Mi and MJ v Minister for Community Services

[2004] NSWADT 133

CITATION:	MI and MJ v Minister for Community Services [2004] NSWADT 133
DIVISION:	Community Services Division
PARTIES:	APPLICANTS MI and MJ RESPONDENT Minister for Community Services
FILE NUMBER:	044013
HEARING DATES:	02/07/2004
SUBMISSIONS CLOSED:	07/02/2004
DATE OF DECISION:	07/06/2004
BEFORE:	Britton A - Judicial Member; Moss J - Non Judical Member; Groth D - Non Judicial Member
APPLICATION:	Stay of proceedings
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Children (Care and Protection) Act 1987 Children and Young Persons (Care and Protection) Act 1998 Community Services (Complaints, Reviews and Monitoring) Act 1993
CASES CITED:	Williamson v Director-General, Department of Transport [2000] NSWADT 165 Cowling v Cowling [1998] FamCA 19 (20 March 1998)
REPRESENTATION:	APPLICANT S Hodges,solicitor RESPONDENT T Wells, solicitor
ORDERS:	The Minister’s decision is stayed on condition that: (i) that the applicants, agree to undertake, as soon as is reasonably possible, positive parenting training as directed or referred by the respondent; (ii) the applicants agree to comply with any requirement of the respondent concerning case conferences and counselling; (iii) the applicants agree to participate in any such case conferences or counselling sessions in a co-operative manner and to treat other participants with the same respect with which they expect to be treated and to attempt to mediate civilly any differences of opinion. The children are to be returned to the applicants’ care as soon as is reasonably possible once the applicants have entered the agreement referred to in Order 1. The matter to be set down for further directions at a date to be fixed by the Registrar.

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 19 May 2004, two siblings were removed from the care of their foster parents, the applicants in these proceedings. The children had been in the care of the applicants since December 2001. On 11 June 2004, the applicants applied to the Administrative Decisions Tribunal for a review of that decision. On the same day they also applied for a stay of that decision. These reasons deal with the stay application.

2 Section 126(1) of the Administrative Decisions Tribunal Act 1997 (“Tribunal Act”) makes it an offence to publish or broadcast the name of any person to whom any proceedings before the Community Services Division of the Tribunal relate. Section 126(2) contains an exception in relation to the publication of an official report of the proceedings. However, in these reasons, because of the sensitivity of this matter, we have decided not to publish any details that could identify the applicants or the children who are the subject of this application. The applicants are referred to by the pseudonym, “Ms MI” and “Mr MJ”. The official copy of the orders that will be provided to the parties will include the name of the applicants.

3 The children will be referred to as Child 1 and Child 2. Child 1 is a ten-year-old girl and Child 2 is a six-year-old boy.

History to placement with the applicants

4 The following history is taken from the report of psychologist, Jeffrey Gild, dated 23 January 2003. The children were removed from the care of their biological parents in July 1998 because of concerns about their care namely, inadequate physical care, lack of supervision and possible physical abuse of Child 2. Since that time the children have not been in the care of their parents. The children were then placed with their maternal grandmother and remained in her care until March 2001 when they were removed because of concerns about the care provided. Subsequently they were moved to non-familial foster care. From March 2001 to December 2001 the children were placed in separate foster placements.

5 Child 1 has a moderate intellectual disability and has been diagnosed as having Attention Deficit Hyperactivity Disorder. Child 1 has also been diagnosed as having pseudo-pseudohypoparathyoidism (PPHD), a genetically inherited condition that manifests itself in changes in bone formation, being overweight and learning difficulties. In mid-2001, Child 1 disclosed sexual abuse by her stepfather and received counselling in late 2001.

6 Child 2’s intellectual functioning has been assessed as being at the low end of the average range. He was born with a cleft palate, which has been surgically repaired. He has a history of middle-ear infections and associated hearing loss. In June 2000, his speech and language skills were assessed as being mildly delayed. An assessment in August 2002 revealed that his speech and language skills had improved and now fall within the normal range.

Review decision

7 At a case conference held on 19 May 2004, the applicants were, without prior warning, advised of the decision to permanently remove the children from their care. Immediately before the commencement of that conference they were provided with a copy of a report prepared by social worker, Paul Morgan, from the Child Protection Counselling Service (“PANOC”) dated 10 May 2004. In his report, Mr Morgan recommended that DoCS consider removing the children from the care of the applicants.

8 By letter to the applicants dated 28 May 2004, Terese Tassende, Manager Case Work, Eastern Sydney Community Service Centre, stated that the children had been removed because of:

- Excessive reliance on punishment to manage the children’s behaviours;

- concerns for the emotional and psychological development of the children due to poor parenting skills;

- inappropriate and unacceptable discipline methods resulting in emotional abuse of the children; and

- inability to work with agencies and the department and refusal to accept appropriate intervention strategies to manage the children’s behaviour.

Jurisdiction

9 It is not in issue that the decision to remove the children was made in exercise of the Minister’s power to terminate the custody of wards, a power conferred by s 91(1)(e) of the Children (Care and Protection) Act 1987 (“the C & P Act”).

10 The decision is reviewable by the Administrative Decisions Tribunal pursuant to s 112(h) of the C & P Act, read in conjunction with s 38 of the Tribunal Act and s 40(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993.

11 By letter dated 28 May 2004 the applicants sought a review of the decision to remove the children. By letter dated 11 June 2004 addressed to Ms Tassende they made a request for an internal review. That review has not been conducted.

12 Section 55(1)(b) of the Tribunal Act provides that a person may only apply to the Tribunal for review of a reviewable decision where, among other things, an internal review has been finalised. Section 55(2) provides that a person is not prevented from making an application to the Tribunal in respect of a reviewable decision that has not been the subject of an internal review where it is satisfied that “it is necessary for the Tribunal to deal with the application in order to protect the person’s interests and the application to the Tribunal was made within a reasonable time following the decision of the administrator concerned”: s 55(2)(c).

13 We are satisfied that the necessary elements of s 55(2)(c) are satisfied and therefore we can proceed to determine the application.

Relevant Legislation

14 The principles to be applied in decisions concerning the removal of wards are set out in s 89 of the C & P Act:

(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.

15 The powers of the Tribunal on review are set out in s 63 of the Tribunal Act.
(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.

(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:

(a) to affirm the reviewable decision, or

(b) to vary the reviewable decision, or

(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or

(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

Power to grant a stay

16 The Tribunal’s power to grant a stay is found in s 60 which provides:

(1) Subject to this section, an application to the Tribunal for a review of a reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision.

(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.

(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.

(4) While an order is in force under this section (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on application by a party to the proceedings, vary or revoke the order by another order.
17 In Williamson v Director-General, Department of Transport [2000] NSWADT 165, Judicial Member Simon Rice (at [14]) considered the meaning of "to secure the effectiveness of the determination":
15 A stay will guard against situations where the Tribunal sets aside the decision under review, only to find that while waiting for the decision the applicant has, because of the effect of the original decision, ceased trading or is unable to restart operations. In such circumstances the Tribunal’s decision would, in the terms of s60, not be an effective one.

16 The AAT in Delkou gave further examples at paragraph 9:

The Tribunal commonly grants a stay in respect of deportation orders. Otherwise the effectiveness of the review would almost certainly be jeopardized because the applicant would be unable to attend the hearing and to enjoy the benefits of his application for review, if successful: cf Kioa v West (1984) 6 ALN N21. On occasions, the Tribunal has stayed the operation of decisions cancelling social welfare benefits where, deprived of that support, the applicant faces serious hardship . . . the Tribunal has recognised that, in a very practical sense, the review may be rendered nugatory unless the applicant is provided with the means of sustenance pending the hearing: cf Re Dart and Director-General of Social Services (1982) 4 ALD 553.

17 As well, a final determination will not be effective if, but for a stay, the applicant would be likely to suffer “irreparable loss”:

if (the decision to suspend an authority), before the facts have been established, is likely to cause him or the company serious irreparable harm (irreparable in the sense that no recompense for it can be obtained if the application for review is successful) and so to affect adversely the effectiveness of the hearing and determination of the application under review, it may be appropriate to stay the implementation of the decision pending the hearing and decision of the application. (Re Pelling and Secretary, Department of Aviation (1984) 5 ALD 638 at 639. See also Australian (NDT) Services Pty Ltd and Civil Aviation Safety Authority [1999] AATA 796 at para 8, and Roy Frederick Griffiths, Grfi-Air Helicopters Pty Ltd v Civil Aviation Authority (1993) 31 ALD 380 at para 41 and 42).
18 The removal of a child because of a care order, or the loss of reasonable employment prospects because of a licence suspension, might, depending on the circumstances, be examples of “irreparable loss” in some of the review matters in this Tribunal’s jurisdiction.
Material before the Tribunal

Applicants’ material

18 Affidavits of Mr MJ, Robert Cummins, Val Kingsley –Strack, Dinah Cohen. Statements of Dinah Cohen and Wendy Gillet, Karen and Zane O’Brien, Gavin Rich, Meegan Hyde, Griselda Inguanzo, Wendy Stepkovitch, Christina Agnespoihipi, Freezia Tipene, Marlen Tipene, Roger Crossing, Carina Haurua, Jodie and Zoltan Kovacs, Melissa Newman, Lorraine Simmis-Taylor and Sharen Walsh.

19 Mr MJ was the only witness for the applicants required for cross-examination.

Respondent’s material

20 Reports of Mr Gild dated 23 January 2003 and Paul Morgan dated 10 May 2004.

21 Messrs Gild and Morgan gave oral evidence in these proceedings. Ms Tassende also gave oral evidence.

Evidence

22 Mr MJ filed a lengthy affidavit in support of his application. We will refer only to those parts of it that have immediate significance.

23 Mr MJ and his partner had no experience as foster parents before December 2001 when the two children, who are the subject of the current review, were placed in their care.

24 Mr MJ stated that he and his partner had been told by DoCS, prior to the children’s arrival, that Child 1 suffered from “mild delay”. In fact, he stated, she had the skills and developmental levels of a 2 to 3-year old child although she was then seven years old. Mr MJ stated that “she could not go to the toilet, could not dress herself and could not shower. She was unable to converse in any significant way.” More significantly, he stated that she and her younger brother engaged in sexualised play and that Child 1 acted in an inappropriate sexual manner towards him and other men with whom she came in contact.

25 Mr MJ also stated that, at the time of their arrival at his home, the children “displayed vast amounts of anger” and that the boy, Child 2’s “behavioural problems were gross. He yelled all the time and we soon realised that he had a hearing impairment.”

26 He asserted that he and his partner had raised these issues with DoCS, demanding to know why they had not been warned of the profundity of the children’s problems and had been given the explanation: “If we had told you of the full extent of these kids’ problems, we knew you wouldn’t have taken them.” Notwithstanding their discovery, the applicants decided to continue with the placement.

27 Mr MJ also gave evidence that DoCS had failed to support the children in various ways and had not provided promised feedback and assistance. For example, he stated that Child 2 is a chronic asthmatic but that he and MI were not told of this by DoCS. When Child 2 came to live with him and MI, no medication was provided until April 2002, during which time Child 2 had been admitted to Prince of Wales Hospital for a period of 7 days. He said that no one from DoCS had kept in contact to see how Child 2 was fairing nor had informed Child 2’s family of the crisis.

28 He also stated that he had informed DoCS of his belief that Child 2 suffered from a hearing problem and that DOCS did not accept this until he and his partner arranged to have Child 2 tested privately. It was not until March 2004 that DoCS funded hearing aids for the child after which, according to Mr MJ, Child 2’s behaviour immediately improved.

29 Mr MJ also cited a large number of other significant failures by DoCS to provide expected or promised support and assistance to himself and his partner to care for the children. It is unnecessary to recite the entire list; three examples will suffice for current purposes. First, he stated that DoCS had agreed to organise sexual assault counselling for the children but never did so. Second, they agreed to provide respite care for Child 2 but did not do so for over two years. Third, at the time the children were placed with Mr MJ and Ms MI, they were told that DoCS would pay weekly visits. This did not happen.

30 In response to the suggestions by DoCS that he has been unco-operative with it and other agencies, Mr MJ listed 11 agencies apart from DOCS with whom he and Ms MI have dealt since the placement of the children. He asserts that, apart from DoCS, he has complaints against only one, namely PANOC, the Health Department’s Child Protection Service. (The acroynym somewhat confusingly stands for “Protection and Neglect of Children”.) He outlined in detail the extent to which he considered that he and Ms MI had, in fact, co-operated with DoCS. He also contended that in many instances DoCS had failed them and the children and that these were situations which he did not accept meekly and obsequiously.

31 Mr MJ’s affidavit also sought to respond in two ways to suggestions made in the expert reports (see below) that his parenting skills were poor and consequently posed a risk of harm to the children. First, he outlined from his point of view the history of the counselling relationship he and Ms MI had had with DoCS officers and Mr Morgan, upon whose reports DoCS relied in making the decision under review. Second, he pointed to objective evidence of the improvements in the development, socialisation and physical and mental health of the two children as suggesting far better and more positive parenting skills than he and Ms MI are credited with by DoCS.

32 In relation to the counselling issue, Mr MJ makes a number of criticisms of DoCS and PANOC. First, his version is that there was a passing parade of DoCS staff responsible for children. This led, on his version, either to advice and support not being given at all, or, when it was given, to the advice being superficial and inconsistent. Second, the counselling relationship with Mr Paul Morgan (from PANOC) was as unsatisfactory from MJ’s point of view as it was from Mr Morgan’s. He accused Mr Morgan of inflexibility, of offering insubstantial advice, of failing to take account of the high degree of inconvenience involved in attending weekly meetings which seemed to MJ to be achieving little of substance and, most seriously of all, of unfairly slanting his report against him and Ms MI.

33 In relation to this last point, Mr MJ’s evidence is that his understanding of the purpose of the meetings with Mr Morgan was to discuss the behavioural problems of the children. He said: “Naturally this led us to focus on the problems we were having with them. This was then thrown back in our face and Morgan accused us of only focussing on the negative aspects of the children. We did not go to him to talk about their positive aspects. Morgan never asked us to talk about their positive aspects.” On Mr MJ’s version, it was Mr Morgan who was negative about the future of the children and the foster parents who saw progress. In relation to dealing with difficult behaviours by Child 2, Mr MJ asserted that the parenting and socialising methods described negatively by Mr Morgan were either misunderstood by Mr Morgan, who was unable to assess them in their overall context, or were simply tactics employed on advice and used selectively. He asserted that he and Ms MI had done much that was positive in relation to the children, that he had been affectionate and humorous towards them, and that the children’s positive responses to him and Ms MI at the time of the access visit on 28 June 2004, as well as the enormous strides made by the children overall, demonstrate that the overall approach taken by himself and Ms MI towards the children has been beneficial for them.

34 Mr MJ gave oral evidence that he and Ms MI tried to tell Mr Morgan about all the good things the children had achieved but were only ever asked about the bad things. He claimed he had reported these advancements to various DoCS caseworkers.

35 Also tendered on the applicant’s behalf was a series of nine testimonials from various people who have had protracted dealings with MJ and MI and the children since December 2001. All describe the dedication of the foster parents, their devotion to the welfare of the children, their intelligence in analysing issues concerning the children, their genuine love and affection for the children, the happiness and contentment of the children with the applicant and MI and the great strides taken by the children in the care of and under the tutelage of the applicant and his partner. Significantly, several of the applicant’s referees specifically attest to his and MI’s parenting skills. One of these, Ms Wendy Stepkovitch is herself the mother of a disabled child.

Expert evidence

36 Mr Paul Morgan, a child protection counsellor with PANOC, in his report dated 10 May 2004, recommended to DoCS that the children be removed from the care of the applicants. We do not propose to outline in full Mr Morgan’s report because much of what he said is common ground. The two children were removed from their parents because of abuse and neglect. There is strong evidence suggesting that Child 1 was sexually abused in her family of origin. It is common ground that, as Mr Morgan put it, “it is essential that these children be placed in a safe, loving and emotionally supportive environment.” It is also common ground that the children need to be placed with foster parents who will build the children’s trust and sense of self-esteem. Mr Morgan considered that both children had suffered badly from emotional abuse in the past. He considered that Child 2 might have suffered more in this respect than Child 1.

37 Mr Morgan’s conclusion was that the applicants’ home is not a suitable environment for these children. He reached this conclusion on the basis of findings that Mr MJ’s parenting style not only fails to mitigate the effects of previous emotional abuse of the children but is itself emotionally abusive in that, he asserts, Mr MJ relies excessively on punishment to manage the children’s behaviour and does not use positive reinforcement strategies. In Mr Morgan’s opinion, Mr MJ browbeats the children, focuses on their faults and negative behaviours, fails to acknowledge or commend their positive behaviours and routinely shames and humiliates them in response to undesirable conduct.

38 These conclusions were reached on the basis of 12 meetings with Mr MJ and Ms MI together; three meetings with Ms MI individually; one with Mr MJ alone; five meetings with Child 2; and one home visit. Mr Morgan reported that the applicants had failed to attend scheduled meetings on a number of occasions, suggesting a lack of commitment by them to the process.

39 The respondent also relied on a report of Mr Jeffery Gild, dated 23 January 2003. Mr Gild is a psychologist who assessed the applicants in relation to their suitability as carers for these children. This report was a 12-month review of the placement. Mr Gild’s report was referred to and to some extent relied upon by Mr Morgan. Mr Gild also took the view that Mr MJ over-emphasised the use of negative disciplinary approaches and had an authoritarian parenting style which he was reluctant to modify.

37. Mr Gild’s report is, we think, worth quoting at length:

Despite the extensive list of behavioural problems reported for both children … reports from sources outside the family… suggested that the children have made gains in terms of their behavioural and social/emotional stability during the last 12 months. One wonders whether [the applicants] are unclear about appropriate behavioural expectations for the children taking into account factors such as Child 1’s level of intellectual disability, her background of sexual abuse, and the history of both children in terms of parent/care-giver neglect and disrupted attachments/ multiple changes of care-givers. It would appear that the placement has provided an environment in which the children have been able to make positive developmental gains in a number of areas, notwithstanding some enduring behaviour problems for both children. What is concerning is that the people least likely to recognise these positive features appear to be the children’s carers, particularly [Mr MJ].

At the very least, the current placement has offered the children the opportunity to (a) be placed together, (b) experience stability of placement, contrasting with their experiences in 2001 when there were multiple changes of placement, (c) experience a fairly structured behaviour management style which may have helped the children in learning the rules within their new placement. It also needs to be stated that, despite the foster parents’ reported difficulties dealing with the children’s behaviour, they have indicated a commitment to long-term care, and have made statements along the lines of feeling that the children are now part of their family. My observations of the children within the home environment suggested that attachments to both carers (perhaps they seemed to relate to [Ms MI] in a more relaxed, affectionate manner) had developed, and the carers had bonded to the children. I suspect that [Mr MJ] may have some difficulty in expressing openly his affection to the children, not simply because of his concerns surrounding [Child 1] and possibly being falsely accused of sexually interfering with her, but because this may be an area of intrinsic difficulty for him.

The initial gains made by the children in this placement should not be interpreted as an unconditional endorsement of the behavioural management practices of the carers, nor as discounting the concerns that have been raised in this report [concerning Mr MJ’s parenting style]. In looking at the long-term needs of the children it is important that the carers develop (a) a better understanding of Child 1’s intellectual disability and strategies for promoting skill development, (b) greater confidence in dealing with Child 1’s sexualised behaviour, particularly [Mr MJ], who seems to find this a difficult area for him to handle at a personal level, (c) alternative ways for dealing with Child 2’s oppositional, destructive behaviours – the current strategies employed run the risk of Child 2 developing problems with self-esteem, and exacerbating the very anger and resentment that [Mr MJ and Ms MI] are worried about in the first place.

40 He then made various recommendations for action to be taken by DoCS and the applicants.

Oral evidence

Mr Gild

41 Mr Gild met with the applicants throughout the period November 2002 to January 2003. On two occasions he observed them at home with the children for about an hour. In his view, while useful, such assessments did not necessarily provide an accurate picture of the family dynamics and was but one of a number of tools relied on in his assessment.

42 He recalled that on both occasions when he arrived at the applicants’ home Child 2 had been upset after being reprimanded by MJ. He recalled that on one occasion MJ spoke to Child 2 in a humiliating way, the boy was visibly upset yet MJ did not “ease off”.

43 Mr Gild said that he met with the children's teachers and the principal of their school. They reported that the children were doing well, however expressed concern about the applicants, particularly Mr MJ’s interaction with staff and the children.

44 Shortly after finalising his report, Mr Gild moved to another section with DoCS and has had no further contact with the applicants. He said he was unaware whether any of the recommendations made in his report had been implemented. He said he had not seen all the material on which the decision to remove the children was based and therefore could not offer an opinion on the merits of the decision.

45 Mr Gild said he had observed that Child 1 had made good progress and that his primary concern was with Child 2’s behaviour and his interaction with the applicants, particularly Mr MJ. He said while he had no personal knowledge, it appeared from the reports of others that the children had made significant advancements in the period they had been with the applicants and suggested that it would, in part, be explained by the fact that the children had simply grown up.

46 He agreed that it was his experience that it is difficult to find long-term foster placement for children with disabilities, but not impossible. He also agreed that the task of finding suitable long-term carers was exacerbated when the placement involved two children.

47 In his opinion, as a general rule a change in placement should be avoided as it is a distressing experience for children but in some cases that disruption was warranted.

Mr Morgan

48 Mr Morgan last met with the applicants in December 2003 and based his report on information obtained up to that time. When he wrote the report he was neither aware that Child 2 had been fitted with hearing aids nor that a marked improvement had been reported in his behaviour.

49 Mr Morgan could not recall when he commenced seeing the family but thought it might have been in about June 2003. He met with the family together at home on one occasion and observed what he considered to be Mr MJ’s inappropriate interaction with the children. Mr Morgan said he came away from this visit “quite concerned” but did not consider it the worst example of parenting he had seen. He characterised it as “emotional abuse” but not at the extreme end of the scale.

50 He said that his view as to the appropriateness of the placement “waxed and waned” and agreed that he reported to DoCS in September 2003 that significant progress had been made.

51 In cross-examination he denied that he had been inflexible in scheduling appointments for the applicants. He said after the first two sessions he decided not to see the applicants at their home as in his view there were too many distractions. He denied refusing to reschedule a counselling session which was said to conflict with Child 2’s final football game and said he was sure it was just a practice match.

52 He agreed that one of the main assumptions of his report was that the applicants had refused to attend further counselling sessions. He denied that his final view that counselling was of little value was influenced by the fact that the applicants had told DoCS that they thought the sessions were of limited value.

53 He said that he would be prepared to reassess his conclusions that the children be removed if they had in fact advanced as asserted by the applicants and their witnesses.

Ms Tasende

54 Ms Tassende gave evidence that the children were currently in a bridging placement with experienced foster parents. They had changed schools and were placed in separate schools from each other. The children were reported to be settled in the placement. She said she had been told by the agency, which placed the children, that they would be able to stay with in their current placement until a suitable long-term placement to be found. She said she was confident an appropriate long-term placement could be found although she could not say how long this might take.

Submissions

Applicants

55 The applicants agreed in their submissions that the principal factor to be taken into account is the welfare and best interests of the children. They submit, however, that, overall, there is little if any conflict between that overriding consideration and the stay application. They concede that DoCS has a very difficult job and that it must take seriously any evidence of a threat to the welfare of children, especially, perhaps, children in the care of the Minister or the Director-General.

56 They submit that even on the respondent’s own case there is no evidence of any physical threat to either child and no threat of immediate harm which would warrant the drastic measures of precipitate removal of the children from their care. Even on the respondent’s own case, they submit that there is strong evidence of their commitment to the children and their vigorous efforts on behalf of the children.

57 They assert that the respondent’s decision is based on stale evidence and failed to take into account the significant developments that have taken place since Messrs Gild and Morgan last saw the children, in particular the marked improvements in Child 2’s behaviour after being fitted with hearing aids.

58 They point to the overwhelming weight of evidence, bar that of Messrs Gild and Morgan, that the children have flourished in their care. The children’s teachers have remarked upon their progress, their involvement in sporting activities and their general development in their education.

59 They also submitted that while Mr Gild’s report referred to some negative interaction between Mr MJ and the children, which he considered ought to be addressed, there is no evidence that any of his other recommendations were implemented. If anyone has jeopardised the children’s welfare and best interests as a consequence of the failure to implement those recommendations they contend that it must be DoCS. They assert that what has most likely led to the current crisis is that the applicants were frustrated by Mr Morgan’s approach and attitude to them and made this known to the department. They imply that they are being victimised for being insufficiently compliant towards Mr Morgan.

60 Further, they submit that if the final decision is that the children will be returned, that would be made unnecessarily difficult if the children are not returned in the interim. The hearing would not occur until mid-August, some four months after they were removed. They therefore contend that whether the placement with them is long (i.e., they win the substantive hearing) or short (i.e., the respondent’s decision is ultimately upheld after review), it is in the interests of the children that they be returned in the interim.

61 They complain that the manner in which the decision was made and implemented meant that they were not afforded procedural fairness. The children were removed from their care summarily and without adequate opportunity to be heard on the question and without taking into account any of relevant considerations that they might have been able to put forward in respect of the decision.

62 Finally, they assert that the respondent placed the children's welfare at risk by taking action in such a hasty fashion. They say that there was no immediate risk of harm to the children, demonstrated by the fact that Mr Morgan made his recommendation in April 2004 and DoCS’ failure to take action on it until a month later; that the children were not prepared for the shock of being removed without warning from the applicants’ home; that the applicants and children were given no opportunity to farewell each other; that no preparations were made for the long-term placement of the children upon their removal; and that, as a consequence the children have been unnecessarily destabilised emotionally and psychologically.

63 The applicants stated that they are prepared to submit to any conditions.

Respondents

64 The respondent submits that the reports of two experts reveal a pattern of behaviour by Mr MJ which is unbendingly authoritarian and inflexible and, consequently inimical to the long-term interests of the children. The respondent contends that it did not act prematurely and made every reasonable effort to ensure the placement’s success.

65 The respondent submits that the children’s current (short-term) placement is going well and that it provides the best opportunity to assess the children and determine the best possible place for them in the long term.

66 Further, the respondent holds grave concerns that there may be irreparable harm done to the children, especially Child 2, if the current “window of opportunity” is closed by returning them to the care of the applicants.

Findings and Conclusions

67 Section 60 of the Tribunal Act provides that the Tribunal’s power is limited to making orders “appropriate to secure the effectiveness of the determination of the application.” While we must take account of the interests of affected people (in this case the applicant and the children), submissions by the administrator and the public interest, the power to order a stay at all does not arise unless the Tribunal considers that a stay is “appropriate to secure the effectiveness of the determination of the application.” In reaching our decision the interests of the children must be given paramount consideration.

68 In Cowling v Cowling [1998] FamCA 19 (20 March 1998), the Full Court of the Family Court of Australia established a number of principles and criteria to be applied in determining interim residence orders in Family Law disputes where the issue was whether children should reside, until final orders had been made, with one party or another. While of course they do not apply directly here, those principles and criteria have significant persuasive authority in a matter such as this.

69 In that decision, the Court said (at [19] and following):

“Having regard to the earlier authorities of the Court to which we have referred and to the current provisions of the Act, we would summarise the relevant criteria for the determination of interim proceedings for residence and contact as follows:-

Firstly, having regard to the provisions of s 65E [Family Law Act 1975], in determining what interim parenting order should be made, the Court must regard the best interests of the child as the paramount consideration.

Secondly, given the mode by which interlocutory proceedings are conducted, those interests will normally best be met by ensuring stability in the life of the child pending a full hearing of all relevant issues. Accordingly, as a general rule, any interlocutory order made should promote that stability.

Thirdly, where the evidence clearly establishes that, at the date of hearing, the child is living in an environment in which he or she is well settled, the child's stability will usually be promoted by the making of an order which provides for the continuation of that arrangement until the hearing for final orders, unless there are strong or overriding indications relevant to the child's welfare to the contrary. Such indications would include but are not limited to convincing proof that the child's welfare would be really endangered by his/her remaining in that environment.

Fourthly, the Court is entitled to place such weight upon the importance of retaining the child's current living arrangements as it sees fit in all the circumstances. In determining what weight to place upon that factor, it is appropriate for the Court to take account of the circumstances giving rise to the current status quo. In particular, the Court may examine the following issues:-

whether the current circumstances have arisen by virtue of some agreement between the parties or as a result of acquiescence.

whether the current arrangements have been unilaterally imposed by one party upon the other.

the duration of the current arrangements and whether there has been any undue delay in instituting proceedings or in the proceedings being listed for hearing.

Fifthly, where the evidence does not establish that at the date of the hearing the child is living in an environment in which he or she is well settled, some limited evaluation of the relevant matters referred to in s. 68F(2) [ Family Law Act 1975] needs to be undertaken to ensure that the result embodied in the order promotes the child's best interests. In undertaking that evaluation, regard must be had to the interim nature of the proceedings…

Finally, in determining whether, at the date of hearing, a child is living in a settled environment, consideration should be given, inter alia, to the following:-

the wishes, age and level of maturity of the child.

the current and proposed arrangements for the day to day care of the child.

the period during which the child has lived in the environment.

whether the child has any siblings and where they reside.

the nature of the relationship between the child, each parent, any other significant adult and his or her siblings.

the educational needs of the child.”

70 Before considering the above criteria and any relevant application they have to the current dispute, it is necessary to make certain findings on the available evidence. The findings are necessarily tentative because, until the available evidence is tested and fully considered, no ultimately determinative findings can be made.

71 That said, it is evident that the children, Child 2 and Child 1, have developed reasonably well in the applicants’ care. It is not necessary, nor possible, to determine whether, had they been placed with other carers, the children might have done better. It is true that some of their advancement must be attributed to the passage of time. However, it is noteworthy that, despite the fact that they were apparently well cared for in their respective placements immediately before coming to live with the applicants, it has been with the applicants that they have made large strides in their development.

72 It is evident that Mr MJ has displayed an antipathetic attitude towards DoCS generally and to Mr Morgan (PANOC) in particular. Mr MJ appeared to us in his evidence to take an adversarial position in relation to those questioning his version of events or his opinions. That he did so in relation to Messrs Gild and Morgan is also clear. He is transparently “old-fashioned” in his values and his approach to child-rearing. While obviously an intelligent man, he appeared not to be a good listener nor open to advice from others.

73 That is not, however, the gravamen of the respondent’s reservations about him. The respondent’s primary concern is that his parenting style is so authoritarian and punitive that it is likely to undermine and possibly destroy the self-esteem of two very fragile children. The respondent is concerned that the children may be taught to be superficially compliant and well-behaved by means of a bullying, humiliating approach which will cow them into behaving in the required manner rather than being socialised by a process of affirmation and affection mixed with judicious quantities of carefully administered punishment.

74 Certainly on the face of it, the expert reports suggest that Mr MJ is something of a bully towards the children and that he obtains their compliance with an authoritarian approach. Were that the whole story, the Tribunal would have no hesitation in dismissing this application. Apart from the evidence presented by the applicants themselves, which is necessarily self-serving, there is an abundance of apparently credible evidence testifying independently that the applicants’ care of the children has been benevolent and beneficial for them. This is not to say that the standard of care provided by the applicants, in particular Mr MJ’s parenting style, could not be improved. We are firmly of the view that, for the good of the children, Mr MJ must work towards eliminating a tendency to be overly combative and adversarial in his relations with those charged with overall supervision of the care of the children.

75 Mr MJ, intelligent and dedicated as he is, must, in our opinion, nevertheless recognise that he has limitations as a carer and foster-parent. There is no shame in admitting inexperience and lack of expertise as a parent and this is especially the case where the children concerned have special difficulties or problems. While it is a commonplace that parents receive much of their training 'on the job', so to speak, any experienced parent or child-carer will attest to the need for advice or training or both when learning to deal with difficult children or their problems. Although it is not clear to us why this is so, and it is not within the scope of our inquiry, Mr MJ appears to us to have been resistant to receiving advice from others concerned with this case. He appears to have been determined to do things on his own terms and only to accept support on his own terms. That, in our opinion, was instrumental in creating the climate of adversarial relations that appears to have developed to a greater or lesser extent on both sides in this case, to the detriment of the welfare of the children.

76 Nevertheless, it appears to us that the interests of the children would best be served by staying the respondent’s decision, on conditions, pending the outcome of the final hearing. There appears to be no immediate danger to the children from Mr MJ or Ms MI. As far as we can tell from the evidence concerning the contact visit, the children desire to return to the applicants’ home. They have had stable accommodation, a stable educational environment, established friendships, foster-parents who, despite any limitations they may have, provide a structured and safe environment for them and, significantly, have enabled the siblings to stay together.

77 We are deeply concerned, despite the assurances of DoCS, that finding a superior, alternative long-term placement for these children would be no easy task. The experience of this Tribunal in dealing with many of these types of cases is that the older children grow, the more difficult it becomes to place them. The difficulties are compounded where it is sought to accommodate siblings and the degree of difficulty is further compounded where the children concerned have disabilities or entrenched psychological problems.

78 At this stage we have no evidence of the availability of an alternative long-term placement. Until the review is completed the children could not be placed in long-term care in any event but that, in our opinion, strengthens the applicants’ argument for a stay pending the final determination.

79 We accept the applicants’ assurances that they would meet any conditions imposed by the Tribunal if we ordered a stay. Of course, it is perfectly obvious that any failure to comply with such conditions would almost certainly have adverse consequences for the applicants in the substantive hearing of the matter, but those assurances mean that we can proceed to stay the decision with greater confidence that to do so would be in the best interests of the children.

80 Our view is that the children ought be returned to the care of the applicants as soon as this can reasonably be done, taking into account the further disruption that will be caused to the children’s routines. We note that, fortuitously, it is now school holidays and that one aspect of the transition might therefore be less difficult than it otherwise might have been.

81 We also consider that, as a matter of urgency, Mr MJ ought to undertake specific positive parenting training directed to helping him find an appropriate balance between setting appropriate limits on children’s behaviour (and disciplinary measures to enforce them) and the promotion of the self-esteem of children through encouragement and positive reinforcement of desirable behaviours and outcomes. We also believe that it would benefit him and the children if he were to undertake a relevant course in childhood development to enable him to more accurately discern the needs of Child 2 and Child 1. We are not in a position to specify any particular courses of training but it will be a condition of our ordering a stay that he agrees to undertake suitable training. We believe that both applicants ought participate in such training.

82 It will also be a condition of the stay order that the applicants agree to comply with any requirement of the respondent concerning case conferences and counselling.

83 Finally, it will be a condition of the stay order that the applicants agree to participate in any such case conferences or counselling sessions in a co-operative manner and to treat other participants with the same respect with which they expect to be treated and to attempt to mediate civilly any differences of opinion.

Orders

84 The Minister’s decision is stayed on condition that:

(i) that the applicants, agree to undertake, as soon as is reasonably possible, positive parenting training as directed or referred by the respondent;

(ii) the applicants agree to comply with any requirement of the respondent concerning case conferences and counselling;

(iii) the applicants agree to participate in any such case conferences or counselling sessions in a co-operative manner and to treat other participants with the same respect with which they expect to be treated and to attempt to mediate civilly any differences of opinion.

The children are to be returned to the applicants’ care as soon as is reasonably possible once the applicants have entered into the agreement referred to in Order 1.

The matter to be set down for further directions at a date to be fixed by the Registrar.