Minister for Community Services v Ce (No.1) (CSD)

[2002] NSWADTAP 7

Appeal Panel

CITATION:	Minister for Community Services -v- CE (No.1) (CSD) [2002] NSWADTAP 7
PARTIES:	APPELLANT Minister for Community Services RESPONDENT Mr and Mrs CE
FILE NUMBER:	019050
HEARING DATES:	28/11/2001
SUBMISSIONS CLOSED:	11/28/2001
DATE OF DECISION:	03/19/2002
DECISION UNDER APPEAL:	CE -v- Director General, Department of Community Services
BEFORE:	O'Connor K - DCJ (President); Britton A - Judicial Member; Groth D - Member
CATCHWORDS:	leave to extend to the merits
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	014031
DATE OF DECISION UNDER APPEAL:	10/18/2001
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Children (Care and Protection) Act 1987
CASES CITED:	Minister for Community Services -v- CE (No. 2) [2002] NSWADTAP 1 Public Service Board of New South Wales v. Osmond (1985-1986) 159 CLR 656 Moylan & ors v Nutrasweet Company & ors [2000] NSWCA 337 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139 Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 Woodside & anor v Director General, Department of Community Services [2000] NSWADTAP 8 Housing Commission of New South Wales v Tatmar Pastoral Co [1983] 3 NSWLR 378 Selvanayagam v University of the West Indies [1983] 1 All ER 824 Absolon v NSW TAFE [1999] NSWCA 311 Public Service Board of New South Wales v. Osmond (1985-1986) 159 CLR 656, 662 R. v. Associated Northern Collieries (1910) 11 CLR 738 Repatriation Commission v. O'Brien (1984-1985) 155 CLR 422 Graham v Director General, Department of Community Services [2001] NSWADTAP 4 Briginshaw v Briginshaw (1938) 60 CLR 336 Selvanayagam v University of the West Indies [1983] 1 All ER 824 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Woodside & anor v Director General, Department of Community Services [2000] NSWADTAP 8 Housing Commission of New South Wales v Tatmar Pastoral Co [1983] 3 NSWLR 378 Selvanayagam v University of the West Indies [1983] 1 All ER 824 Public Service Board of New South Wales v. Osmond (1985-1986) 159 CLR 656, 662
REPRESENTATION:	APPELLANT M W Anderson, counsel RESPONDENT B Rigg, counsel
ORDERS:	Decision under appeal set aside. Leave granted to extend the appeal to the merits.

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(1A) …
(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.

DECISION DELIVERED EX-TEMPORE

1 These reasons are provided in elaboration of the short oral reasons delivered at the close of argument on 28 November 2001 setting aside the Tribunal’s decision made on 18 October 2001 in matter no 014031; see further [17] below.

2 The applicants for review are the former carers of two wards C1 and C2 placed in their custody under a long term foster care arrangement by the Department of Community Services. They had sought review of the Department’s decision made 23 March 2001 to withdraw the boys from their care and terminate their custody. The power to terminate custody is conferred on the Minister by s 91(1)(e) of the Children (Care and Protection) Act 1987 and is a reviewable decision over which the Tribunal has jurisdiction. In its decision of 18 October 2001 the Community Services Division of the Tribunal set aside the Director General’s decision (made under delegated authority from the Minister); and made further orders with a view to restoring the children to the care of the applicants for review.

3 The Director General, Department of Community Services lodged an appeal on 19 October 2001 and the Appeal Panel granted a stay of the orders pending determination of the appeal after a hearing on 31 October 2001.

4 Under the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) s 113(2)(a), an internal appeal to the Appeal Panel may be made on a question of law. In its notice of appeal the Department listed nine grounds of appeal. Written submissions were filed by both the appellant and the respondents. At the conclusion of the oral hearing on 28 November 2001 the Appeal Panel gave short oral reasons for its decision that errors of law had been demonstrated, which warranted upholding the appeal; and indicated that it would give more detailed written reasons later. It then proceeded to make directions for the further conduct of the matter, and decided under s 113(2)(b) of the Tribunal Act that it was an appropriate case in which to grant leave for the Appeal Panel to dispose of the matter on the merits. The Appeal Panel proceeded by reconsidering the transcript of the hearing before the Tribunal and by hearing some further evidence, that hearing occurring on 19 December 2001. The reasons for decision in respect of the merits were delivered on 7 January 2002: Minister for Community Services -v- CE (No. 2) [2002] NSWADTAP 1.

5 As the Appeal Panel was satisfied that the first two grounds of appeal had been established at the hearing on 28 November 2001, it did not form a concluded view on the other seven grounds. The two grounds which it was satisfied were established were the following:

1. That the Tribunal failed to make any findings with regard to the allegations of abuse in respect of the children the subject of the appeal.

2. That the Tribunal failed to provide any or any adequate reasons in respect of:

(a) the allegations of abuse of the subject children;

(b) the best interests of the children;

(c) the Tribunal’s decision to order that the return of the children be implemented on a graduated basis.

6 In its later decision on the merits appeal the Appeal Panel has set out in detail the facts relevant to this matter and what it considers to be the applicable law. We will not repeat that material here: see Minister for Community Services -v- CE (No. 2) [2002] NSWADTAP 1.

Adequacy of Reasons

7 Section 89(5) of the Tribunal Act lays down the following rules in cases where parties request written reasons for decision in cases where the reasons were originally given orally:

‘(5) …, the written reasons are to set out the following:
(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,

(b) the Tribunal's understanding of the applicable law,

(c) the reasoning processes that lead the Tribunal to the conclusions it made.’

8 This rule reflects the position as it applies to administrators when giving reasons for decision in respect of a reviewable decision: see s 49(3 ) which provides:
‘The statement of reasons is to set out the following:
(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,

(b) the administrator's understanding of the applicable law,

(c) the reasoning processes that led the administrator to the conclusions the administrator made.’

9 So far as administrators are concerned the above statutory principles represent a change to the common law position which did not impose a duty on administrators to give reasons: see generally, Public Service Board of New South Wales v. Osmond (1985-1986) 159 CLR 656. In the case of tribunals making determinations and making final orders, s 89(5) reflects the common law position. It is clear that a tribunal has a duty to give adequate reasons for decision, and a failure to do so is an error of law. As the Court of Appeal said in Moylan & ors v Nutrasweet Company & ors [2000] NSWCA 337 at [101]:
‘The extent and nature of this duty is well known; see for example Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 and the judgment of Mason P in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 431, 436-7 and 439-441.’
10 McHugh JA said in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 278:
‘When parties submit their dispute to a tribunal for adjudication, they do so on the assumption that the dispute will be decided in accordance with rules. They assume that the adjudicator will decide the dispute according to the rules or principles which govern their conduct and that he will ascertain, so far as he reasonably can, what are the facts of the dispute. To give effect to these assumptions a judicial decision must be a reasoned decision arrived at by finding the relevant facts and then applying the relevant rules or principles.’
11 In Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139 Kirby P stated that courts and tribunals typically follow a three stage process when reaching a decision: (1) fact finding; (2) rule-stating; and (3) rule application. His Honour then stated that, "The most typical error of law, attracting the appeal court's corrective jurisdiction occurs at the 'rule stating' stage." (at p 150).

12 The Appeal Panel dealt with the principles relevant to adequacy of reasons in Woodside & anor v Director General, Department of Community Services [2000] NSWADTAP 8, as follows:

‘ Appellable Error in relation to the Adequacy of Reasons

64 The Appeal Panel will deal briefly with the principles relating to this matter. As the present appeal demonstrates, frequently an appeal arising from dissatisfaction with findings as to fact will also express dissatisfaction over the quality of the reasons. The two objections, as is the case in this appeal, are intertwined.

65 Appellate courts have not required inferior courts and tribunals to provide reasons that deal expressly with every inconsistency of evidence or contest as to facts. Appellate courts have recognised that it would be unrealistic to insist on such exactitude in decision-making. They have referred to the historical position where courts were not required to give reasons in relation to disputes as to fact, that function once being the province of the jury which simply delivered a verdict. Today two general principles support the need for courts and tribunals to give reasons. In the case of courts, the responsibility is now seen as an inherent requirement of the role of a judicial officer. While this position has not been asserted in relation to tribunals, it is usual for modern tribunal statutes to require reasons to be given, as is the case in this Tribunal. The other justification for imposing a requirement to give reasons is to enable an appeal court to have a record against which it can assess the points raised by the appeal.

66 In Soulemezis at 280 McHugh JA stated, citations omitted:

'If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons... But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. In many cases the reasons for preferring one conclusion to another also need to be given ...'.
67 But the courts have not insisted that there be a didactic examination of every element of the cases and evidence put on both sides. Mahony JA observed in Soulemezis at 271 that 'the law does not require that a judge make an express finding in respect of every fact leading to, or relevant to, his final conclusion of fact; nor is it necessary that he reason, and be seen to reason, from one fact to the next along the chain of reasoning to that conclusion.' Earlier at 271 Mahony JA noted: 'Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear.'

68 Mahony JA referred also to observations that he had made in an earlier case, Housing Commission of New South Wales v Tatmar Pastoral Co [1983] 3 NSWLR 378 at 386 where he said:

'But subject to matters such as these, the basis of the decision of a trial judge or of an intermediate court of appeal should be made apparent. This does not mean that the reasons given need be elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it.'
69 Mahony JA in Soulemezis also noted without criticism the observations of the Privy Council in Selvanayagam v University of the West Indies [1983] 1 All ER 824 at 826. There the Privy Council said that the criticism made by an appellate court of a trial judge's failing to make specific findings of fact fundamental to the issue in the case was misplaced. It said:
'[I]t is abundantly clear that the judge had the evidence, all of it, very much in mind. It is, of course, not necessary for the trial judge to make explicit findings on every piece of disputed evidence. If it is clear that he has the evidence in mind, it suffices for him to state his final conclusion ...'.
70 But McHugh JA expressed the view in Soulemezis at 280 that the Privy Council decision should not be seen as giving any guidance to courts in New South Wales on the extent of the judge's duty to give reasons. His Honour said that even in cases where there was no appeal on a question of law, a simple finding setting out a conclusion would be sufficient if the decision simply turned on credibility. However he said: 'But, if, in addition to the issue of credibility, other matters were relied on as going to the probability or improbability of the plaintiff's case such a simple finding would not be enough.'

71 Greg James J in Maxwell-Smith v Consumer Claims Tribunal & ors, cited earlier, made an observation in relation to the case before him which will often be true of appeals:

'The case appears to me, on the material provided, to be one in which unsuccessful parties formed the view that a decision adverse to them had to be, because it was adverse to their interests, wrong, biased or in bad faith.'’
13 In Absolon v NSW TAFE [1999] NSWCA 311 Powell JA said in reference to a challenge to a decision of the Equal Opportunity Tribunal that:
‘66 Although there is no general rule of the common law, or principle of natural justice, that requires reasons to be given for administrative decisions (see, for example, Public Service Board of New South Wales v. Osmond (1985-1986) 159 CLR 656, 662 per Gibbs CJ), it seems to be accepted that, at least in relation to administrative tribunals which, by the statutes creating them, are required to give reasons for their decisions, it is appropriate to apply the rules - and, in particular, the rules relating to the giving of reasons - which are ordinarily to be regarded as an incident of the judicial process. However, as Mahoney JA (as he then was) said in Soulemezis v. Dudley (Holdings) Pty. Limited (1987) 10 NSWLR 247, 273:
"There is, I think, no formula the application of which to the instant case will indicate what, in that case, the judge must do. Where, in the decision of an ordinary dispute, reasons are necessary, they are necessary because of the expectation that, being a judicial decision, a sufficient explanation will be given of why the order was made. And, in my opinion, it will ordinarily be sufficient if - to adopt the formula used in a different part of the law: see R. v. Associated Northern Collieries (1910) 11 CLR 738 at 740 - by his reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he has acted.

To require that a judge detail the way in which he has reasoned step by step to his conclusion is, in my opinion, to mistake the nature of the judicial process."

67 It should, however, be noted that an error of law in giving no, or in giving inadequate, reasons for judgment differs from an error of law in coming to a verdict or decision, for the latter directly vitiates the verdict or decision, either, in the sense that the verdict or decision thereby is legally wrong and reversible, or, in the sense that the verdict or decision is based on an error in the legal process so that a new trial is attracted. A failure to give any, or any adequate, reasons does not, without more, establish that the verdict or decision involved some error although there may be cases - of which it is submitted here that the present is one - which warrant the inference that the relevant Tribunal has failed in some respect to exercise its powers according to law (see, for example, Repatriation Commission v. O'Brien ( 1984-1985) 155 CLR 422, 445-446 per Brennan J (as he then was)).

68 …[T]his appeal should be, dismissed unless it can be said, first, that the reasons given by the Tribunal were inadequate, and, second, that that inadequacy warrants the inference that the Tribunal has not exercised its jurisdiction in accordance with law.’

14 The nature and extent of a tribunal’s duty to give reasons will vary according to the complexity of the fact-finding process involved and the complexity of the applicable law. There will be cases where the reasons of the Tribunal may be able to be derived satisfactorily from an examination of the transcript, the submissions made by the parties and the response given by the Tribunal. This will often be the case in circumstances where decisions have been made ex tempore and relate to a narrow issue: see for example Graham v Director General, Department of Community Services [2001] NSWADTAP 4.

15 This was not a case of that kind. A four day hearing had occurred, with several witnesses called. Key matters of fact were in contest.

16 The Department moved to withdraw the wards from the care of the respondents after it received a report that one of the wards had been the subject of abusive treatment by the foster father. The report had been made by the foster mother’s sister who lived at the house. The accuracy and credibility of the sister’s report which included observations on past conduct of the foster father, and implicated her sister as having condoned his conduct, were clearly critical in assessing the correctness of the Department’s decision. Subject to determining what the facts were in this regard, the next question to be dealt with by the Tribunal was what were the legal principles relevant to the decision taken by the Department.

17 The reasons were as follows:

‘ REASONS FOR DECISION

1 This application was brought by Mr and Mrs CE for a review of a decision of the Minister for Community Services to terminate their custody of two wards of the State. The decision was made pursuant to s 91(1)(e) of the Children (Care and Protection) Act 1987. The jurisdiction of the ADT to review that decision is found in s 112(1)(f) of that Act. Section 89 of the Act must be adhered to in both the abovementioned decision making processes. Section 89 ensures that “… the welfare and interests of wards … shall be given paramount consideration.”

2 C1, date of birth 1 November 1995, and C2, date of birth 29 July 1997, were made wards of the State from 29 February 2000. They had been in long term care since December 1998 due to neglect, inadequate supervision, physical and emotional abuse by the father and domestic violence. Mr and Mrs CE were made the long term foster carers of these two boys until they turned eighteen. Mr and Mrs CE were accepted as foster carers on three conditions:

i) initial review in six months;

ii) acceptance of ongoing training;

iii) participation and implementation of case plan in terms of contact with parents and siblings.

The boys placement with Mr and Mrs CE started in August 2000.

3 The boys were removed from Mr and Mrs CE’s custody on 23 March 2001 after allegations of abuse made by S, Mrs CE’s sister. The Department investigated those allegations inter alia by an interview with C1 on 23 March 2001. This interview was the source of much evidence and is addressed later in this decision.

4 S, in her statement to police in March 2001, alleges that C1 had been made to kneel on the kitchen floor in his underwear and t-shirt with his hands behind his head, and later made to move to kneel on the cement out the back (of the house). It was alleged the child was made to swim laps of the pool as punishment. It was also alleged that later C1 was made to stand on two stools, with one foot on each and his legs apart. He was dressed in a t-shirt and underpants and had a gag in his mouth.

5 The children are currently residing with Mr and Mrs F1. The Department informs the Tribunal that, subject to its decision, the children will remain with Mr and Mrs F1 on a long term basis.

6 The boys have had a most unfortunate history. They are the fourth and fifth children of the seven children of Mrs P1. Two older brothers are fostered with Mr and Mrs F1 and twin younger brothers live with their mother. The only sister is now deceased as a result of a fire. C2 and C1’s father, who suffered from schizophrenia, died whilst in prison and whilst the boys were in the care of Mr and Mrs CE. Mr and Mrs CE ensured the boys attended his funeral.

7 By the time C2 and C1 were placed with Mr and Mrs CE they had had nine placements outside their parents’ care. Including Mr and Mrs CE, there had been four allegations of abuse whilst in care, each resulting in a failure of that placement.

8 C2 and C1 and the two older brothers were all made wards of the State at the same time.

9 Mr and Mrs CE responded to a Departmental advertisement for foster carers of C1 and C2.

10 Margaret Reagan, independent psychologist, did an assessment for the Department on Mr and Mrs CE’s suitability to foster children for an indefinite/or medium to long term basis.

11 Ms Reagan comments that she was unaware that Mr and Mrs CE were being considered for foster caring of those particular children prior to this initial interview. She told Ms Starkey that she had been informed the assessment was general and that the boys had already been placed. Mr and Mrs CE, on the other hand, had been told by the Department that the boys would be placed with them pending a positive assessment. Mr and Mrs CE had been provided with photos of the two boys prior to that assessment. The only sensible conclusion is that the Department had pre-determined Mr and Mrs CE’s appropriateness with the assessment being a formality. The boys needed a placement by 28 July 2000 and the interim assessment was made on 26 July 2000.

12 Ms Reagan, in preparing her report, did not include S as a member of the household. The Tribunal finds that contrary to the evidence of Mr and Mrs CE, Ms Reagan had not been informed by them that S was living in the house. It is the Tribunal’s finding that if she had been informed of this fact, S would have been included in her report. It is not possible to surmise what the impact of that knowledge would have been. The Tribunal forms no view except to note that evidence from S was that she had had limited involvement with the boys.

13 On the basis of her assessment, Ms Reagan pointed out that conflict might arise between Mr and Mrs CE and the Department of Community Services. In her opinion Mr and Mrs CE may have had difficulties accepting changes by the Department to their plans, and that Mr CE might minimize the attachment of the birth family and any identity issues for the boys.

14 In the light of this report, it is the Tribunal’s finding that the Department accepted a higher than usual duty to ensure Mr and Mrs CE were adequately supervised and educated with regard to the Department’s requirements for care of these two boys. The Department has a statutory requirement under s 89 of the CCP Act, to ensure the interests of the boys were paramount. The Department therefore had a vested interest in ensuring that this placement was a success, particularly as these two small boys were in critical need of stability.

15 The Tribunal found the evidence of Mr CE to be misleading and inaccurate in many areas. These areas included … his evidence that he resigned from the Migrant Resource Centre to be available to help with the boys conflicted with the subpoenaed documents which showed he had been dismissed following a sexual harassment allegation. Mr CE commenced an unfair dismissal claim in the Industrial Relations Commission which was settled on terms which included his resignation.

16 Another misleading claim by Mr CE was that he was a member of the Australian Psychological Society and held out even to his own specialist Dr Lennings, that he was a psychologist. Evidence adduced clarified that he was only an associate member and was not and had never been a registered psychologist.

17 Even when confronted with many inaccuracies in his evidence, Mr CE would not make any appropriate concessions. It is this apparent inability or disinterest in moving from his chosen position that gives the Tribunal most concern.

18 Although Mr CE said in evidence he was prepared to work with the Department and that he understood that the Commissioner had the final say in questions concerning the children, it would appear that areas of such conflict would be problematic. The Department was made aware of these potential difficulties by Ms Reagan.

19 Mrs CE on the whole appeared to be a witness of truth. She demonstrated she had the strength to make a stand on the boys’ behalf potentially to her own detriment. When C1 made allegations regarding “inappropriate” behaviour by Ms Clout, the District Officer, Mrs CE made a report in February 2001. This allegation was subsequently held to be unfounded. However it is the view of Ms Starkey and this Tribunal that the report was appropriately made. Mrs CE made that report with the boys’ interest being paramount, regardless of the potential consequences it may and apparently did have on the relationship between Ms Clout, the Department and herself.

20 Evidence regarding Mrs CE taking “maternity leave” on the arrival of the boys is held to have been adequately explained by Mrs CE. No “foster leave” was available so Mrs CE applied for maternity leave.

21 The relationship between Mr and Mrs CE and the Department had deteriorated since the allegations, albeit unproven, were made against Ms Clout, District Officer. The Tribunal is entitled and does draw an adverse inference from the failure of Ms Clout, who is still an employee of the Department, to provide any evidence to this Tribunal.

22 From the evidence it was clear that Mr and Mrs CE had made a long term commitment to the care of the two boys. They were able to provide well for them and they showed a genuine concern and interest in C1 and C2. There was regular fortnightly access by the boys with their natural parent and siblings from August 2000 to October 2000. The access visits changed in frequency after November 2000, but this was at the request of the Department and Mr and Mrs CE accommodated these changes.

23 In February 2001, when the Department failed to organise the sibling access Mrs CE herself organised the visit with C2 and C1's elder brothers and Mr and Mrs F1.

24 Mr and Mrs CE showed a great interest in C1's schooling. T1, C1’s teacher, expressed concern to Ms Starkey that her comments with regard Mr and Mrs CE’s level of interest in C1 was misconstrued as being too detrimental.

25 Mr and Mrs CE were strongly bonded to the boys. The experts all agreed this is precisely what the boys need provided there is no abuse. Dr Lennings and Ms Starkey say this bonding does give some motivation to Mr and Mrs CE to provide an abuse free environment. Mr and Mrs CE had attended all training organised by the Department. A session was terminated by the Department as it was said not to be relevant to Mr and Mrs CE. The Department agreed to organise alternative training but this was never done.

26 The Department had not initiated any meetings or phone contact to raise any issues with Mr and Mrs CE during the period the boys were in their care (approximately 8 months). Mr and Mrs CE themselves organised a meeting with the Department in December 2000 to discuss concerns regarding communication with the Department, and in particular with the case worker, Ms Clout. Following this meeting it was agreed by the Department to have another meeting in January 2001. This never happened because the Department failed to organise the meeting as agreed by the Manager of the Fairfield CSC.

27 There was clearly a communication problem between the case worker, Ms Clout and Mr and Mrs CE. Mr Skelly did show some concern by agreeing to a meeting asked for by Mr and Mrs CE in December 2000 (referred to above) which by all accounts was positive and constructive. However, no further action was taken by the Department to address any issues they may have had or to continue to work on the relationship with Mr and Mrs CE. The Department did not even do what they had agreed to do by organising a follow-up meeting in January 2001. Even after the children were removed from Mr and Mrs CE's care, the Department failed to collect a scrap book the school had prepared for C1 as a momento and farewell to his first school which may have helped C1 settle into his new school.

28 S was not a convincing witness. Her evidence regarding where and when she was living during the long period since her mother’s death was often incomplete and inconsistent. Her allegations with regard C1 having to swim laps of the pool was found to be deliberately misleading as it became clear that the pool was not only very short but also shallow at the “beach end”.

29 There was a clear conflict between S and Mr CE. Evidence from S was that Mr and Mrs CE did not want any input from her regarding the children and that although she was living under the same roof her interaction with the boys was minimal.

30 However S’s oral evidence taken in conjunction with documentary evidence of her phone calls and car problems relating to the activities of 21 March 2001 was preferred over that of Mr and Mrs CE.

31 The Tribunal places negligible weight on the evidence of X who was extremely distressed when giving evidence.

32 The interview of C1 by Leonie Booth on 23 March 2001 was the object of much evidence by both the Department and the Applicants.

33 The Tribunal found Ms Booth to be a sound, truthful witness with experience and obvious common sense. The substance of the interview was acknowledged as an accurate record by Ms Morua who was present.

34 The Tribunal accepted the evidence of both Dr Lennings and Ms Starkey that the style of interview, which was described by Ms Booth as a direct questioning method, may produce potentially inaccurate and misleading information from a small child. Ms Starkey’s view was that she would never use that style of interview with a small child and that it potentially limited disclosure by the child.

35 Mr Skelly, Manager of Client Services of the Fairfield Centre of the Department, gave evidence for the Department. He stated that prior to the allegations made by S regarding 21 March 2001, the Department had concerns regarding Mr and Mrs CE’s disciplinary techniques. He states that those concerns were not enough to terminate the custody.

36 Mr Skelly met with Mr and Mrs CE on 5 December 2000 regarding problems the District Officer was having. He followed up with a letter dated 29 December 2000. The letter reflected a low level of concern. On 20 March 2001 Mr Skelly started to arrange an interview between Mr and Mrs CE and Ms Reagan for the purposes of assessment. He said that this procedure came to a stop when the allegations and subsequent removal on 23 March 2001 occurred.

37 The Department has a procedure in place to review a decision to remove a child from care. However, it became clear from the evidence of Mr Skelly this “review” is merely procedural and in his many years experience a decision had never been overturned.

38 When making the decision to remove the boys “from risk”, the Department had the allegations from S, the interview of C1 on 23 March 2001 and a general knowledge of the relationship between Mr and Mrs CE and the Department which had deteriorated since the allegations against Ms Clout.

39 The Tribunal takes into account that the two reports from C1’s school by his teacher, T1 and the principal, T2, were dated 27 March 2001. The reasons for the removal by Greg Skelly were dated 24 May 2001, two months after the removal. The Application for Review to this Tribunal of that decision was filed on 17 May 2001.

40 The children are currently living with Mr and Mrs F1. They have been there since the removal from Mr and Mrs CE on 23 March 2001. Also present in the house are Mrs F1’s son, F2 (twelve years), C1’s and C2’s older brothers C3 and C4 and two other children, C5 (three years) and C6 (two years).

41 The family of seven children and two adults live in a three bedroom house at Fairfield. They hope to move to a five bedroom house in the country provided the Department helps them financially.

42 Ms Starkey has had the benefit of seeing the children at the F1’s and includes her observations and opinions in her report.

43 Whilst Mr and Mrs F1 appear to be coping with the seven children, the load is bound to be very difficult.

44 Both boys appear to have developed an attachment to Mr and Mrs CE’s and in particular C2. However, C1 showed signs of distress at both the first school and his current school from the time he was removed from Mr and Mrs CE’s care.

45 The best outcome would be for the boys to return to the care of Mr and Mrs CE who would provide them with a safe, loving environment.

46 It is the view of both Mr Lennings and Ms Starkey that both Mr and Mrs CE love the boys and want them returned to their care. Their desire to have those wants met make Mr and Mrs CE amenable to any change which the Department requires of them.

47 In reviewing the decision made by the Department, the Tribunal must treat the needs of the children as paramount. This requires looking at the factors that led to the decision and to any subsequent factors that affect the children since that removal. This includes that six months have passed, the current foster placement, the attachment the children have with both Mr and Mrs F1 and Mr and Mrs CE, the risk that Mr and Mrs F1’s placement might break down and the effect that would have on the boys.

48 There is evidence in the seven to eight months the boys were with Mr and Mrs CE the behaviour of C1 improved. C1’s performance at school was within the normal range. Mr and Mrs CE had the childrens’ best interests at heart.

49 The placement with Mr and Mrs CE was done hastily albeit for practical reasons. The boys at their tender age had been through numerous failed placements with allegations of abuse in three of those placements.

50 The Department accepted an increased duty of care to the boys when they placed them with Mr and Mrs CE. This required the Department to ensure that problems that arose were dealt with and to see that Mr and Mrs CE had received ongoing education for caring for the boys. The Department, as a result, had an increased obligation to ensure the relationship between Mr and Mrs CE and the Department be maintained at a satisfactory workable level.

51 When the allegations of abuse were made it was not in the best interest of the boys to remove them from Mr and Mrs CE’s care. Other ways of ensuring Mr and Mrs CE learned of the inappropriateness of such disciplinary techniques should have been found.

52 It is agreed between the parties and each expert that further change for these boys would seriously compromise their development.

53 With regard the reports of Ken Champion tendered by the Crown, the Tribunal notes the author acknowledges their limitations because he did not interview the children or Mr and Mrs CE. However he gives a detailed report addressing the inappropriateness of disciplinary techniques alleged to have been used. The Tribunal suggests that Mr and Mrs CE take notice of the seriousness of such techniques and should recognize the need to change.

54 A completely new plan to reunite the boys with Mr and Mrs CE should be undertaken. This plan should be monitored and evaluated. This should not be done by the Fairfield office of the Department. All monitoring and support should be overseen by an independent person. Ms Starkey would be ideal given her knowledge of the situation and experience in the field.

55 The Tribunal reverses the decision made by the Commissioner and orders the children be restored on the grounds recommended by Ms Starkey:

i) Establish the wishes of the children with regard to contact with Mr and Mrs CE. These issues should be taken into account when establishing a regime of gradual contact moving from supervised access through to restoration of full time care.

ii) Mr and Mrs CE undertake to not use any humiliation punishment or other child management strategies not approved by the Department.

iii) Monitoring and dealings with the Department and Mr and Mrs CE must not be through the Fairfield Office.

iv) Mr and Mrs CE must agree to abide by the rulings of the Department in regard to all issues of day to day management of the children including schooling and access to their mother and their siblings.

v) Mr and Mrs CE must agree to attend counselling with person or persons agreed to by themselves and the Department.

vi) C2 attend pre-school and C1 attend a school facility chosen by the Department in consultation with Mr and Mrs CE.

vii) C1 and C2 continue to have counselling for an extended period.

viii) The placement be monitored on a frequent basis for an extended period.’

18 It will be seen that the reasons have the following steps:
(1) reference to the statutory provision under which the Department acted in removing the children from care and thereby terminating the custody of the carers [para 1]

(2) brief history of the placement with the carers, and the decision to grant them long term foster care of the children [paras 2-3; 5-14]

(3) outline of the allegations of the sister that led to the Department’s action in withdrawing the children [para 4]

(4) reference to the initial psychological assessment undertaken on behalf of the Department before it made its decision to place the children with the carers on a long term basis [paras 12-14]

(5) assessment of the evidence of the foster father [paras 15-18]

(6) assessment of the evidence of the foster mother [paras 19-20]

(7) overall conclusions as to their suitability as carers [paras 22 and 25]

(8) assessment of the relationship between the carers and the Department [paras 21-23, 26 and 27]

(9) assessment of the sister’s evidence [paras 28-30]

(10) assessment of the interview of C1 conducted by the Department’s officer handling the report at the school including a brief reference to expert opinions as to the adequacy of the interview [paras 32-34, 53]

(11) reference to the Department’s dealings with the carers over matters of concern to it in the months prior to the withdrawal [paras 35-38]

(12) conclusion that the children’s welfare would be best assisted by return to the care of the carers from whom they had been removed [paras 39-51]

(13) orders setting aside the Department’s decision and prescribing steps to be taken by the Department and the carers to restore the children to the care of the carers [paras 52-55].

19 What in the Appeal Panel’s view was clearly absent from this treatment of the matter were two matters - a set of clear findings as to the events of the morning of 21 March 2001; and any statement of the considerations relating to the welfare and protection of children that should be applied once the findings of fact have been made.

Applicable Law

20 In the merits decision made by the Appeal Panel we examined at some length the question of what standard should apply when considering whether children in care are exposed to an unacceptable risk of abuse. In the decision under appeal the Tribunal moved from the matters canvassed in items (1) to (11) above to the conclusions reflected in (12) without, in our view, clearly explaining what standard it was applying.

21 The only articulation of the applicable law are these. At [47] the Tribunal said: ‘In reviewing the decision made by the Department, the Tribunal must treat the needs of the children as paramount.’ It continued: ‘This requires looking at the factors that led to the decision and to any subsequent factors that affect the children since that removal. This includes that six months have passed, the current foster placement, the attachment the children have with both Mr and Mrs F1 and Mr and Mrs CE, the risk that Mr and Mrs F1’s placement might break down and the effect that would have on the boys.’

22 At [51] the Tribunal said: ‘When the allegations of abuse were made it was not in the best interest of the boys to remove them from Mr and Mrs CEs’ care. Other ways of ensuring Mr and Mrs CE learned of the inappropriateness of such disciplinary techniques should have been found.’

23 These passages contain the only allusions to what the Tribunal may have considered to be the appropriate criteria to be applied by the Department. The Tribunal’s role is to determine what is the ‘correct and preferable decision’ as at the time of the hearing on the basis of all relevant material.

24 As is now reflected in our merits decision ([2002] NSWADTAP 1), in our view the question of the soundness of the original decision to remove the children, and thereby terminate custody, should be addressed; though any conclusion in that regard may not necessarily be conclusive as to the position taken at the time of the hearing.

25 As we see it the issue which the Department was required to address after receiving the sister’s report was the degree of risk of abuse which the children face. As we have indicated in our merits decision, in our view the law as enunciated in M v M (1988) 166 CLR 69 was applicable. It is not essential to find that an allegation of abuse has been made out (applying the civil standard as formulated in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362). The question for the Department, as we see it, was whether removal of the child would avoid exposing the child to an unacceptable risk of abuse.

26 The Tribunal decision in this case, as we read it, appears to conclude that the key allegations of abuse were in fact made out to the Briginshaw standard. In these circumstances, the observation in M v M we consider is applicable (‘In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access’). While that was a case of an inter-parental contest over custody, we consider that similar considerations apply where the contest arises between the State as the guardian and foster parents. In our view, as explained in our decision on the merits, this is the central question to be addressed in a case of child protection of the present kind.

Ground 1

27 The Tribunal made a series of negative findings as to the credibility of the foster father’s evidence and his reliability: paras [15] to [18]. The Tribunal did not deal with the specific allegations of abuse made by his sister in law. As to her evidence it said at [28] and following:

‘28 S was not a convincing witness. Her evidence regarding where and when she was living during the long period since her mother’s death was often incomplete and inconsistent. Her allegations with regard C1 having to swim laps of the pool was found to be deliberately misleading as it became clear that the pool was not only very short but also shallow at the “beach end”.

29 There was a clear conflict between S and Mr CE. Evidence from S was that Mr and Mrs CE did not want any input from her regarding the children and that although she was living under the same roof her interaction with the boys was minimal.

30 However S’s oral evidence taken in conjunction with documentary evidence of her phone calls and car problems relating to the activities of 21 March 2001 was preferred over that of Mr and Mrs CE.’

28 Para [30] is a critical paragraph. The Tribunal by accepting the sister’s account of the events of 21 March impliedly found that the several incidents of abuse that she had reported were established.

29 Para [30] arguably supported the following findings, all being matters alleged by the sister to have occurred on the morning of 21 March 2001:

1. That the foster father had made derogatory statements to C1 (‘your a loser’, etc).

2. That C1 was made to kneel on the kitchen floor wearing his underpants and a T-shirt with his hands up behind his head, and was crying.

3. That the foster father had then instructed C1 to kneel outside on the pebblecrete surround of the swimming pool, and that he put him in the pool and made him swim laps as a form of discipline.

4. That a few minutes later C1 was hanging on to the side of the pool crying.

5. That C1 was being criticised by his foster father at this time.

6. That later the foster father again spoke to C1 derogatorily calling him ‘a loser’ and C1 was crying.

7. That later C1 was standing on two stools in the foster parents’ bedroom that were spread so far apart that he had to do the splits and facing the mirrored wardrobe.

8. That at this time C1 had a gag tied around his mouth and behind his head, and it looked like a rolled up handkerchief.

9. That the foster mother had condoned the discipline effected on C1 and had warned her sister not to say anything about what she had seen.

30 In a matter of such seriousness express finding should have been made. Accordingly we uphold the first ground of appeal, i.e.
‘1. That the Tribunal failed to make any findings with regard to the allegations of abuse in respect of the children the subject of the appeal.’
Ground 2

31 The hearing gave the Tribunal, in contrast to the Department, the ability to make an assessment of the veracity of the allegations by reference to the evidence of the various adults at home that morning. The Tribunal is, to that extent, in a different (and better) position than the Department was at the time the Department received the report. Necessarily, the Department relied substantially in taking action on corroboration for the report as provided by the interview of C1; rather than by directly appraising the veracity of the various adults. In contrast, the Tribunal was in the position to make findings of fact as to the allegations of abuse without necessarily relying in any way on the interview.

32 The finding in para [30] also had implications, not addressed by the Tribunal, for the position of both the foster father and the foster mother. It followed, having accepted the sister’s account, that the foster father’s evidence on a number of matters that morning was not true. That is a consideration which in its own right would need to be weighed in the balance as to whether he could continue to be trusted with these children. It is vital, as we see it, in foster care arrangements, that there be a relationship of candour between the foster carers and the Department in relation to the management of the child’s interests. Equally the finding in para [30] carried implications in relation to the position of the foster mother, in that the allegations had implicated her in so far as she may have condoned and not intervened to restrain her husband’s conduct. There were no findings on that matter.

33 Given the negative findings made directly in relation to the evidence of the foster father, and the findings that follow by implication from para [30] as to the incidents of abuse which occurred on the morning of 21 March, the ultimate decision of the Tribunal to set aside the Department’s decision and make orders designed to restore the children to the care of the foster parents, required a close explanation of how that did not infringe the paramount interests of a child in being free of the risk of abuse as that standard was articulated in M v M.

34 In our view the only reasons given on this point, those at para [51], were not sufficient in that regard. Accordingly we uphold the second ground of appeal, i.e.

‘2. That the Tribunal failed to provide any or any adequate reasons in respect of:
(a) the allegations of abuse of the subject children;

(b) the best interests of the children;

(c) the Tribunal’s decision to order that the return of the children be implemented on a graduated basis.’

ORDER

Decision under appeal set aside. Leave granted to extend the appeal to the merits.