RP v Minister for Community Services (No 2)

[2005] NSWADT 246

CITATION:	RP v Minister for Community Services & Ors (No 2) [2005] NSWADT 246
DIVISION:	Community Services Division
PARTIES:	APPLICANT RP RESPONDENT Minister for Community Services FIRST JOINED PARTY SA SECOND & THIRD JOINED PARTY SB & SC FOURTH JOINED PARTY RQ
FILE NUMBER:	054030
HEARING DATES:	27/10/2005
SUBMISSIONS CLOSED:	10/27/2005
DATE OF DECISION:	11/03/2005
BEFORE:	Smyth M - Judicial Member; Bolt M - Non Judicial Member; Monaghan-Nagle L - Non Judicial Member
APPLICATION:	Stay of proceedings
MATTER FOR DECISION:	Preliminary 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 M Hay, barrister RESPONDENT V Hartstein, barrister FIRST JOINED PARTY T Hemsley, solicitor SECOND & THIRD JOINED PARTY In person FOURTH JOINED PARTY N Jackson, barrister
ORDERS:	The application is 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

1 In these reasons because of the sensitivity of the matter we 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.

2 On 20 June 2005 the Department of Community Services informed the Applicant that the Department had decided to remove a child, RQ, from her foster care. The child had been in the care of the Applicant since 18 September 2003 when he was five weeks old. The child is now twenty two months old.

3 On 11 July 2005 the Applicant applied to the Administrative Decisions Tribunal for a review and an urgent stay of that decision. The application for a stay was dismissed. The review matter was set down for a three day hearing beginning on 10 October 2005. On that day the parties consented to an adjournment for the purposes of obtaining a bonding and attachment assessment from an independent psychologist. At the end of that day the Applicant applied again for a stay of the Department’s decision. On 11 October 2005 the Tribunal decided that it was unable to deal with that application. On 20 October 2005 the Supreme Court quashed that decision and ordered that the Tribunal deal with the stay application in accordance with law. The Tribunal heard the stay application on 27 October 2005. Below we set out our reasons for dismissing that application.

Jurisdiction

4 It is not in issue that the Tribunal has jurisdiction to review the decision to remove the child from the daily care and control of the Applicant [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’)].

5 The Tribunal’s power to grant a stay is found in s 60 of the Tribunal Act. Under s 60 the Tribunal’s power is limited to making orders appropriate to secure the effectiveness of the determination of the application. We may only make an order under s 60(3) if we consider it is desirable to do so after taking into account the interests of any persons who may be affected by the determination, any submissions made by the administrator, and the public interest.

6 In reaching our decision the interests of the child must be given paramount consideration. Section 9 (a) of the Children and Young Persons (Care and Protection) Act 1998 states that

In all actions and decisions made under this Act (whether by legal or administrative process) concerning a particular child or young person, the safety, welfare and well-being of the child or young person must be the paramount consideration. In particular, the safety, welfare and well-being of a child or young person who has been removed from his or her parents are paramount over the rights of the parents.
7 While there was documentary evidence before the Tribunal, in line with well established authorities regarding proceedings of this kind there was no oral evidence or cross-examination of witnesses.

Background

8 At the time the child was born in August 2003 his mother and father were unable to care for him due to mental health issues, and a placement was required. On 22 December 2003 a final care order was made by the Children’s Court placing the child, RQ, under the parental responsibility of the Minister until the age of eighteen.

9 His maternal grandmother, SA, cared for his sister, then one year old, but was unable to care for RQ at the time due to ill health. The child was placed in the care of the Applicant as a related family member. The family relationship came about as the Applicant’s father and the maternal grandmother were married for a short time although they separated around the time of the child’s placement with the Applicant.

10 The care plan (December 2003) stated that the placement would ensure that the child remained united with his extended family, remained in contact with his sibling and that the Applicant was in a position to maintain the child’s future contact with his natural parents and his sibling.

11 The plan referred to his birth parents’ desire to care for him and the importance of him being familiar with his parents. The plan stated that the Applicant acknowledged the importance of RQ being familiar with his birth parents and that the Applicant and maternal grandparents had indicated that they would like to facilitate ongoing contact between the child and his birth parents. The care plan stated that the Applicant was committed to the child and he would remain in her care until he attained eighteen years. The plan indicated that tentative consent to adoption had been made by the mother and that written approval from the parents for adoption would be sought.

12 The care plan included a plan for contact. Under that plan the Applicant and the maternal grandparents indicated that they were willing to facilitate contact with the birth parents in their home and supervise contact. Contact with his sister, then one year old, was to occur on a fortnightly and monthly basis and additional contact was envisaged during appropriate family occasions such as birthdays, Christmas and other family events. The child was to have contact with significant others as facilitated and negotiated by the family.

13 On 20 June 2005 the Applicant was informed that the Department had decided to remove the child from her care and place him with his maternal grandmother, SA. On the evidence before us the main reason for that decision appears to be the conflict between the Applicant and the child’s family, the Department’s view that the Applicant has not provided the child with opportunities for contact other than the minimal requirements organised by the Department and the manner in which contact had taken place.

14 Following the decision of the Tribunal on 25 July 2005 refusing the previous stay application the child remained in the Applicant’s care and the Department implemented a transition plan of increased access with his maternal grandmother (SA), siblings and extended family. The child remained in the care of the Applicant until 11 October 2005 when he was placed with SA.

Securing the effectiveness of the final determination

15 The Applicant must first establish whether a stay is necessary to “secure the effectiveness” of the determination. That phrase has been interpreted by the Tribunal in Williamson -v- Director General, Department of Transport [2000] NSWADT 165 at [15] and [17]:

A stay will guard against situations where the Tribunal sets aside the decision under review, only to find that while waiting for the decision the Applicant has, because of the effect of the original decision, ceased trading or is unable to restart operations. In such circumstances the Tribunal’s decision would, in the terms of s 60 not be an effective one.

...

As well, a financial determination will not be effective if but for a stay, 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.

16 Although the matter will be heard in December 2005 it may be at least a month after that before a decision is handed down. In our view, given the age of the child and the period of time that will be taken for a determination, the Applicant’s will be at a relative disadvantage if the child does not remain with them in the interim. That is because the child would have begun to adapt to his new placement and the impact on the child of another move would have to be considered by the Tribunal in determining the application for a review. Although the granting of a stay does not necessarily mean that the Applicant’s will suffer an irreparable loss, we are satisfied that a stay is appropriate to secure the effectiveness of the hearing.

17 However, that is not the end of the matter. Under section 60(3) we may only make an order staying or affecting the operation of a decision under review if we consider 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.

18 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.
Interests of those affected

19 The Applicant and her daughter. The Applicant has cared for the child for a little over two years, almost his entire life. Her evidence is that she is fully committed to him, they have a significant relationship and that he has thrived in her excellent care. She describes how she, her daughter and the child have been able to settle into a happy family life. The removal of the child is likely to be a loss to her and her daughter and they both have an interest in having him reside with her. The longer the child is placed out of her care the more difficult it will be for her to establish that it is in the child’s best interests to be returned to her care.

20 The child’s siblings. The child has two sisters aged three and a half and nine months respectively. Since moving to his grandmother’s care he now has daily contact with them. There is evidence before us that he plays with his sisters, that his older sister has become attached to him and that in the past she has become distressed when contact visits have ended. In our view the siblings have an interest in being able to live with their brother as part of a family.

21 The child’s parents. The child’s parents asked the Department of Community Services to move the child into his maternal grandmother’s care and to have him placed with his siblings. There is no evidence to suggest that the Department wishes to limit the frequency of contact between the parents and their child. On the evidence before us the parents will have more opportunity to have contact with their child, to talk with him on the phone and to see their three children together than they did while he was placed with the Applicant. In our view the parents have an interest in maintaining frequent contact with their child.

22 The child’s maternal grandmother. The maternal grandmother now has the care of the child. She has been a constant figure in his life. She has requested increased contact with the child over a sustained period of time and since the child has been placed with her has cared for him daily. We are satisfied that she has an interest in having the child reside with her so that she and her family can have daily contact with him.

23 Child’s adoptive grandparents. The adoptive grandparents have an interest in maintaining their relationship with the child as part of their family. Since the child has been moved they have been able to have daily telephone contact with the child and to spend extended periods of time with him when visiting. We are satisfied that before the child was moved the Applicant had blocked email contact with them and was refusing to receive their letters or telephone calls. We are satisfied that it is in their interests to have more frequent contact with the child than was possible when the child was in the care of the Applicant.

24 The child. We now turn to the child’s interests. While s 60 requires us to take into account the interests of any persons who may be affected by the determination, the best interests of the child are the paramount interests in this matter.

25 The Applicant submitted that the child has been in her care since he was five weeks and he has known but “one mother figure”. The Applicant submitted that the only question in this application is whether the separation from her could cause harm to the child. The Applicant does not say the child suffers harm or will suffer harm. The Applicant argues that a stay is necessary to protect the child from the unnecessary harm that could potentially result from his separation from his primary carer who has been his sole carer since he was five weeks old.

26 The issue of separation anxiety and the extent to which the child is likely to suffer harm was dealt with in a report dated 10 October 2005 prepared at the Applicant’s request by Ms Watson, a psychologist. Ms Watson states that (RQ)

“has been placed in the current foster care arrangement since aged 5 weeks, and has therefore formed a secure attachment and bond of psychological dependence with the caregiver (RP).”
27 Later in her report she states
“… Consequentially his foster care placement with (RP) within 5 weeks of his birth and the subsequent two years that has elapsed has facilitated healthy emotional development and the formulation of a strong attachment relationship with (RQ) and (RP). (RP)’s undertaking of parenting in the psychological rather than biological sense, has determined (RQ’s) development of a secure attachment and recognition of RP as the primary provider of his needs for physical care, nourishment, comfort, affection, and stimulation.

Paramount in the life of any young child is their need for continuity with their primary attachment figure and a sense of permanence, and therefore an alteration of the current foster care placement and the subsequent disruption of the secure attachment relationship is likely to determine significant trauma and emotional disturbance to (RQ).”

28 In Ms Watson’s view
“Research consistently illustrates that children up to age 4 have heightened need for permanency, security, emotional constancy, and in particular, tangible continuity in significant relationships, and are therefore placed at great risk of psychological disturbance and impaired emotional development if their major attachment relationships are disrupted or severed. Typically a two year old child’s developmental response and manifestations to separation and loss may include apathy, poor feeding, withdrawal and failure to thrive, aggressive behaviours, inattention and withdrawal.”
29 Ms Watson does not specify the research that this assertion is based on.

30 In her opinion

“an alteration to the current foster care placement is likely to cause distress and disturbance to the child’s emotional development and has long-term implications on (RQ)’s developmental, social, behavioral (sic) and psychological development.”
31 Referring to the report of Ms Watson, the Applicant argues that if there is harm then the damage will have been done and may be irreparable. The Applicant also argues that the balance of convenience lies with the Applicant. If the child is returned to the Applicant then the potential for harm does not exist or is minimal.

32 The Tribunal did not have the benefit of the instructions that had been given to Ms Watson. Ms Watson did not interview or observe the child, the Applicant or other family members in coming to her conclusions. The only documentation that she states she reviewed was a letter from the child’s parents to the Department of Community Services dated 5 July 2005 and a letter from the adoptive grandparents dated 17 June 2005. In these circumstances we find it difficult to give any weight to her conclusion regarding the specific impact of a change in RP’s foster placement.

33 The Tribunal also had evidence of communications between a Departmental psychologist, Ms Smoker, and the Departmental casework staff. Ms Smoker sent an email to the Departmental caseworker, Ms Hopkins, and two other staff on 23 May 2005. Among other things Ms Smoker states that at this stage an assessment will not be beneficial as it is unlikely to provide any information that is not known to the Department. She concludes, on the basis of information given to her from the Department, that 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. Ms Smoker concludes in that email that there is sufficient information to warrant terminating the placement.

34 Her advice is that the move should be implemented as soon as possible due to the child’s age in the light of attachment theory. She also advises that if the child has a secure attachment to the Applicant then with really good parenting it is likely that he will be able to develop a secure attachment to the maternal 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.

35 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.

36 Ms Smoker’s advice was taken into account in making the decision to remove the child. The Applicant submitted that Ms Smoker’s assessment is based on a false assumption that the Applicant denied contact. The Applicant submitted that Ms Smoker has not observed the child nor conducted an assessment of the family or the Applicant in providing her opinion and that no curriculum vitae was provided for her.

37 In our view, based on the limited evidence before us at this point, Ms Smoker’s assumption was that the Applicant was not supportive of family contact rather than that the Applicant denied contact. We accept the Applicant’s criticism that Ms Smoker’s 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 taken into account when considering her recommendations. Such evidence can be examined in detail at a full hearing of the application to review the decision, particularly given that by that time the Tribunal should have a bonding and attachment report from an agreed independent expert who will have observed the child and interviewed relevant people.

38 The child’s representative, the maternal grandmother and the adoptive grandparents all opposed the application for a stay. They submitted that the interests of the child are to be given paramount consideration. Although their submissions differed slightly in essence they submitted that the original care plan envisaged that the child would remain united with his family. While they recognise that the child has an attachment to the Applicant they submitted that the Applicant has ceased dialogue with the child’s family and will not let them come to her house and has blocked contact with them. They submit that the child has a good relationship with the maternal grandmother and her representative submitted that there is no manifestation of adverse reactions by the child RQ to separation from the Applicant. They have similar criticisms of Ms Watson’s report to those of the Minister.

39 There is no evidence before us that at present the child is distressed or unhappy in his new placement. The evidence before us from his family, particularly his maternal and adoptive grandparents, indicates that he is well settled. The evidence from the Departmental officers who have observed the child since coming into the maternal grandmother’s care is also that the child appears relaxed and happy. While we place some weight on this we also recognise that they are all parties to this litigation and opposed to the stay application being granted. The evidence of Ms Wright, in an affidavit prepared five days after the child moved, is that she has not observed any distress in the child and he settled in well. Ms Wright is employed by the maternal grandmother to assist her in the care of her family on a part time basis. In assessing her evidence we note that she is employed by the maternal grandmother and that her evidence, as with the other evidence before us, has not been subject to cross examination.

40 We place more weight on the observations of Dr Sowden, a psychologist, who observed the child with his maternal grandmother at his grandmother’s home. The Department of Community Services requested Dr Sowden conduct an observation of the relationship between RQ and his maternal grandmother SA. Her report, dated 26 October 2005, was restricted to observation and no interviews or formal psychological testing were conducted. Dr Sowden’s observed RQ to enjoy a secure emotional attachment with his grandmother. Although her evidence can be tested fully at the final hearing her report impressed us as thorough and clear with many examples of positive communication between the child and his grandmother.

41 In her report, Ms Watson stated that typically a two year old’s developmental response and manifestations to separation and loss may include apathy, poor feeding, withdrawal, and failure to thrive, aggressive behaviours, inattention and withdrawal. We accept the Minister’s submission that there is no evidence before us that the child has suffered any of these since moving to his grandmother’s care; indeed the Applicant does not say that the child has suffered harm.

Submission of administrator

42 The Minister submitted that the only issue raised by the Applicant is that of possible or potential harm being done to the child if the stay application is not granted. In regard to Ms Watson’s report the Minister submitted that Ms Watson did not see the child and did not identify her sources of information. The Minister questions Ms Watson’s opinion that there is potential for harm for any child under four being removed from their primary caregiver and questions that this provides a basis upon which the Tribunal would depart from the earlier position not to grant a stay.

43 The Minister submitted that on the last occasion the Applicant has submitted that she was the child’s only constant figure, that it would be hugely detrimental to the child to remove him and the Tribunal took that into consideration, yet decided nevertheless not to grant the stay. In the respondent’s submission nothing has changed and the report of Ms Watson regarding potential harm did not go as far as the Applicant who said that harm would occur.

44 The Minister submitted that when considering whether to grant the stay the Tribunal must look at the current situation and that there was nothing more current than Dr Sowden’s report on her observations of the child the day before the stay application was heard. In regard to the Applicant’s submission that Dr Sowden was not asked to deal with bonding and attachment, the Minister submitted that the Applicant vetoed Dr Sowden as an appropriate person to prepare the bonding and attachment report agreed to at the hearing in October 2005 on the basis that she had done an earlier report regarding the maternal grandmother.

45 The Minister submitted that Dr Sowden’s observations deal with the actual situation of the child in contrast with Ms Watson’s report. Dr Sowden observed the child reading with his natural grandmother. He was not withdrawn, not aggressive, not apathetic, there was no evidence of poor feeding. There was no inattention. On the contrary, there was rapped attention. The Minister summarises the report of Dr Sowden as that “he is happy there.”

46 The Minister submitted that the Department is not suggesting that the Applicant have no contact with the child and that there is a plan that will ensure that the relationship with the Applicant continues. A contact visit took place between the Applicant and the child two days before the 27 October hearing.

47 The Minister submitted that the Applicant’s assertion that the Department’s original decision was that the Applicant obstructed the concept of frequent access is false. The Minister refers to the problems that developed, for example an incident in which his adoptive grandparents drove down from the Central Coast only to find that the Applicant had taken the child away. The Minister states that this was only one example of the conduct that led the Department to decide that the placement was never going to work.

48 The Minister submitted that the child now has daily contact with his grandmother and sisters and contact with SB and SC, his adoptive grandparents. He also has contact with his mother and his uncle.

49 The Minister argues that it is not a “balance of convenience” test as the welfare of the child needs to be given paramount consideration. If the Tribunal intends to move the child then in the Minister’s submission we need to be satisfied that the potential for harm outweighs the positives of the child staying where he is.

50 The Minister submitted that the onus is on the Applicant to show different circumstances to when the first decision was made to refuse a stay application. The status quo has now changed and the child is with the maternal grandmother. The Minister further submitted that there is no evidence that would suggest leaving the child where he is clearly happy would be anything but acceptable until the final hearing.

51 Public Interest. In our view the public interest coincides with the best interests of the child.

Findings and Conclusions

52 Given the nature of stay proceedings it is not possible to make anything more than tentative findings on the basis of the evidence before us, taking into account that much of this evidence has not been tested. In our view the original care plan of December 2003 envisaged a family placement in which the child would remain united with his siblings, his parents and his extended family.

53 The Tribunal accepts that the Applicant has been a dedicated carer for the child and that she and her daughter consider him part of their family. There is no suggestion that the Applicant has abused the child. We accept that she has an interest in having the child in her care.

54 The Tribunal accepts that the Applicant has made significant efforts to transport the child to access visits travelling a long distance from her home to do so. While there is some conflict in the evidence regarding exactly how many contact visits have occurred and how frequent they were, there is evidence that on occasions the Applicant has denied or frustrated contact occurring.

55 It is clear on the evidence before us that the relationship between the Applicant and the child’s grandmother, adoptive grandparents and other family members has deteriorated over time. It appears that problems started early on in the placement. As early as 22 January 2004 an email from the maternal grandmother to workers at the Department of Community Services stated that “… it was kind of left for (RP) and I to organize access and it just isn’t working.”

56 The evidence before us indicates that as time went on the relationship between the Applicant and the child’s family deteriorated and became acrimonious. For example, there is evidence before us that the Applicant has barred members of the child’s family from having informal contact with the child, so that the informal contact envisaged under that care plan of December 2003 has not taken place. That evidence can be fully tested at the final hearing.

57 Despite attempts to resolve the issues the evidence before us is that there is a significant degree of tension and acrimony between the Applicant and the child’s maternal grandmother. We also find that the differences between the Applicant and the maternal grandmother, adoptive grandparents and other family members have not been able to be resolved despite attempts by the Department of Community Services to do so.

58 At this stage the Tribunal does not have the advantage of an independent psychologists assessment based on interviews and observations regarding this particular child’s bonding and attachment to key figures in his life and any separation anxiety that the child may experience by being separated from them. The parties have agreed to such an assessment being undertaken and that should be before the Tribunal at the final hearing in December 2005.

59 The deterioration in the relationship between the Applicant and the child’s family has limited the opportunities for contact and in our view that is not in the child’s best interests. The weight of evidence before us is that the child has settled into his placement with his grandmother and now has contact with his siblings, parents and other family members on an unrestricted basis. While we accept that the Applicant has been his primary carer until 11 October 2005, on the basis of Dr Sowden’s observations of the child and the evidence of others who have observed him in his grandmother’s care, we are satisfied that he is not demonstrating signs of distress and that he is happy in his placement with his grandmother.

60 We are not satisfied that the child is at risk of imminent harm in his grandmother’s care. The evidence before us is that they are a loving and caring family and that he has developed a good relationship with them. Indeed in our view it would be disruptive to move the child again at this point when a final hearing will resume on 12 December 2005. The Department has indicated that the child will continue to have contact with the Applicant so that their relationship can be maintained.

61 In our view although a stay would be necessary to secure the effectiveness of the determination, having considered the factors in s 60(3), we take the view that a stay should not be granted. The application is dismissed.