NS & NT v Director-General, Department of Community Services

[2009] NSWADT 149

CITATION:	NS & NT v Director-General, Department of Community Services [2009] NSWADT 149
DIVISION:	Community Services Division
PARTIES:	APPLICANT NS and NT RESPONDENT Director-General, Department of Community Services
FILE NUMBER:	094021
HEARING DATES:	16 and 18 June 2009
SUBMISSIONS CLOSED:	18 June 2009
DATE OF DECISION:	19 June 2009
BEFORE:	Britton A - Deputy President
CATCHWORDS:	Removal of children from authorised carer - stay of decision
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997
CASES CITED:	Re Repatriation Commission and Delkou (1985) 8 ALD 454 Williamson v Director General, Department of Transport [2000] NSWADT 165
REPRESENTATION:	APPLICANT In person RESPONDENT V Harstein
ORDERS:	1.Stay is refused 2.Matter is set down for further directions on 24 June 2009 at 10.15 am. Leave is granted to all parties to attend by phone providing they notify the Registrar 24 hours in advance and provide a land line number. 3.The matter is listed for a three-day hearing on 14, 15 and 16 July 2009 at Tamworth Local Court House. 4.The Respondent is to lodge section 58 documents and provide a copy to the Applicants, on or before 1 July 2009. 5.Any party wishing to rely on any evidence must file and serve it on or before 7 July 2009. 6.A representative/s is appointed to represent the subject children under s 71(4) of the Administrative Decisions Tribunal Act 1997. 7.The Registrar is asked to request the Registrar of the Childrens’ Court to provide the Tribunal with a copy of the Court’s file on the care proceedings involving the subject children, in which final orders were handed down on 27 November 2001. In the event the file is not released, leave is granted to the Guardian Ad Litem (GAL) to request the Registrar to issue a summons on the Children’s Court for its production. Access to that file is restricted to the GAL unless otherwise ordered by the Tribunal. 8.The Registrar is requested to obtain a transcript of the proceedings of 16 and 18 June 2009.

1 These reasons concern an application to stay the decision made by the Director-General of the Department of Community Services to remove two children from the care of a married couple, NS and NT, the applicants in these proceedings. The children were removed about six weeks ago following a report to the DoCS Helpline. The children are siblings, a girl aged 11 and a boy aged 10. The girl has lived with the applicants for about 20 months, the boy since Christmas last year. A third child, the brother of the subject children, was removed from the applicants’ care in June 2008.

2 The Minister has had parental responsibility for the children since November 2001.

3 The applicants applied for an internal review of the decision to remove the children on 30 April 2009. That review has yet to be completed. By the operation of s 53(9)(b) of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) that review is deemed to be completed. It is not in issue that the application for review by the Tribunal is within time.

4 In these reasons, to protect the privacy of the applicants and the children, the applicants will be referred to by the pseudonyms, NS and NT and the children simply as ‘the boy ‘ and ‘the girl’. As an added precaution I have omitted any information that might inadvertently identify the applicants or the children.

Background to removal

5 On 24 April 2009, the Department received a risk of harm report about the male child in the care of the applicants. Department officers interviewed the children separately. The transcript of those interviews has been tendered in these proceedings. The transcript states that the boy alleged that the applicants had:

Forced him to swallow liquid soap if he told a lie;

Kept a chart on the fridge that recorded a black mark against his name if he got into trouble;

Told him that once he reached 10 marks he would be returned to DoCS. He said he had eight marks and his sister had three;

Locked him in his room at night; and

Once made him use a bucket if he needed to urinate overnight.

6 The girl broadly supported those claims. She also alleged that, on one occasion when she and her brother had been misbehaving, the foster carers put them on the side of the road and drove off. They returned; picked her up and drove off leaving the boy.

7 During the interview both children claimed that the carers had instructed them that if questioned about their placement to respond by saying words to the effect of, ‘it’s fine’.

8 On the day of the hearing of the stay, the Director-General filed a draft of a report prepared by the Allegations Against Employees Report unit. The report was tendered on a confidential basis. The applicants were told of the recommendations contained in the draft report but were not given a copy. One of the recommendations was that the children be removed from the placement.

9 The applicants claimed that they had been told by the author of the draft report that they had been cleared of the allegations, which she characterised as ‘trivial’.

10 NS gave brief evidence. She vehemently denied some allegations and gave a more innocent account of others.

11 Dealing with each in turn, on NS’s account:

Liquid soap allegation She admitted that on one occasion when the girl lied about telling a teacher to ‘Fuck off’ she placed a drop of liquid soap on her tongue, which according to NS had been heavily diluted. She denied making the girl swallow the soap. She said that on occasion her husband had done the same to the boy.

She said she had used this form of discipline with her own children who are now in their thirties and do not appear to suffer any ill effect. She said she and her husband did so because they wanted to send a clear message to the children that lying was unacceptable. They were concerned that unless it stopped, the children might find themselves in serious trouble in the future.

Chart allegation NS strongly denied this allegation. She said she and her husband kept a star chart to reward ‘good’ behaviour and had never kept a record of ‘bad’ behaviour’. On her account there was nothing attached to the fridge that could be said to resemble a chart of any description.

Locking boy in room allegation NS also strongly denied this allegation. On her account, the door did not have a lock, it had been removed about 15 years ago when she accidentally locked herself in. In addition, she denied taking any steps to block the child from leaving his room at night or indeed at any other time.

She said that her husband told the boy to wake him if he needed to go to the bathroom throughout the night so he could accompany him and tuck him back into bed. She said this was necessary because the boy, on pretence of going to the bathroom, would regularly raid the pantry and eat food he was not allowed to eat because he was a celiac. She claimed that the boy resented these restrictions and yearned to eat the foods that his sister was free to eat. She claimed that DoCS had impressed upon her the need to prevent the boy eating any food that contained gluten.

Bucket allegation According to NS on one occasion she gave the boy a bucket to use at night to urinate. She claimed the bucket was new and not provided to humiliate or discipline the boy. Rather it had been given to him one night when she was in the process of rearranging the kitchen to prevent him from raiding the pantry and eating ‘harmful’ foods.

Leaving children on side of road NS gave a very different account of this incident to that given by the girl. On her account, once, when the children had persisted in fighting after been warned that it was distracting to the driver, she told them to get out of the car. She denied leaving them on the side of the road and said they were in a car park. She claimed that at all times the children were in her line of sight and she merely circled the car park. She said the children were left for a couple of minutes at most.

Police visit allegation On 23 April 2009, on the invitation of NS, a police liaison officer visited the children at home to talk to the children about lying and stealing. She said that she and her husband had become increasingly concerned about what they saw as an escalation in lying and stealing by the children.

Current placement

12 On removal from the care of the applicants, the children were separated. The boy has been placed with Life Without Barriers carers; the girl with Departmental carers. They continue to attend their respective schools. According to a DoCS manager who provided a statement in these proceedings, both appear to be doing well (MFI 1).

Findings and conclusions

13 The power to grant a stay is conferred by s 60 of the Tribunal Act 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.

14 The Tribunal’s power is limited to making orders ‘appropriate to secure the effectiveness of the determination of the application’. While the Tribunal will consider the interests of people affected by the determination (in this case the applicants and the children), any submissions by the Director-General and the public interest, the power to order a stay will only arise if it is ‘appropriate to secure the effectiveness of the determination of the application’.

15 The meaning of the phrase ‘effectiveness of the determination of the application’, has been considered by the Community Services Division and other Divisions of the Tribunal. The following passage from the decision of the Administrative Appeals Tribunal in Re Repatriation Commission and Delkou (1985) 8 ALD 454, is commonly cited with approval:

[8] The power . . . to make an order ‘staying or otherwise affecting the operation or implementation of the decision or a part of the decision’ sought to be reviewed . . . enables the Tribunal to preserve the status quo pending the hearing and determination of the application for review where the ‘effectiveness’ of the review may be jeopardized if the decision, in the meantime, is carried into operation. Thus the power may be exercised when it is appropriate to do so to ensure that the application for review, if successful, is not rendered nugatory.

16 In addition it has been held that a final determination will not be effective if, but for a stay, the applicant would be likely to suffer ‘irreparable loss’: Williamson v Director General, Department of Transport [2000] NSWADT 165 at [17].

17 A lengthy separation has the potential in my view to materially damage the relationship between a carer and a child. Where the relationship is damaged as a consequence of the separation or, the child has developed an attachment with a new carer this may become a critical factor in the determination of the subtstantive application. For these reasons I am satisfied that a stay may be necessary in this case to secure the effectiveness of the determination of the application for review.

18 Interests of the children It goes without saying that a relevant issue in these proceedings are the allegations that triggered the removal of the children. At this stage any findings are necessarily tentative because, until the available evidence is tested and fully considered, no ultimately determinative findings can be made.

19 The DoCS officers who made the decision to remove the children took the view that the allegations were serious enough to warrant the immediate removal of the children. When that decision was made, the officers did not have available the applicants’ response to the allegations.

20 Even if NI’s account is accepted, the behavioural management techniques to which she admits are of concern. I agree with the submission made by counsel for the Director-General, that discipline of the type described, while perhaps unremarkable at the time the applicants were raising their own children, is inappropriate for managing the behaviour of children in out of home care.

21 That said, careful consideration needs to be given to the likelihood of that conduct being repeated. This in turn requires consideration of the applicants’ preparedness to:

undertake not to use this type of discipline again, and

participate in appropriate counselling and training.

22 According to the applicants, the period covered by the subject allegations, broadly April 2009, was atypical of the placement. They claim that during that period the behaviour of the children had deteriorated markedly, pointing to various incidents of lying and stealing. On their account the girl, who up until that time had not given them any reason for concern, had started to display troubling behaviours. They further claim that the Department had provided them with little, if any, assistance especially in relation to the boy. They claim that while numerous meetings had been held they had not been provided with any clear guidance to assist them to care for the boy, pointing out that he came into their care with a history of broken placements and challenging behaviours. They claim that they were not provided with a behaviour management or care plan for either child. The Director-General broadly rejects those claims.

23 The children’s placement history Since entering out of home care in 2001, the children have been in multiple placements — the girl has been in two long term and three respite placements; the boy—five long term and a staggering 23 respite placements. It goes without saying that instability of this type is potentially damaging to the children.

24 The girl has been with the applicants for just under two years. The decision to remove her from their care has uprooted her from the only home she has known during this period. According to some reports, she appeared settled and to be doing well in the care of the applicants. The decision also meant that the relationships she has developed with the applicants’ family, friends and community have been bought to an end. When interviewed immediately prior to her removal she stated that she felt safe with the applicants and wanted to remain in their care.

25 Whatever the shortcomings of the applicants’ parenting style the available evidence suggests that they are genuinely concerned about the children and committed to providing long term care.

26 Interest of the applicants I acknowledge that if a decision is made not to return the children before the determination of the substantive application, it will be a source of considerable pain to the applicants. On their account they are deeply attached to the children, especially the girl. As noted above it may also be a factor that weighs against the return of the children to their care.

27 Conclusion Had the stay application been brought soon after the children were removed, a powerful argument would have been available to the applicants that the placement ought not be disturbed until the determination of the substantive application. That argument would have carried even greater weight if the applicants indicated a preparedness to submit to conditions and undertake appropriate counselling and training.

28 However these are not the circumstances now before me. The children have been out of the applicants’ care for over six weeks. If the stay is granted their current placements will be disrupted. If the Director-General’s decision is ultimately affirmed the children will be forced to endure yet another move. This would mean that in the space of three to four months the children would have been subjected to three changes in placements.

29 While there are a number of factors that favour the granting of the stay I have decided to refuse it primarily on account of the destabilising impact it would have on the children. In reaching that decision I have decided that the best interests of the children demand that the substantive application be promptly determined. To that end I have set a tight timetable so that the application can proceed with minimum delay.

30 Orders

1. Stay is refused.

2. Matter is set down for further directions on 24 June 2009 at 10.15 am. Leave is granted to all parties to attend by phone providing they notify the Registrar 24 hours in advance and provide a land line number.

3. The matter is listed for a three-day hearing on 14, 15 and 16 July 2009 at Tamworth Local Court House.

4. The Respondent is to lodge section 58 documents and provide a copy to the Applicants, on or before 1 July 2009.

5. Any party wishing to rely on any evidence must file and serve it on or before 7 July 2009.

6. A representative/s is appointed to represent the subject children under s 71(4) of the Administrative Decisions Tribunal Act 1997.

7. The Registrar is asked to request the Registrar of the Childrens’ Court to provide the Tribunal with a copy of the Court’s file on the care proceedings involving the subject children, in which final orders were handed down on 27 November 2001. In the event the file is not released, leave is granted to the Guardian Ad Litem (GAL) to request the Registrar to issue a summons on the Children’s Court for its production. Access to that file is restricted to the GAL unless otherwise ordered by the Tribunal.

8. The Registrar is requested to obtain a transcript of the proceedings of 16 and 18 June 2009.