns about your ability to provide adequate parenting to F.
It was felt that your method of discipline, as documented in Departmental records, could place F at risk of further abuse.

5 Under s 48 of the ADT Act, an administrator who makes a reviewable decision must take such steps as are reasonable in the circumstances to give any interested person notice in writing of the decision and the right of the person to have the decision reviewed. In this case, while the Departmental officers gave Mr K notice in writing of the decision, they did not advise him of his right to have the decision reviewed. Although any contravention of s 48 does not affect the validity of the decision, it is obviously desirable for officers of the Department of Community Services to conform to the requirement set down in the legislation. Because the officers in this case did not advise Mr K of his right to have the decision reviewed, an internal review of the decision, pursuant to s 53 of the ADT Act, was never requested or provided.

6 We can only review a decision if an internal review is taken to have been finalised (s 55(1)(b)) unless we are satisfied that it is necessary to deal with the application in order to protect the interests of the applicant and the application was made within a reasonable time following the decision of the administrator. In this case we are satisfied that we should proceed to hear this matter, as provided in s 55(2)(c), despite the absence of an internal review.

7 The failure to advise Mr K of his right to an internal review conflicts with the intent and specific requirements of the scheme of review of administrative decisions laid down in the ADT Act. We would encourage senior officers of the Department to ensure that officers who have the delegation to make decisions which are subject to review by this Tribunal, comply with the requirements of the ADT Act when making those decisions.

Issue

8 In cases such as these, the Tribunal is required to treat the welfare and interests of the child as its paramount consideration, and must have regard to the wishes of the child if it is possible to determine those wishes. Section 89(1) and (2) of the (Children (Care & Protection) Act 1987 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.

Consequently the issue in this case is, having regard to F’s wishes, would it promote her welfare and be in her interests to be restored to the care of her natural father or to remain under the guardianship of the Minister?

History of this case

10 The background to this case was set out in the Tribunal’s previous decision of 28 April 1999. Briefly, F was born in Uganda on 20 December 1988. She is currently 11 years old. When she was 2 years old, she accompanied her father to resettle in Australia. Mr K moved several times within Australia and settled briefly on the Central Coast with his partner, S. On 21 October, 1996 F’s half brother, R, was born to S and Mr K.

11 After several notifications and one conviction of physical and verbal abuse and of leaving her unsupervised, F was made a ward on 26 June 1997. F has been placed in the custody of Dalmar, a Division of Wesley Mission Australia.

12 Dalmar had great difficulty finding a suitable placement for F. She entered the “Gateway” program run by Dalmar at Lewisham in January 1998 while a long term foster placement was being sought. F’s behaviours worsened while at “Gateway” and she was placed with a foster carer, E, during the second half of 1998. This placement did not succeed in the long term

13 From the beginning of 2000, F has been residing in a unit with three youth workers caring for her on a rotational basis. Since February 1999, F has been attending a Special School for students presenting behavioural and/or emotional difficulties.

14 Mr K now lives in Melbourne with his partner S, and their son, R as well as another pre-school age boy, who Mr K says is an “in law”.

Evidence

15 The documentary evidence before the Tribunal was:

• Mr K’s application;
• a letter from the Department to Mr K dated 11 February 2000 refusing Mr K’s request to have F returned to his care;
• a placement update report relating to F prepared by Kim Hadley, team leader at Dalmar dated 1 February 2000; and
• a placement update report relating to F prepared by Carol Hartwell, Senior District Officer, Central Coast Substitute Care Team dated 13 July 2000.

Oral evidence was given by:
• Mr Emanuel, a staff member of the Tribunal;
• Mr K (the applicant in the proceedings);
• F (Mr K’s daughter);
• S (Mr K’s partner);
• Carol Hartwell (Senior District Officer, Central Coast Substitute Care Team); and
• Annette Posimani, project co-ordinator with Dalmar.

16 Generally, the Community Services Division appoints a guardian ad litem for the child or children concerned in the proceedings and arranges for an independent assessment to be carried out of the ability of the parent to provide for the best interests of the child. Although the Tribunal followed these procedures in relation to Mr K’s first application, we did not repeat them in relation to his second application. The reason for this was that Mr K did not point out in his application any evidence of changes in his circumstances or improved ability to care for his daughter which would justify a further assessment.

To ensure that F’s wishes were known to the Tribunal we arranged for her to be interviewed by Mr Emanuel, a staff member of the Tribunal. Mr Emanuel was initially employed with the Community Services Appeals Tribunal as an investigations officer and has a Certificate in Welfare and five years experience counselling children and adults. Mr Emanuel interviewed F on the morning of the hearing and reported the content of their conversation to the Tribunal. He said that F told him she last saw her father towards the end of 1999 and that she speaks to him every second month by phone. Mr Emanuel went on to say that F told him that she did not want to leave the place where she was living at the moment to go and live with her father in Melbourne. She would like to see him and her half brother during school holidays for a period of about a week at a time as long as there was someone else with her. These wishes were also expressed to her caseworker, Annette Posimani. (See report of Carol Hartwell dated 13 July 2000).

18 F met the Tribunal members prior to the hearing and attended some of the hearing. She spent some time in the back of the Tribunal room with S, her half-brother R, and the other pre-school age boy who is living with Mr K and S at the moment. After the hearing had been in progress for about half an hour, F asked if she could say something. When we agreed, she said that she had changed her mind and that she did want to live with her father. She said she hadn’t realised that S would be living with them. She thought S and Mr K had separated.

19 Ms Hartwell is the person in the Department who has responsibility for the overall case management of F. She said that the long term plan for F was to acquire a larger house for her and to have another resident live with her while still employing youth workers on a full-time basis. Ms Hartwell said that it was important for F to interact with other compatible children in order to learn socialisation skills. Restoration to Mr K’s care is not being considered as an option at the moment. One reason for this is that the Departmental officers concerned do not believe that Mr K is capable of meeting F’s emotional needs.

20 Ms Posimani told the Tribunal that she has been the key person at Dalmar responsible for F for the last three years. She said that F’s behaviour had improved significantly over the last six months: she had begun to share, relate well to staff and to feel relatively secure and safe. Her self-esteem has improved and the idea of placing her with a foster carer is again on the agenda. Any placement with foster carers would be preceded by periods of short term or respite care. Ms Kim Hadley, previously an employee of Dalmar, has moved into private practice as a counsellor and F has been attending weekly counselling sessions with her.

21 Mr K denied that he had ever abused F. Instead he said that he had only smacked her. He said he was “directing” her. He did not think he made any mistakes. He said the way he was bringing her up was “fine” and that he did not have any “faults”.

22 Mr K gave evidence that he is concerned about F because she has been moved several times and has, he believes, been subject to the bad influence of other children in care. He said it was a mistake for her to have been made a ward.

23 The Tribunal asked Mr K whether he has attempted to undertake any training in parenting skills as recommended in the first decision. He said that he had borrowed a video from the library. He said that the Departmental officers had not told him what course he should attend and he could not afford to pay for any courses. Mr K also said that he didn’t need any special skills, just common sense, and that F is his child and she should live with him. In addition he said he was currently looking after his son as well as another young boy and that it would be the “same thing” looking after F.

24 Mr K said that his role as a father is to tell his child what is right and what is wrong. If she was returned he would give her a safe, secure environment.

25 In relation to a question about whether he and S had separated recently, Mr K said that S had moved to her parents’ house for a week so that child care was available, while he was doing a vocational training course, three days per week. Now that they have organised child care, she has moved back again. He said that their relationship was “very fine” and that they don’t fight.

26 He said that if F moved back with him, S would “be directing her” because she is a girl, like F. He said he would provide for F’s needs. When questioned, he said he did not know what F’s emotional needs were because he had not been living with her for 3 years. He could not see any reason why his daughter should be kept away from him.

27 S gave evidence that she is employed as a general nurse and that she is prepared to have F live with her and Mr K. She said she would pay a lot of attention to her and organise her to go to activities that she enjoys such as singing lessons and sporting activities. She was also happy for F to continue with the counselling. If F did not do what she was asked, S said she would discuss the situation with F and try to resolve the problem.

28 S also said that F would not have any opportunity to run away again as she did when she was living with them, because she would talk to her about what was upsetting her. S said she had matured a lot since she was looking after F previously and that she could deal with difficult situations.

Findings of fact

29 There were very few discrepancies in the facts. We accept the content of the two placement reports from Dalmar as an accurate assessment of F’s current situation and behaviours. F is making reasonably good progress in her current placement. In relation to F’s wishes, initially she did not want to return to live with her father, but after finding out that S would be living with him, she changed her mind.

30 We have concluded on the basis of Mr F’s evidence that he has very little, if any, appreciation of the impact of his previous behaviours on F. He plays down the significance of those behaviours and says he was only smacking her, or leaving her for short periods while he went to the shops. In fact, Mr K was convicted of assaulting K and of leaving her unsupervised. He shows no remorse for those behaviours.

31 In addition, Mr K did not demonstrate any understanding of the skills which would be required to relate to F and meet her emotional needs if she was returned to his care. He did not appreciate that F has complex emotional needs and assumes that she will fit in easily to life with him and his family. He would be relying to a great extent on S to communicate with F. Mr K does not see himself as having anything but a ‘supervisory’ or ‘directive’ kind of role.

32 We find that S demonstrated a slightly better understanding of how to relate to F and the kind of communication that would be needed to deal with her emotional needs.

Submissions

33 Mr Smith submitted that there are concerns about Mr K’s parenting skills and the fact that he does not recognise any need for him to improve those skills. In his view Mr K has been unable to provide the Tribunal with evidence of a change in circumstances or demonstrate his ability to provide F with a nurturing environment and manage her behaviour in a safe and caring manner.

34 Mr K said that F should have the advantage of a relationship with her half brother and that the family should be kept together. He assumed that because F is his daughter, she should live with him.

Application of law and decision

35 F’s wishes are relevant to the Tribunal’s decision, however they are not determinative. Prior to the actual hearing, F had consistently said that she did not want to return to live with her father. After a conversation with S, she changed her mind. F has only seen her father once or twice in the last 3 years. In our view, F would have to spend some time in the supervised care of her father, before she could confidently come to decision as to whether she wanted to live with him again.

36 In our view, F’s welfare and interests would be best served by her remaining under the guardianship of the Minister. She is making reasonable progress in her current placement, but more importantly Mr K does not have a sufficient appreciation of the damage his previous behaviours have done to his daughter. He minimises those behaviours and does not realise that he would have to acquire significant skills as a parent to give F an environment where her challenging behaviours could be responded to sensitively and effectively. Although S appeared to have a better grasp of how to communicate and respond to F, we have concerns about stability of her relationship with Mr K.

37 In relation to access we recommend that Dalmar and the Department organise regular access with F as well as her half brother and S. F wants to spend time with her father and his family and she should be given an opportunity to do so on a regular, supervised, basis. We appreciate that it may be difficult to arrange this while Mr K is living in Melbourne, however, the Department indicated on the last occasion that it would be prepared to pay for Mr K to travel from his home in Melbourne to Sydney for access visits. Consideration should also be given to F travelling to Melbourne, accompanied by a carer, to visit Mr F and his family on a regular basis. In this way she can also have access visits with her half brother and S.

38 In relation to parenting courses, we recommend that Dalmar or the Department should identify and, if possible, pay for a suitable course or series of courses for Mr K to attend. As we said in our first decision, “If access is positive and the parenting courses and therapy provide Mr K with the insights and strategies needed to meet F’s needs, then restoration should be reconsidered.”

39 Accordingly, the Tribunal makes the following orders pursuant to s 63 of the Administrative Decisions Tribunal Act 1997:

The decision made by the delegate of the Minister for Community Services under s 112(1)(e) of the Children (Care and Protection) Act 1987, to refuse to terminate the Minister’s guardianship of F is affirmed