RP v Minister for Community Services

[2005] NSWADT 198

CITATION:	RP v Minister for Community Services & ors [2005] NSWADT 198
DIVISION:	Community Services Division
PARTIES:	APPLICANT RP RESPONDENT Minister for Community Services FIRST JOINED PARTY SA SECOND & THIRD JOINED PARTY SB and SC
FILE NUMBER:	054030
HEARING DATES:	19/07/2005
SUBMISSIONS CLOSED:	07/19/2005
DATE OF DECISION:	08/23/2005
BEFORE:	Smyth M - Judicial Member
APPLICATION:	Stay of proceedings
MATTER FOR DECISION:	Premliminary Matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Children and Young Persons (Care and Protection) Act 1998 Community Services (Complaints, Reviews and Monitoring) Act 1993
CASES CITED:	Williamson -v- Director General, Department of Transport [2000] NSWADT 165
REPRESENTATION:	APPLICANT In person RESPONDENT D Wells, Solicitor FIRST JOINED PARTY In person SECOND & THIRD JOINED PARTY In person
ORDERS:	Application dismissed

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

Background

1 On 25 July 2005 I gave oral reasons for my decision and I now expand on these.

2 On 20 June 2005 the Department of Community Services informed the applicant that the Department had decided to remove a child from her foster care.

3 Section 126 of the Administrative Decisions Tribunal Act 1997 (Tribunal Act) applies to this decision. In these reasons because of the sensitivity of the matter I have decided not to publish any details that could identify the applicant or the child who is the subject of this application. The Applicant is referred to as RP, the child as RQ, the child’s maternal grandmother as SA, his adoptive grandfather as SB and his adoptive grandmother as SC.

4 The child had been in the care of the applicant since 18 September 2003 when he was five weeks old. On 11 July 2005 the applicant applied to the Administrative Decisions Tribunal for a review and an urgent stay of that decision. These reasons only deal with the stay application.

5 The child was born on 12 August 2003. Although his mother and father wanted to care for him, they were unable to and a placement was required. His maternal grandmother, SA, cared for his sister, then one year old. However, due to ill health at that time she was not able to care for him as well.

6 Material provided by the Department of Community Services indicates that at that time the child’s maternal grandmother had just separated or was in the process of separating from her husband. They had been in a relationship since approximately December 2001 and had married in July 2002. The applicant, RP, is the daughter of the child’s maternal grandmother’s ex-husband. The maternal grandmother, SA, and the applicant’s father resumed their relationship for approximately eight weeks in February 2004 before separating again, and they remain separated.

7 Following an assessment process it was determined that the child’s mother and father were unable to care for the child due to mental health issues, and a final care order was made by the Children’s Court on 22 December 2003. The child was placed under the parental responsibility of the Minister until the age of eighteen.

8 The care plan from December 2003 stated that the carer, the applicant RP, was a related family member. That plan envisaged ongoing contact between the child, his parents and his extended family. The plan stated that the placement ensures the child remains united with his extended family and ensures contact with his siblings. The plan refers to his birth parents’ desire to care for him and the importance of him being familiar with his parents. From the material before me it appears that the Minister for Community Services and the Department of Community Services had no concerns about the child’s parents having regular contact with the child. The issue was really that they were not able to look after him if he lived with them.

9 The plan addressed permanency planning. It stated clearly that the child would remain in the care of the applicant until he attained eighteen years. The plan also referred to the possible adoption of the child by the applicant and indicated that with the permission of the parents a desire for adoption was being discussed. Tentative consent to adoption had been made by the mother and the plan indicated that written approval would be sought. Consequently the child has been in the care of the applicant since he was five weeks old. He is now twenty three months old.

10 In these proceedings the applicant was unrepresented and was assisted by the Foster Carers’ Association.

Jurisdiction

11 When giving oral reasons for my decision I relied on particular provisions regarding jurisdiction. There is no issue that the Tribunal has jurisdiction to review the decision to remove the child from the daily care and control of the Applicant however they were not the appropriate provisions. The correct provisions are s 245 (1)(c) of the Children and Young Persons (Care and Protection) Act 1998 (Care and Protection Act), s 28 (1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993, and s 38 of the Administrative Decisions Tribunal Act 1997 (‘Tribunal Act’).

12 The Tribunal’s power to grant a stay is found in s 60 of the Tribunal Act. Under s 60 of that Act the Tribunal’s power is limited to making orders appropriate to secure the effectiveness of the determination of the application. While I must take into account the interests of affected people, in this case the applicant, the child, his siblings, his maternal grandmother, his adopted grandparents and his parents, submissions made by the administrator and in this case the Minister for Community Services, and the public interest, the power to order a stay at all does not arise unless the Tribunal considers a stay is appropriate to secure the effectiveness of the determination of the application, and in reaching my decision the interests of the child must be given paramount consideration.

13 In Williamson -v- Director General, Department of Transport [2000] NSWADT 165 at [15] the Tribunal gave the example of a situation where the Tribunal sets aside the decision under review, only to find that while waiting for the decision the applicant has, because of the effect of the original decision, ceased trading or is unable to restart operations. In addition, a stay should be granted if the applicant would be likely to suffer “irreparable loss”. In Williamson at [18] the Tribunal gave the following examples:

The removal of a child because of a care order, or the loss of reasonable employment prospects because of a licence suspension, might, depending on the circumstances, be examples of “irreparable loss” in some of the review matters in this tribunal’s jurisdiction.
Internal Review

14 In a letter dated 8 July 2005 the applicant requested an internal review. The Department is in the process of organising that review. It has not been conducted as yet.

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

16 In this instance the application was made very promptly and the circumstances of her application are urgent given the decision to remove the child. In my view it is necessary to deal with the application in order to protect the Applicant’s interests and the necessary elements of s 55(2)(c) are satisfied. Therefore the Tribunal can proceed to determine this application.

Joinder Applications

17 The maternal grandmother of the child, SA, made an application to be joined as a party. She submitted that she had an interest as she was his blood grandmother, she had the care of the child’s three year old and six month old sisters, and was in regular contact with the child’s mother, her own daughter. There was no objection to her joinder by the applicant or the respondent. I am satisfied that in accordance with s 67(4) of the Tribunal Act, her interests are affected by the reviewable decision and join her as a party.

18 The child’s mother was adopted and her adoptive parents, SB and SC, also made an application to be joined as parties. They submitted that their interests would be affected as they are also the child’s adoptive grandparents and have had a relationship with the child since birth. They are concerned for the welfare of all three of their adopted daughter’s children. There was no objection to their joinder by the applicant or the respondent. I am satisfied that in accordance with s 67(4) of the Tribunal Act their interests are affected by the reviewable decision and join them as parties.

Evidence before the Tribunal

19 I now turn to the material that was before the Tribunal in this stay application. The material from the applicant included a document titled “[RQ]’s access 2003 to 2005” written by the applicant. There were statements from three witnesses declaring that they had been present on occasions when the child was either dropped off or returned from access visits. There was a letter from the Department of Community Services to the applicant dated 7 July 2005 and a letter from the applicant to the Department dated 8 July 2005.

20 The respondent’s material included the Department’s care plan made under s 78 of the Children and Young Persons (Care and Protection) Act 1998 that commenced on 15 December 2003. There were statements tendered from three staff members of the Department of Community Services: Charles Bannister, the case work manager, Ms Wendy Rhodes, the manager, client services, at the community service centre, and a statement from Kara Hopkins, the case worker. The statement from Kara Hopkins included annexures A to L.

21 The maternal grandmother, provided a statement dated 16 July 2005 and the adoptive grandparents provided a letter from them dated 14 July 2005 to the Registrar of the Administrative Decisions Tribunal and attachments, including a copy of an MSN conversation between the adoptive grandmother and the applicant dated 19 January 2005, a letter dated 30 January 2005 from the child’s great grandmother, to the applicant, a letter from them dated 30 January 2005 to the applicant, and an email sent to them from the applicant dated 7 February 2005. A document dated 17 July 2005 entitled “comments from [SB and SC]” and a document entitled “family tree, [RQ].”

22 Oral evidence was given by the applicant [RP], the children’s grandmother [SA] and the child’s adoptive grandmother [SC]. In line with well established authorities regarding proceedings of this kind there was no cross-examination of witnesses and each party made submissions.

Discussion of evidence and submissions of parties

The Applicant

23 The applicant did not deny difficulty in organising access and submits that she had been trying to get this resolved since January 2004. She submits that the Department intervened at the request of both parties and proposed a set day monthly. She says she had provided access fortnightly since the child came into her care over and above the monthly access set by the Department. She submits that SA agreed to fortnightly visits in March 2004 and that she has complied with this. She says the reason the handover of the child occurred at a Department of Community Service’s office rather than at the grandmother’s house is because SA did not want her coming to her house after the separation from the applicant’s father.

24 The applicant lives fifty two kilometres out of the country town the maternal grandmother lives in and has driven the child in at least once a month to the town. She states that she has done most of the transport. She says that she has tried to organise access visits but that the Department made her feel it was inappropriate to give too much access to the child. She refers to the 24 December 2004 record of minutes of a meeting to discuss contact plans where she was advised overnight visits would be traumatic. She submits that she has complied with the care plan.

25 She does not dispute that she refused mail from the adoptive grandmother and that she did not want to speak to her.

26 She states that she has been the child’s only constant parent figure since he was born and submits it would be hugely detrimental to him to move him given the attachment he has formed to her in the past couple of years. She submits that despite her efforts to get assistance from the Department of Community Services in resolving the matter, initially that Department treated it as a family matter and did not intervene. She submits that the child is not prevented from having access to his family. The concern is the length of visits.

27 She further submits that as SA has the care of a six month old, a three year old, plus a sixteen year old and a child with Down Syndrome, she questions her capacity to care for a two year old and provide the 24 hour, 7 day a week care for the child that has been recommended by a psychologist. In essence, her submission is that it is in the best interest of the child to remain with her.

The Minister for Community Services

28 The Minister for Community Services submits that the rationale for the placement with the applicant was that it was a family placement and there would be ongoing and natural family contact between all the parties including the child’s sister. The care plan provided for a formal amount of access but also anticipated that the child would have informal access to family members by being placed with the applicant as she would be involved in family occasions. The child would have been placed with his grandmother but for her health difficulties at the time.

29 The Minister submits that there is acrimony in the relationship between the foster carer and the child’s family, and the breakdown in the relationship has had a serious impact on contact arrangements between the child and his birth and extended families. The child is not obtaining the informal access to the family that was envisaged in the original care plan. The increasing level of isolation from his family is not in his interests or that of his siblings or family. The siblings are being denied the extent of contact that is in their best interests and this can be facilitated by residing together. The Minister submits it is no longer a family placement in that the maternal grandmother and the applicant’s father are now separated and the period of their relationship was brief. If they were still together then it would have been more likely that there would be informal family contact.

30 The Minister submits that placing him with his maternal grandmother will provide contact with his siblings and birth parents in an unfettered manner, and that the contact with his extended family will promote his sense of identity and promote long term security for him. The Minister submits there is a narrow window of opportunity and based on their advice from a psychologist, Jacqueline Smoker, on 6 July 2005, that the move should be implemented as quickly as possible due to the age of the child. In addition the Minister relies on the statement of Charles Bannister, a Departmental officer with thirty three years experience, that it would be harmful to effect this move after any lapse in time.

31 The Minister submits that no psychological assessment of the individual child has been done as the child is too young, that several meetings have been conducted to resolve contact issues and an alternative dispute resolution session was held. These were not successful in resolving these issues and there is no prospect of a normal contact relationship working in the next sixteen years.

32 The Minister relies on s 9 of the Care and Protection Act regarding the safety, welfare and wellbeing of the child as the paramount consideration. Although the child has an attachment to the applicant and would suffer from leaving the care of the applicant, the child is not moving to a complete stranger. The carer would be his grandmother and it is imperative that the child is restored to his extended family by being placed with his two siblings in the care of his grandmother. The Minister submits it would be harmful to the child to delay this.

33 In essence the Minister submits there is a window of opportunity to make the move in the least harmful way to the child. If this is not changed in the long term, the prospect is for a significant decrease in extended family contact and until now a low level of sibling contact. Not to allow the move now would be harmful to the child.

The maternal grandmother

34 The maternal grandmother states that she should have the care of the child. She is concerned about his welfare and submits that his welfare requires being together with his sisters and an ongoing relationship with his family. She submits that he and his mother and father are developing a lovely relationship with him and living with her will facilitate this. She relies on an example of an overnight stay when time was spent with the parents. She submits that his parents are distressed at not seeing him enough. She also argues that the move to her care is in the interests of his siblings, particularly his older sister who misses him. She relies on her evidence that this child waits in bed for him to come over again and is distressed by not seeing him. While acknowledging the applicant’s love and care for the child and that that the child may miss the applicant, she submits that he will have his extended family and he belongs with his family.

35 The maternal grandmother submits the reason she did not permit the applicant to drop him off at her house for a period was because her husband had been abusive and she had been in a refuge. Later she says that she felt it was not fair to the children so she changed this. She refers to evidence regarding distress to the child, for example, having to be returned outside a police station rather than dropped off at home on one occasion, not being given access at Christmas 2004 and the applicant not providing access when his little sister was born.

36 She states that the applicant has refused to agree to her request for weekly access and weekend access so he can see his family more often. She submits that he would have been placed with her at the time if she had been well enough and that her daughter had asked her to care for him. She submits that she is now well enough and able to care for him, it is in his interests to be placed with her, and she also submits that she is willing to take part in a transition plan.

The Adoptive Grandparents

37 SB and SC submitted that it is in the best interests of the child to have more contact with his extended family. It is also in their daughter’s (the child’s mother) interests to see more of him and for his sisters to see more of him. They state that the applicant has been hostile and obstructive when they have tried to negotiate better access to the child for them and their family, and they rely on examples of incidents where access has been denied; for example, their visit in January 2005 when they had travelled a long distance with SC’s mother (the child’s great grandmother) on the understanding that an arrangement could be made to see the child.

38 They also rely on their evidence that the applicant had blocked communication with them, including the return of a letter to the applicant and the child after they had written to her asking for an explanation of the January 2005 incident. They submit that the child should be restored to his family immediately.

Conclusions and Finding

39 Section 60 of the Act provides the Tribunal’s powers are limited to making orders appropriate to secure the effectiveness of the determination of the application. While I must take into account the interests of affected people, in this case the applicant, the child, the siblings of the child, the parents of the child, the grandparents both maternal and adoptive, the submissions of the administrator, the Minister and the public interest, the power to order a stay does not arise at all unless the Tribunal considers that a stay is appropriate to secure the effectiveness of the determination and, as stated before, the child’s interests are paramount.

40 As this is a stay application it is not possible to make anything more than tentative findings on the basis of the evidence before me, taking into account that much of this evidence has not been tested. Until all of the relevant evidence is fully considered at a full hearing and tested, no determinative findings can be made. Bearing that in mind, it is evident and agreed by the respondent that the child’s physical needs have been met while in the care of the applicant. The applicant appears to love the child and it appears that the child has an attachment to the applicant. That much is also agreed by the other parties.

41 The original care plan of December 2003 was a permanent plan for the child to remain in the care of the applicant until he reached eighteen, but envisaged the placement would ensure the child remained united with his extended family and ensure contact with his older sister. The plan stated that the applicant acknowledged the importance of the child being familiar with his birth parents, and both the applicant and the maternal grandmother indicated that they would like to facilitate ongoing contact between the child and the birth parents. It appears that the placement was made as a family placement and it was intended as a permanent one. The plan envisaged both formal access visits and informal contact with his family. The child’s maternal grandmother separated from the applicant’s father around the time the child was born and although there was a period of reconciliation, that relationship has ended. The evidence before me indicates that since the child was placed with the applicant, the relationship between the applicant and the child’s family has deteriorated. That is also agreed by all parties concerned.

42 There is a significant degree of tension and acrimony between the applicant and members of the child’s extended family, particularly between the applicant and the maternal grandmother, who has the care of the child’s sisters. Although regular access visits occurred for most of the period of the placement, there have been times where access has been denied, and there are examples of disagreements over arrangements for access. The applicant and the family have not been successful in resolving these. The Department of Community Services initially took the view this was a family placement and the parties should resolve the differences themselves. When it became clear this was not working, the Department did meet the parties and also organise an alternative dispute resolution session to resolve these differences. That has not been successful and the differences continue.

43 The Department of Community Services does not have any concerns about the extended family having access to the child and believes it to be in the best interests of the child that the child is now placed with his maternal grandmother to facilitate these relationships. This is not a matter where there are any allegations of the child being abused, at least in a physical or sexual sense. The maternal grandmother already has the care of two of the child’s siblings and states that she is able to and wishes to care for the child. The Department is also of that view.

44 No bonding and attachment assessment has been carried out by a psychologist. However, the Department received some advice from a psychologist, Ms Smoker, based on information provided to her from the Department. I note that the psychologist provided an email to the Department on 23 May 2005 in which she states amongst other things an assessment would not be beneficial as it is unlikely to provide any further information that is not already known to the Department, and no evidence was taken from the psychologist at the stay hearing. However, based on information given to her from the Department, she concludes the applicant’s actions strongly suggest that the applicant is not supportive of family contact, and despite being told about the potential impact of this behaviour on the child she has continued with it. The psychologist concludes in that email that there is sufficient information to warrant terminating the placement.

45 Among other recommendations the psychologist recommended an assessment of the maternal grandmother be carried out by the Department to determine whether she is a good enough carer to care for the three siblings. She also recommended that if the child is placed with the maternal grandmother, he should not be separated from his grandmother through respite or day care until the child is three. The same psychologist also developed recommendations in consultation with a Departmental case worker on 6 July 2005 regarding the implementation of the change of placement. Her advice is that the move should be implemented as soon as possible due to his age in the light of attachment theory.

46 She also advises that the secure attachment the child has to the applicant means he will be more able to develop a secure attachment to his new carer provided he is given a great deal of nurturing and extra care by the grandmother. She concludes that given he has had ongoing contact with his grandmother and his siblings, and has a significant relationship with them, it is highly probable it will assist him to adjust to the new placement.

47 She also states that it would be beneficial for him to maintain his relationship with the applicant. However, it is more important for him to develop a secure relationship with his grandmother. It appears that this advice has been taken into account in making the decision to remove the child. As noted previously, her advice is not based on an actual assessment of the applicant and the child and other family members by the psychologist but rather on an assessment of information provided by the Department, and that must be considered when considering her recommendations. Such evidence can be examined in detail at a full hearing of the application to review the decision.

48 In this case we have a young child approaching his second birthday. He has been cared for by the applicant since he was five weeks old. If he is moved at this point there is no doubt it would be a major change for him and it appears the child has a strong attachment to her.

49 Dedicated as the applicant appears to be, in my opinion some limitations must be recognised by her in contributing to the tension and acrimony that has developed. It is acknowledged that taking on the care of a baby and toddler is very difficult, as is managing the difficult relationships that have developed between her and the grandparents. However, it appears to me on the evidence that the applicant has displayed some resistance to facilitating additional contact with the child’s extended family over and above fortnightly access visits, and that even these have presented problems on occasions.

50 The period of time taken to prepare this matter for a full hearing and have the matter heard is likely to be a few months. This is a long time in the life of a small child, and if the child is removed and spends a few months in the care of the grandmother, that may impact on the ability to secure the effectiveness of any determination the Tribunal might make should the Tribunal decide to set aside or vary the decision of the Department. That is because the child would have begun to adapt to his new placement, and the impact to the child of another move would have to be considered by the Tribunal in determining the application for a review.

51 However, that is not the end of the matter. Section 60(3) states that the Tribunal may only make an order staying or affecting the operation of a decision under review if the Tribunal considers it desirable to do so after taking into account the interests of the persons who may be affected by the determination of the application, any submissions of the administrator and the public interest.

52 In Williamson Judicial Member Rice stated at [19] that

If the threshold test is passed, and there is power to grant a stay because the Tribunal considers such an order appropriate to secure the effectiveness of a final determination, the Tribunal then engages in a balancing exercise. The appropriateness of a stay so that a determination is effective may, in the circumstances, be outweighed by the factors in s60(3) of the ADT Act, including the public interest and the effect on people's interests.
53 In this matter I agree with the respondent’s submission that the interests of the child are the paramount interests. That is in accordance with the principles set out in s 9 of the Care and Protection Act.

54 The Minister submits that the child should have as much access as possible to his birth parents and his extended family. That would be made possible by him residing with the grandmother. Although his parents are unable to care for him, the Minister has not expressed any concerns about them having access, and it is considered important for his welfare that he knows his mother and father, his siblings and his extended family. Indeed, that is encouraged in the care plan adopted in December 2003.

55 Although it appears the child has a strong bond with the applicant and stability is in the interests of the child, the child’s interests also require a sense of belonging to his family and contact with his mother and father, his siblings, his grandparents and extended family. They are not strangers to him and he has some degree of familiarity with them. The evidence before me, limited as it is, is that his grandmother is able to provide care for him and indeed would have cared for him from very early on but for her circumstances at the time.

56 The tensions that have developed between the applicant and the family of the child have not been able to be resolved, despite the efforts of the applicant, the Department and the child’s grandparents. I am of the view, based on the evidence before me, that exposure to the acrimony that exists between the parties regarding the organisation of the access to the child is not in his best interests. Neither is it in his best interests to have his opportunity to further develop close relationships with his family impeded. The evidence before me indicates that these relationships are being impeded.

57 The current limited contact with his siblings is also not in their best interests, nor the child’s. The grandparents and parents clearly have an interest in ongoing contact with the child.

58 I now turn to the applicant’s interest. There is no doubt that the applicant has an interest given her relationship with the child and the degree of care that she has provided for him for almost his entire life. She has made significant efforts on his behalf. There is also likely to be an impact on her daughter given that she has also lived with this child for the past close to two years.

59 The Minister’s submissions are clearly in favour of moving the child as quickly as possible. Indeed, the Minister argues that it would be harmful to the child not to do so. The public interest coincides with the interests of the child as the paramount consideration.

60 In my view this is an instance where the appropriateness of a stay to secure that a determination is effective is outweighed by the factors in s60(3).

61 I recognise given the nature of stay proceedings the evidence is limited and it will be fully explored and tested at a full hearing of the matter. Having considered the available evidence and submissions I am satisfied that it is not in the child’s best interests to continue to experience such limited contact with his grandparents, his parents, his sisters and his other extended family members and to continue to be exposed to the acrimony that exists between the parties. On the evidence before me the Department did not act in haste and made efforts to resolve the issues before making a decision to remove the child. I also take into account the psychologist’s view expressed to the Department that the move of the child should be implemented as soon as possible in the light of attachment theory.

62 Despite the applicant’s clear attachment to the child and her evidence of the child’s attachment to her I am not persuaded that the balance of interests lies in her favour.

63 After taking into account the evidence and the submissions before me and the factors set out in s 60 I have determined to refuse the application for a stay of the decision. I note in doing this I do not have the power to order contact, but I recommend if possible that the transition be gradual and that the applicant maintain regular contact with the child.

ORDERS

The Application is dismissed.