QW and QX v Minister for Community Services; QW and QX v Anglicare

[2005] NSWADT 287

CITATION:	QW and QX v Minister for Community Services & anor; QW and QX v Anglicare [2005] NSWADT 287
DIVISION:	Community Services Division
PARTIES:	FIRST APPLICANT QW and QX FIRST RESPONDENT Minister of Community Services JOINED PARTY QY SECOND APPLICANT QW and QX SECOND RESPONDENT Anglicare
FILE NUMBER:	054014, 054016 and 054025
HEARING DATES:	22/08/2005, 31/08/2005, 1-2/09/2005, 5/09/2005, 1-3/11/2005
SUBMISSIONS CLOSED:	11/03/2005
DATE OF DECISION:	12/06/2005
BEFORE:	Britton A - Judicial Member; Smyth M - Judicial Member; Moss J - Non Judical Member
APPLICATION:	Removal of children from authorised carer - Revocation of care authorisation
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Children and Young Persons (Care and Protection) Act 1998 Children and Young Persons (Care and Protection) Regulation 2000 Community Services (Complaints, Reviews and Monitoring) Act 1993
CASES CITED:	Osmond v Public Service Board of NSW [1984] 3 NSWLR 447 QW and QX v Director-General, Department of Community Services [2005] NSWADT 141 YG & GG v Minister for Community Services [2002] NSWCA 247
REPRESENTATION:	FIRST & SECOND APPLICANT S Hodges, solicitor FIRST RESPONDENT V A Harstein, barrister SECOND RESPONDENT L Miller, solicitor JOINED PARTY K Rytkowska, solicitor
ORDERS:	1. The decision to remove the subject children is affirmed; 2. The decision to revoke the Applicant’s carer authorisation is affirmed.

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 In December 2004, officers of the Department of Community Services removed two siblings, a girl aged 13 and her 10 year-old brother, from the care of the Applicants, a married couple, with whom the children had lived for just under ten years. Subsequently, a decision was made by Anglicare, the agency responsible for supervising that placement, to revoke the Applicants’ authority to foster children.

2 The trigger for the decision to remove the children was allegations of abuse made by the children in December 2004. That decision was confirmed in March 2005 and based largely on the recommendation of the Department’s psychologist, Bruce Bowmaker. In a report dated 6 March 2005, Mr Bowmaker recommended that the two children:

“…remain together as a sister-brother combination. However given [the subject child’s] determination, it would seem futile to recommend that she be returned to the care of [the Applicants] and I therefore recommend that [the two children child] be placed together in an alternative foster placement as a sibling unit of two.”
3 The Applicants assert that they have provided a loving and warm home to both children and vehemently deny the allegations of physical abuse.

Procedural matters

4 The Applicants seek a review of the decision to remove the children and also the decision made by the second respondent, Anglicare, to revoke their carer authority. As the facts relevant to both applications overlap, we deal with them together.

5 In a decision handed down on 24 June 2005 (QW and QX v Director-General, Department of Community Services [2005] NSWADT 141), we dismissed the application brought by the Minister under s 73(5)(h) of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act).

6 In the initiating application lodged with the Tribunal on 15 March 2005, the Applicants sought review of the decision to remove both children. On 22 April 2005, the Applicants sought and were granted leave to narrow the scope of that application for review to the decision to remove the boy. They explained to the Tribunal that they had made that decision as they were no longer seeking the return of the girl because they respected her stated wish not to return.

7 At the conclusion of this hearing, on 3 December 2005 we affirmed the decision to remove the boy and gave brief oral reasons for that decision which we elaborate on in this decision. In addition, in these reasons we examine the decision by Anglicare to revoke the Applicants’ carer’s authority.

8 Because of the sensitivity of this matter, we have decided not to publish any details that could identify the Applicants, the children or their birth family. In these reasons we refer to the Applicants as Mr QW and Mrs QX; the boy the subject of the review as “the subject child”; the subject child’s sister who was also removed in December 2004 as TJ; the subject child’s eldest sister as TL; the subject child’s eldest brother TM and the middle child, a boy, who had been living with the Applicants until mid-2004 as TK. For ease of reference, a table setting out these pseudonyms is attached to these reasons.

Background

9 The subject child is now aged 11. He was removed from his birth family when he was two and a half months old and placed in a temporary foster home for 11 months. In October 1995, he was placed with the Applicants and his four siblings, TM, TL, TK and TJ.

10 The five children were removed from their birth parents following allegations of physical abuse, neglect and domestic violence. In April 1995, all the children were made wards of the State under the guardianship of the Minister until 18 years of age pursuant to the Children (Care and Protection) Act 1987.

11 It is common ground that in retrospect the decision to place the five children with the Applicants was unwise. All children had experienced abuse and neglect at the hands of their birth parents and, with the exception of the subject child, all had lived in multiple foster homes. The children had never lived together in the same home.

12 The eldest child, a girl TL, was 13 years old when she went to live with the Applicants and elected to leave after about six months. Her brother, TM, who was aged 12 years when he was placed with the Applicants, left two years later. Both children alleged that they had been physically disciplined by the Applicants. Those allegations were denied and have not been substantiated. In recent years the relationship between the Applicants and TL and TM seems to have been repaired and they are now in regular contact.

13 In late 2003, TJ alleged she had been hit by Mrs QX and reported that she was fearful of returning home. Those allegations were investigated by Anglicare and found not to be substantiated. In February 2004, Anglicare wrote to the Applicants and advised “we have conveyed to the Ombudsman that we have confidence in the job you are doing as carers”.

14 The middle child, TK, ran away from the placement on a number of occasions in the early part of 2004 amidst allegations that he had been hit by the Applicants. He was 13 at the time. It was reported that he had intimidated and bullied his younger siblings. He finally left the placement in June 2004.

15 It is not in issue that when the subject child was living with the Applicants the child grew and progressed well in some areas but continued to have problems and function below his age level. He had a long history of regular soiling and wetting and the school reported behavioural problems. Nor is it in issue that when he left the Applicants he was emotionally troubled. What is in issue is the cause.

16 The subject child and his sister have had regular, supervised contact with their large and extended birth family since being placed with the Applicants in 1996. It is not in issue that it would not be feasible for either child to live with any member of their birth family at this stage. Mr Bowmaker was of the opinion that the birth family has been a destabilising influence on the placement and will more than likely continue to be in any future placement.

December 2004 allegations

17 Elaine Goh, the Anglicare case worker responsible for the supervision of the placement at the time the children were removed, first learned of the allegations of the use of physical discipline by the Applicants in late November 2004 when TJ told her she was unhappy at home and alleged that “[Mrs QX] hit me in the [October] school holidays”. Shortly after that disclosure both children told Ms Goh that they were unhappy living with the Applicants. On Ms Goh’s account the subject child said “they hit me almost every day” and that he did not want to go back and wanted to leave straight away. Ms Goh told the Tribunal that when assigned this placement in late 2003, she had been aware that allegations of abuse had been made but saw no evidence of that in the 12 months during which she was responsible for the placement.

18 Following Ms Goh’s notification, the children were interviewed at their school on 14 December 2004 by DoCS’ caseworker, Brenda Clements. Anglicare caseworker, Melissa Mui and the school Principal were present at the interviews. Each child was interviewed separately. A record of interview made by Ms Mui was tendered in these proceedings.

19 According to that record, the subject child said:

His foster mother hit him on his arm and neck when he did something bad … “swearing or hurting TJ - but I haven’t done that for a while”. [emphasis added].

[Dad] sometimes chases him around the house…“catches me and then mum hits me …he holds me by the hand and drags me on the floor”.

He felt bad about [the Applicants] …“because they are hurting me”.

Mum sometimes yells at TJ “puts her in the room and shuts the door. Then she hits her and pushes her on the floor”. He did not see this happen but knew it did “because TJ told him” and “he can hear mum screaming and hitting her and pushing her on the floor”. Dad is upstairs when that happens.

He did not want to live with the Applicants anymore… “I don’t want to get hit anymore…I feel worse everyday. Sometimes if I’ve done something bad and I come home I might get hit”.

20 The record of interview with TJ stated:
“[Mrs QX] hits [the subject child] everyday.” “She hits him on the arm and on the back … Or sometimes uses her fist (TJ made her hand into a fist) and she shouts. And it's not only one smack - she keeps hitting him until he says ‘yes mum’”.

Since TK left [June 2004] the subject child had been acting like him “if he doesn't get his way he gets a knife and tries to hurt me. There are even cracks on my door where he's tried to get me. He wants to get out of foster care to be like Josh.”

She witnessed [mum] push TK to the ground [after he tried to interrupt the subject child’s phone conversation with his grandmother] … TK pushed her back and [mum] was screaming "How dare you".

On one occasion she ran to her room and locked the door after having an argument with [mum] who took the subject child’s side after an argument she was having with him about money. “[Dad] pushed the door open; [mum] tried to get her up [off the floor]… She grabbed my arm and threw me on the bed. She asked me to sit up but I didn't want to. She hit me with her fist and was slapping me. I had my arms around me trying to protect me. Mum pulled me to get me to sit up.”

On the morning of the interview Mum had hit her over an argument about wearing the Year 6 shirt to school. “She hit me on the shoulder with her hand.”

Dad usually stays out of these altercations but sometimes when the subject child doesn’t do what he wants he “drags him to the bedroom by his feet and arms…[his] feet are sometimes on the ground or sometimes his stomach is on the ground.”

It was hard living with the Applicants “they hurt me and the subject child but she [mum] has done nice things too ... but I don't like the hitting. Even if you talk to her, [mum] just gets really pissed off and hits me that day. She pushes me on the ground and calls me ‘Bitch, damn idiot’ and ‘fuckwit’. She calls all our [birth] family ‘fuckwits’”.

She still went to church with the Applicants and that was fine “but I can't tell anyone there about what's happening. Everyone loves the Applicants and thinks they are angels. They wouldn't believe me.”

When asked if she wanted to leave she said, “I don't care [where]. I just want to go. I've been like this since I was in Year 3. I can't take it anymore. I told DoCS in Year 3, I didn't in Year 4 because I was afraid of [mum] but I did in Year 5 and then now.”

21 According to Ms Mui, the subject child appeared anxious throughout the interview and at the end put his head in his hands and was sobbing. This is consistent with the evidence given by the school principal.

22 Immediately after the interviews Ms Clements met with the Applicants and told them what the children had said. Each vehemently denied the allegations. They were also told on that day that the children would not be returned until the allegations had been further investigated.

Applicants’ answer to allegations

23 The Applicants have consistently denied these allegations of mistreatment. They argue that what the children told Ms Clements in interview must be seen in the context of the children’s experience and the ‘pull of the birth family’. On their account, the older children told them that they had witnessed extreme violence before living with them. The Applicants claimed that from time to time the boys “acted out” what they had seen and could themselves be extremely violent on occasion. They said the children were almost invariably unsettled, angry and disgruntled after contact with their birth family. They claim that the children had reported to them that their birth father had told them he would “get them out of care”.

24 The Applicants testified that they only ever disciplined the children to prevent harm “we have never done any physical disciplining that has been punitive”.

25 Both consistently denied hitting or swearing at the children or observing their spouse do so. They offered the following explanation for the allegations made by the children:

26 Dragging subject child across the floor Mr QW testified that on one occasion he did “drag” the subject child but not in the manner as alleged. He explained that on that occasion his attempts to persuade the child to stop annoying his brother had failed and he tried to lead him out of the room but the child resisted and dropped to the floor. Mr QW said he tried to lift the child but found him to be too heavy and then started to pull him which the child found to be “a great game” and “calm was almost immediately restored”.

27 Hitting TJ Mrs QX gave evidence of one occasion when she hit TJ. On her account she had run to the aid of the subject child who was screaming for help to find his elbow poking out at a “strange angle” and TJ twisting his arm. Mrs QX said she was alarmed as she thought the arm would break and despite her pleas TJ refused to let go. After restraining TJ’s hand for some time, she said she was unable to continue and was forced to break TJ’s grip by “tapping the back of her right arm”. According to Mrs QX, TJ immediately let go and stalked off to her room.

28 Mrs QX said that after TJ alleged that she had hit her in 2002, she was at pains to keep “all physical contact to the most innocuous”.

29 Hitting subject child Mrs QX denied hitting the subject child but conceded that on rare occasions she “patted him lightly on the bottom” when he was in a rage and other attempts at settling him had failed. According to Mrs QX these were never anything more than “pats” and did not hurt him or cause him to cry. She claimed that Anglicare knew and approved of this technique.

30 She said that from time to time she might have patted both children on the arm to get them to “hurry along”.

31 Breaking into TJ’s room According to Mrs QX, on one occasion after an argument, TJ locked herself in her room and refused to come out or say that she was OK. Mrs QX claimed that she became worried and asked her husband to get a screwdriver to open the door from the outside, a procedure she had demonstrated to the children on a number of occasions. She said that when she returned shortly after, the door had been opened but she did not know by whom and TJ said she had hurt her head. According to Mrs QX, after some comforting TJ seemed fine.

32 Mrs QX emphatically denied throwing TJ on to the bed and claimed she was physically incapable of doing so because of injuries sustained in a car accident.

33 Purported admission Mrs QX wrote to both children a few days after they were removed. In her letter to TJ she wrote “I promise you [the subject child] will never be hit again, nor will you”. In cross-examination, she refused to concede that those words constituted an admission and said it was an acknowledgement that the child saw it that way. Mrs QX said if she had not written in these terms, TJ might have gone forward “feeling that I didn’t say sorry to her”.

34 Allegations made after 14 December The children repeated their allegations after they were removed from the Applicants.

35 Bowmaker Interviews Mr Bowmaker met with the subject child on seven occasions after his removal. According to Mr Bowmaker, the child consistently told him that he and TJ had been hit been “hit, whacked and hurt” by both carers. He was of the opinion that while TJ had attempted to persuade the subject child not to return, the allegations of mistreatment were not manufactured.

“[the subject child] was consistent, over the whole time I saw him, that he was being hit. I don’t accept for one minute that he was being put up to anything by [his sister, TJ]. He is… interested in what [TJ] thinks, … takes it on board what she wants and where she wants to go, but … by about fourth or fifth time I’d met him he was clearly stating what he wanted that [TJ], he was different to [TJ] , you know, he was comfortable, … If somebody is being coached it’s very easy to get around, particularly over so many interviews and such lengthy time and during testing, it comes out in a whole manner of ways.”
36 The child told Mr Bowmaker that the Applicants “hit me sometimes, like hit me across the head and dragged me but I still think that is much better than [the first carers with whom he was placed after removal from the Applicants].

37 Clements Interview In May 2005, the subject child told Ms Clements that he wanted to return to the Applicants providing that they stopped “hurting” me.

38 Ramjan Interview Towards the end of the proceedings, the Tribunal appointed a member of its Guardian at litem panel, Barbara Ramjan, to interview the subject child and provide an update report. A transcript of that interview was tendered in these proceedings (Exhibit 1). The interview took place on 26 October 2005. Ms Ramjan’s primary brief was to ask the subject child about his wishes. This was the first occasion Ms Ramjan had met the child.

39 In answer to a question about whether he would like to live with the Applicants the subject child volunteered, “[the Applicants] hit me sometimes, like hit me across the head and dragged me but I think that’s much better than [the carers with whom he lived immediately after leaving the Applicants]”. He went on to say that the Applicants “were mean but not every day…[mum] used to hit me in the head and they used to drag me to my bedroom”. He said TJ used to “get the same thing” but was not dragged to her bedroom “only hit across the head”.

40 Interview by social worker At the request of the child’s representative the subject child was interviewed in August 2005 by social worker, Jennifer Brown. A report prepared by Ms Brown was tendered in these proceedings. The subject child told Ms Brown “when I was naughty they hit me” and “when I was seven I never got hurt. TJ started to get caught when she was seven”.

The wishes of the child

41 Background To put the subject child’s wishes in context it is necessary to briefly outline what has happened in his life since his removal from the Applicants.

42 Since leaving the Applicants, the children have lived together in two placements. The first placement ended in mid-2005 and at the time of the hearing the second remained on foot. At the first placement the subject child started at a new school. His class teacher testified that at first he appeared reasonably settled but towards the end of Term 1 his behaviour deteriorated; he was ostracised by his peers and seemed to her to be very unhappy. He told Ms Ramjan that he “got in trouble for every single thing I didn’t do and then they would whack”. He nominated it as the worst place he could live, “it was hell”. Anglicare Manager, Jacqueline Palmer, thought that “the match” between the subject child and these carers “was not great” and the result of the need to find an urgent placement.

43 The children were moved to their current placement in July 2005. The subject child told Ms Ramjan that the new placement was “good”. Since moving to that placement he has met with Mr Bowmaker, Ms Goh and Ms Clements who all report that he appears to be settled and happy.

44 In October 2005, TJ was hospitalised for three weeks following an episode of self-harm. [According to the Applicants she had been cutting herself since the early part of 2004].

45 Child’s Stated Wishes The subject child’s stated wishes have changed on a number of times over the past ten months.

46 Ms Mui gave evidence that when he was informed after the interview with Ms Clements on 14 December 2004 that he would not be returning to the Applicants he appeared “gleeful”. Ms Goh who saw the children shortly after that interview thought that he appeared confused but otherwise did not have “much of a reaction”.

47 Two weeks after being removed he was interviewed again by Ms Clements. Ms Mui was present at that interview and prepared a record of interview which was tendered in these proceedings. In that interview he said he wanted to go home [to the Applicants] and started to cry. He confirmed that what he had said on 14 December about the Applicants hitting him was true but said he still wanted to go home and “knew he would be safe”.

48 According to Mr Bowmaker, when he first met the child on 24 January 2005 he said that he wished to live with his paternal grandparents and see the Applicants four times a year. However, over the next three months the child said he wanted to return to the Applicants. The child also told Mr Bowmaker that his sister, TJ “was trying to make me not go back”. TJ admitted this and said that she had told her brother that the Applicants are “too violent” and had “warned him he won't be happy there” but if he doesn't listen “too bad what happens to him”.

49 Mr Bowmaker thought that the subject child appeared comfortable with the Applicants during the two contact visits he observed, weeping at the end of each visit, telling them he loved them and hugging Mrs QX closely. This accords with the Applicants’ own account. According to Mrs QX at the end of each visit [to July 2005] the child told them he loved and missed them and asked if he could go home.

50 According to Mr Bowmaker, when he told the children on 23 March 2005 that they would not be returning to the Applicants, TJ looked relieved. The subject child on the other hand started to cry but stopped after a few minutes and “all of a sudden” announced he had been stealing from Mrs QX since he was six. In Mr Bowmaker’s opinion, he regained composure much more quickly than would have been expected of a boy of his age who had a strong attachment to his foster carers.

51 Mr Bowmaker interviewed the subject child on 3 August 2005. By that stage he had moved into his second placement and according to Mr Bowmaker appeared settled and happy. On Mr Bowmaker’s account, the child asked without prompting whether his sister had said that he shouldn’t go to live with the Applicants and went on to say “I don’t know how I feel about going to live with [the Applicants].” When asked how he would feel if “the Court” decided he should return, he replied “I don’t really know if I want to go back”. When asked if could choose between the Applicants and his current placement, he chose the latter.

52 In May 2005, the child told Brenda Clements that he wanted to return to the Applicants providing they stopped “hurting” me.

53 Ramjan interview The subject child told Ms Ramjan that when he was removed from the Applicants he was “over the moon”. He said when he was told of the decision he was “sad at first and then relieved”. He said he felt sad because “he didn’t know if he was to go to a good home” and relieved when he learned that TJ and he were to live together.

54 He told Ms Ramjan that the current placement “is the best place I’ve been to… I’ve got a play station in my room…a HD TV with a remote”.

55 When asked how he felt about the Applicants he said “I haven’t thought about them for ages” but said he would like to see them sometimes.

56 He was also asked where he would live if given the choice and nominated various members of his birth family, including his sister, TJ. On further questioning he said “the best place would be Aunty Faye’s or Joyce’s, the worst, his foster carers from December 2004 to July 2005 and the second worst, the Applicants. [“Aunty Fay” is apparently the child’s first foster carer with whom he lived until he was 14 months and continued to have contact with. “Joyce” is the current carer.]

57 Both parties questioned Mr Bowmaker about the Ramjan interview. He thought, on balance, that it was a good interview. He did not agree with the proposition put to him on behalf of the Applicants that it indicated that the child now placed less emphasis on his relationship with TJ, but agreed that it suggested that he might be starting to distance or protect himself against her. He agreed with the proposition that most children tend to be compliant with adults but thought that as the subject child did not know Ms Ramjan from “a bar of soap” he was more likely to speak his mind. According to Mr Bowmaker, that interview reinforced his view that the child was capable of stating his own mind.

The child’s relationship with the Applicants

58 The Applicants assert that the subject child was and is closely attached to them and gave numerous examples to support that proposition. A number of family friends and acquaintances gave evidence about their observations of the interaction between the Applicants and the subject child, which they believed revealed that a close and warm relationship existed between the child and his carers.

59 The consensus of opinion among caseworkers and other professionals who have observed the placement recorded on the Anglicare file, is largely to the effect that there was a strong bond between the subject child and the Applicants. Anglicare’s report of the annual review of the placement carried out in August 2004 noted that the Applicants have been able to provide the subject child with a stable placement over the past year, that they have been supportive and encouraging in his strengths such as sport, that he has been easier to manage since TK left, that they have continued to work with his soiling, and that they have continued to work hard in building a good relationship with the birth family. The November 1996 progress report noted that the subject child “is securely attached to his foster parents and to date, the placement is providing stability and appropriate love and care”. The November 1997 case plan was in similar terms and noted that the subject child is now securely attached to the Applicants and has received “safe and consistent care since coming into care”.

60 In his first report, Mr Bowmaker addressed the relationship between the subject child and the Applicants and set out the various tools he employed in that assessment. They included the Bene-Anthony Family Relations test and the Thematic Apperception Test (TAT). He asserted that the first test “ attempt[ed] to help children to express emotional attitudes of which they are aware, but which they might find difficult to verbalise”. On this test, the subject child did not identify any adults, either foster or birth, as significant, choosing instead his siblings, particularly his sisters.

61 Mr Bowmaker said he believed that the child’s responses in the TAT test possibly indicated that he had a wish for a new life.

62 Mr Bowmaker concluded that the children’s needs have “to some extent been met in the foster home but their attachments to [the Applicants] are insecure”. He thought that TJ did not identify the Applicants as “parents” and did not have “emotional security in her attachment with them”. In contrast, the subject child:

“acknowledges [the Applicants] as his primary carers and he feels indulged by them; he feels a sense of belonging in their area and with his school, his peers, and his sporting teams; he has also had stable schooling and encouragement to achieve to his full potential.

However his identification with [the Applicants] and his sense of permanence with them have been compromised by the departures of his older siblings and their enduring attachments to their birth family. Furthermore this assessment suggests that the subject child has most emotional investment in his relationships with his siblings - he is the youngest of a sibling group of five who were originally placed with [the Applicants] and his exposure to their attitudes and attachments seems to have outweighed the influence of [the Applicants]. Additionally the file first indicates that [the subject child] has emotional and behavioural problems in 1999, he has been soiling ever since, and he speaks about ongoing hitting in the home.

63 In his first report, Mr Bowmaker described the Applicants as the subject child’s “psychological parents”. In oral evidence he was at pains to point out that in using that term he had not meant to imply that the placement was “safe and secure” but rather that the Applicants were the only parenting figures that the child had known.

64 After the removal of the children, the Applicants were counselled by psychologist, Ms Lindfield. At the request of the Applicants, Ms Lindfield prepared a report which was tendered in these proceedings (Exhibit A 13). At the time of writing the report Ms Lindfield had met with the Applicants on four occasions.

65 In her report, Ms Lindfield commented on aspects of Mr Bowmaker’s report but properly observed that her ability to do so was limited as she had not seen either child or viewed the Department’s file and therefore was largely reliant on the history given to her by the Applicants. She observed that the report did not give a “clear sense” of the subject child’s “emotional sense and attachment status”. She thought there were a number of possible explanations why he chose his siblings in the Family Relations Test. Either he was clinging to his only remaining family and/or contact issues and the birth family’s struggle to still be “the family” might have, through his siblings impacted on the child for his entire life. She also considered that that test was unreliable for inferring “deeper” emotions.

66 She also questioned Mr Bowmaker’s decision to use the Thematic Apperception Test. She thought that while it was generally suitable for children aged 10 and up its value was limited in this case if, as the Applicant’s reported, the subject child was a young 10 year old.

67 Ms Lindfield thought that the child’s reported lack of attachment to Mrs QX did not necessarily reflect lack of attachment. In her view it was possible that it simply reflected that the child is “experiencing a sense of abandonment and anger” that he is unable to articulate.

The child’s relationship with his sister

68 The subject child has consistently stated that he wishes to continue to live with his sister. It is common ground that a strong bond exists between the two children. Mr Bowmaker concluded that TJ was the subject child’s primary attachment figure.

69 Since December 2004, TJ has repeatedly said that she refuses to have any further contact with the Applicants. The Applicants said they were resigned to that but were prepared to “leave the door open” to TJ. Both conceded that in the short term it was unlikely that their relationship with TJ could be restored although they pointed to the restoration of their relationship with the elder children who had also left their home under strained circumstances. In addition, they pointed to the recent example of QY, the middle child who left the placement in mid 2004, who sought solace at their church after running away from his current placement. They suggested that this was an early sign that even that relationship might be able to be repaired.

70 In this inquiry, the Applicants were asked how they would manage contact between the two children if the subject child were to return to live with them as the only child. Mrs QX proposed that the children be able to phone each other whenever they wished and have regular supervised afternoon activities such as shopping or bowling. Mr QW thought it might be possible for TJ to visit her brother at their home and vice a versa but acknowledged that this would not be possible given TJ’s firm view not to have anything to do with him and his wife.

71 Mr Bowmaker reported that TJ had changed her mind on a number of occasions about where she would like to live and had mentioned, among other options, a group home and the birth family. In cross-examination, he agreed that a group home would at this stage be inappropriate for both children given their ages. He also agreed that there was she was a deeply troubled child as evidenced by the recent hospitalisation for self harm and thought it likely that she might “self place” within a few years.

Findings and Conclusions

72 In conducting this review, we ‘stand in the shoes’ of the administrator, and make the ‘correct and preferable’ decision having regard to all relevant material (Administrative Decisions Tribunal Act 1997, s 63), including any material that postdates the decision under review to remove the children (See YG & GG v Minister for Community Services [2002] NSWCA 247 at [25].) We are obliged to conduct our review of the decision to remove the children “without any presumption as to the correctness of the decision”: McDonald v Guardianship Administration Board [1993] 1 VR 521 at 530 (SupCtVic, Appeal Div).

73 In making our decision, we are instructed to give paramount consideration to the safety, welfare and well-being of the subject child (s 9(a) of the Children and Young Persons (Care and Protection) Act 1998).

74 In the course of these proceedings, the Applicants were criticised for many things including their alleged inability to “parent” adolescent children, work with Anglicare and Mrs QX’s lack of empathy for the birth family. In our opinion some of these criticisms were unjustified. However, ultimately they proved not to be relevant to our decision and therefore we have not explored these issues in these reasons. Our decision ultimately turned on three main issues: the allegations of physical abuse, the wishes of the subject child and his relationship with his sister.

75 The starting point in our deliberations is the acknowledgement of the longevity of this placement. The Applicants have been the only “parents” the subject child has ever known, having lived with them since he was a baby. As a general rule a long-standing placement such as this should not be disrupted except with good cause and every effort ought to be made to protect and support it.

76 The allegations of physical punishment that triggered the decision under review sit at odds with the observations of the many witnesses who gave evidence for the Applicants. The children’s treating doctor certified that neither child presented with unexplained injuries in the period they were under her care. It is telling that Anglicare, the organisation charged with supervising the placement gave it the all-clear only three months before the children were removed. Caseworker, Ms Goh, saw no signs of abuse. Only 12 months earlier, Anglicare had concluded that earlier allegations made by TJ against the Applicants were baseless.

77 Close scrutiny of the discloures made by the children reveal a number of material inconsistencies. For example, Ms Clements was told in December 2004 that Mrs QX hit the subject child on the “arm and neck” and that he had been dragged by Mr QW. No mention was made in that interview of Mr QW hitting either child. Later, when the children were interviewed by Mr Bowmaker, they alleged being “hit, whacked and hurt” by both carers. Ten months after these allegations were first made, the subject child told Ms Ramjan that both carers had hit him across the head and dragged him.

78 Mr Bowmaker had the benefit of questioning the children over an extended period. Under cross-examination, he did not resile from his view that the children had not fabricated or exaggerated their claims of mistreatment. It is evident that Mr Bowmaker was alert to the possibility that the allegations might have been untrue. However, we question the extent to which he scrutinised the conflicting accounts given by the children. There is no evidence for example that he asked either child to explain these apparent inconsistencies. Notwithstanding these shortcomings, we accept that Mr Bowmaker gave serious thought to the possibility that the children might have exaggerated their claims but concluded that they did not.

79 The evidence about the birth family is inconclusive but what we do know is that the children’s birth father told them he would “get them out of care” and both children from time to time have expressed a desire to live with the birth family, or more correctly, some members. As Mr Bowmaker properly conceded, it is improbable that the children did not know that their elder siblings had left the placement after making allegations of physical abuse. While the fact that the children would want to leave their home of more than 10 ten years of itself raises troubling questions, it is possible that they used the allegations as a means to exit the placement.

80 For the reasons as outlined, the claims made by the children must be treated with some circumspection. However, they cannot be easily dismissed. First, this is not a case of a one-off disclosure: allegations of abuse have been a feature of this placement from early on; second, over the past 10 months, under questioning by a number of experts, neither child resiled from their central claim of mistreatment; third, the subject child did not retract his allegations even on those occasions when he indicated that he wished to return ‘home’ and it would have been in his interests to paint the Applicants in the best possible light; fourth, on two occasions, Mrs QX has admitted to “smacking”/ “gently pummelling” the children. In our view, her explanation for doing so in her letter to TJ written shortly after the removal is not entirely satisfactory. (We note that Mrs QX was not given the opportunity to comment on the reference to “gently pummelling” in Belinda Mawhinney’s clinical notes (Exhibit A15) and therefore have given this purported admission little weight); fifth, in the recent interview with Ms Ramjan the subject child, without prompting, claimed that he had been hit.

81 Both children have raised serious allegations against their former carers. There are no independent witnesses to any of these alleged misdeeds. The children and the Applicants have each given a credible and plausible account of the events leading up to the decision under review. We are left with two explanations which cannot stand together. None of the allegations made against the Applicants could be proven on the balance of probabilities but nor could we be satisfied that there was no truth in any of the allegations. Ultimately, we cannot tell where the truth lay.

82 Physical punishment of a child in out-of-home care represents a clear breach of the rules governing foster care and properly is a matter of great concern to the Minister as the children’s guardian. However, it does not necessarily mean that a long standing placement must be terminated. All of the circumstances need to be assessed including the magnitude and the nature of the risk of abuse. Here there is no evidence that the children were physically harmed but if their allegations are accepted they were, and remain, deeply troubled by this treatment. TJ repeatedly reported that she is fearful of the Applicants. This is not a case of an occasional whack by a carer under great stress but, if the children’s claims are accepted, repeated physical punishment over an extended period.

83 Absent a positive finding that the allegations were untrue given the nature of the alleged abuse, in our view it would represent an unacceptable risk if the subject child were to return to live with the Applicants, notwithstanding the many positive features of the placement.

84 In deciding to affirm the decision of the Minister, we have also had regard to the difficulties the subject child would confront if he returned to live with the Applicants given what has occurred over the past 10 months. We concur with Mr Bowmaker’s assessment that if he returned to his former carers he would be confronted by conflicting loyalties to the birth family, his sister and the Applicants. We have no confidence that if he were to return it would be feasible for him to maintain a relationship with his sister which, as the Applicants concede, is very important to the child. While his view about them has waxed and waned over the past 10 months, he has been steadfast in his wish to remain with TJ. We believe that that relationship would be placed under intolerable strain if he were to return to live with the Applicants as their only child. TJ has made it abundantly clear that not only will she not return but wants nothing to do with her former carers. While this might change in the future, as the Applicants have suggested, there is not a hint of that being a possibility at present. With all the goodwill in the world, it is difficult to see how the Applicants could assist the subject child work his way through this labyrinth and maintain a meaningful relationship with his sister. Their evidence about the steps they would take to support that relationship gives us no comfort that that could be achieved. This is not intended as a criticism of the Applicants but is rather a recognition of the very real practical difficulties of maintaining a relationship between the two siblings given the depth of TJ’s hostility towards the Applicants.

85 There were many positive things about this placement. Both children have done reasonably well at school and participated in a rich and diverse range of activities. The evidence, in our view, is inconclusive about whether the Applicants contributed in any way to the subject child’s reported emotional and behavioural problems. Nevertheless, it is troubling that since their removal both children have repeatedly stated that they were mostly unhappy with the Applicants. The subject child now says he does not want to return. While this has not always been his stated view and, given his age, it is possible that he has been seduced to an extent by the novelty of the current placement, it is troubling nevertheless that he now confirms his initial view of not wanting to return to his home of 10 years. It may be that the explanation for this might not lie in any shortcomings on the Applicants’ part but, as Mr Bowmaker suggested, the child’s relationship with them might have been compromised by the departures of his older siblings and their complex and enduring attachments to their birth family.

86 In reaching this difficult decision, we are mindful that the apparent stability of the current placement might well be short-lived and for one reason or another a single placement for the two children in the future might not be able to be secured. We are also mindful that the road ahead for the subject child with TJ is unlikely to be trouble free. Nevertheless, for the reasons as stated, we believe it in his best interests on the evidence available to us that the Minister’s decision be affirmed.

87 We appreciate that this whole lengthy process has been a most difficult and, indeed, a painful one for the Applicants. During the course of these proceedings, we have developed considerable respect for their generosity and their obvious altruism and understand very well their sense of grievance and distress, for which we feel considerable sympathy. However, our decision must be determined only by our perception of what is in the best interests of the child. We stress that this decision is not to be read as a condemnation of the Applicants but as a determination, based on the evidence available to us, of where the child’s best interests lie and only that.

Authority to foster

88 By letter 23 May 2005, Ms Palmer notified Applicants that their authority to foster children had been revoked. The Applicants contend that, contrary to the stated reasons given by Anglicare, the decision was taken in order to thwart their efforts to have the decision to remove the subject child reviewed by the Tribunal. (See QW and QX v Director-General, Department of Community Services [2005] NSWADT 141 [20]-[23])

89 No useful purpose is served by exploring the truth of those allegations. Our task is to determine on the material now available whether the decision to revoke the Applicants’ foster authority was the correct and preferable decision. In making that decision, we are required to give “paramount consideration” to the safety, welfare and well-being of children who might be placed in the care of the Applicants. In the absence of any positive findings about the allegations of physical punishment we could not be satisfied that a child placed in their care might not be at risk. Accordingly we believe that the correct and preferable decision is to revoke the authority.

Orders

1. The decision to remove the subject children is affirmed.

2. The decision to revoke the Applicant’s carer authorisation is affirmed.


Pseudonyms

Mr QW and Mrs QX: The Applicants

TL: Eldest girl of the TN family, who left the placement after six months, then aged 13

TM: Eldest boy of the TN family, who left the placement after two years.

QY: Middle child of the TN family, who left the placement in June 2004.

TJ: Youngest girl of the TN family, who was removed from the placement with the subject child in December 2004.

Subject child: Youngest girl of the TN family, who was removed from the placement with in December 2004.

TN: The birth family of the above children.