RW v Minister for Education and Child Development

[2016] SASC 158

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application for Judicial Review)

RW v MINISTER FOR EDUCATION AND CHILD DEVELOPMENT & ANOR

[2016] SASC 158

Judgment of The Honourable Justice Doyle

30 September 2016

ADMINISTRATIVE LAW - JUDICIAL REVIEW - STANDING TO INSTITUTE PROCEEDINGS - PARTICULAR CASES

ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURE AND EVIDENCE - EXTENSION OF TIME - PARTICULAR CASES

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - UNREASONABLENESS

FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE LEGISLATION - CHILDREN IN NEED OF PROTECTION - POWERS AND DUTIES OF MINISTER AND DEPARTMENT

Application for judicial review.

The plaintiff is the maternal grandmother of two children who are under the guardianship of the Minister for Education and Child Development. The children resided with the plaintiff for six years.

On 14 March 2014, officers of the Department for Education and Child Development (the Department) took action to remove the children from their placement with the plaintiff after a notification was made to the child abuse report line. The children were placed in transitional accommodation and were not returned to the plaintiff’s care. In May 2014 it was determined that the children’s placement with the plaintiff would be formally terminated.

By this action, the plaintiff seeks to challenge the lawfulness of the decisions by the Department to remove the children from her care, and to not return the children to her care.

She alleges that those decisions were unreasonable having regard to the purposes and nature of the powers conferred upon the Minister under the Children’s Protection Act 1993 (SA) (the Act).

The defendant opposes the application for review on various bases, namely that the proceedings are out of time; that the plaintiff does not have standing to bring the proceedings; that the decisions or actions sought to be impugned were not unlawful; and that any relief should in any event be refused on discretionary grounds as it would lack utility.

Held, dismissing the application:

1.       The nature and the extent of the plaintiff’s involvement in, and the closeness of her interest in, the care of the children was sufficient to give her standing to challenge decisions directly affecting her care for the children. The plaintiff has standing to her challenge to the March 2014 decision to remove the children from her care, and the subsequent decision not to return the children to her care up to the point of the decision to terminate the children’s placement with her in May 2014. The plaintiff does not have standing to challenge decisions made after the termination of the children’s placement with her in early May 2014.

2.       The proceedings were commenced out of time and it is not appropriate to grant an extension of time within which to commence the proceedings; or to otherwise exercise the Court’s discretion to grant the relief sought.

3.       The extent of the Minister’s powers to make arrangements for the care of children under his or her guardianship under the Act are extremely broad in nature. The nature of the powers are such as to permit them to be exercised on the basis of an assessment of risk to a child. The Minister is not precluded from taking action to protect that child from risk even if that information cannot be substantiated or have its accuracy first tested.

4.       The Department’s files reveal an evident and intelligible justification for the decisions to remove the children from the plaintiff’s care, and not to return them to her care.

5.       Neither legal unreasonableness, nor any other ground of judicial review, has been established.

Children’s Protection Act 1993 (SA) ss 3, 4, 5, 6, 11, 16, 37, 38, 40, 43, 46, 47A, 51, 52, 52A; Supreme Court Civil Rules 2006 (SA) r 200, referred to.
Australian Conservation Foundation Inc v Commonwealth of Australia (1980) 146 CLR 493; Onus v Aloca of Australia Ltd (1981) 149 CLR 27; Argos Pty Ltd v Corbell (2014) 254 CLR 394; Hall v City of Burnside (2006) 102 SASR 298; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158, discussed.
Youngman v Lawson [1981] 1 NSWLR 439; O’Reilly v Mackman [1983] 2 AC 237; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, considered.

RW v MINISTER FOR EDUCATION AND CHILD DEVELOPMENT & ANOR
[2016] SASC 158

Civil

DOYLE J:

1. On 14 March 2014, officers of the Department for Education and Child Development (the Department) removed two boys, ZW and HW (the children), from their placement with the plaintiff, RW.  The plaintiff is the maternal grandmother of the children, and they had been living with her since late 2008.  The actions of the Department reflected an exercise of the powers of the Minister for Education and Child Development by reason of her status as guardian of the children under the Children’s Protection Act 1993 (SA) (the Act).

2. By these proceedings, the plaintiff seeks judicial review of both the decision to remove the children from her care, and the subsequent decision(s) not to return them to her care.

3. The defendants (the Minister and the State of South Australia) oppose the relief sought on various bases, namely that the proceedings are out of time; that the plaintiff does not have standing to bring the proceedings; that the decisions or actions sought to be impugned were not unlawful; and that any relief should in any event be refused on discretionary grounds as it would lack utility.

   Background

4. Although these proceedings are framed as a challenge to the “decision” on 14 March 2014 to remove the children from the plaintiff’s care, and the “decision(s)” thereafter not to return them to her care, it is necessary to understand the broader factual context and decision–making process that led to the action taken on 14 March 2014, and the Department’s subsequent action in not returning the children to the plaintiff’s care.

5. In summarising the relevant events, I have relied upon the affidavits I received into evidence on the hearing of this matter, being five affidavits sworn by the plaintiff, an affidavit sworn by the plaintiff’s solicitor Scott Valente, two affidavits sworn by Ryan Balkwill (a social worker employed by the Department with responsibility for the management and care of the children from the beginning of 2014) and an affidavit of Alen Ribar (a supervising social worker from the Department).  Both Mr Balkwill and Mr Ribar work with Families SA, the agency within the Department that provides child protection and family support services.

6. I have relied in particular upon the documents exhibited to those affidavits, being largely a selection of documents from the children’s files maintained by the Department, as well as correspondence between the Department and the plaintiff.  Neither party sought to cross-examine any of the deponents of the affidavits, and I have proceeded on the basis that the narrative to be gleaned from the combination of the affidavits and their exhibits (as summarised below) is uncontroversial. 

7. The only qualification to this is that it is plain that a number of the matters referred to in the files are in the nature of allegations or opinions rather than facts.  Where those allegations and opinions are relevant, I have mentioned them in my summary of the narrative.  However, I have included them on the basis that the fact of the allegations or opinions is relevant, and hence without making any finding as to the truth or accuracy of the allegations and opinions. 

   The children and their family

8. The children are the biological children of MW (the mother) and CF (the father).  The older of the two brothers, ZW, was born on 25 July 2005.  The younger, HW, was born on 30 August 2006.  The children were thus eight and seven years of age respectively as at the date of their removal from the care of the plaintiff. 

9. The plaintiff is the mother of MW, and hence the maternal grandmother of the children.  The children had been in the plaintiff’s care since November 2008. 

10. The plaintiff resides with her former husband (GW), who is the father of MW.  She is a part-time support worker with Aboriginal Families Support Services, and is the registered carer of GW, who is in poor health.

11. MW had her first child, a son, JW, when she was 15 years of age, on 1 January 1998.  JW has at all times lived with the plaintiff.  MW was living with her parents at the time of JW’s birth, but she moved out of the family home when JW was three years old.  The plaintiff and GW have cared for JW under an informal arrangement since that time.  JW is the children’s half-brother and was 16 years old at the time of their removal.

    Guardianship of the Minister and placement with the plaintiff

12. As mentioned, ZW and HW commenced living with the plaintiff in November 2008.  This arrangement commenced as a result of concerns by the Department about MW’s ability and suitability as a parent.  It occurred at the request of the Department and with the consent of MW.

13. As a result of ongoing concerns in relation to the children, the then Minister made an application to the Youth Court.  By order dated 12 June 2009, the children were placed under the guardianship of the Minister until they reach 18 years of age. 

14. At the time of the guardianship order, the relevant Minister was the Minister for Families and Communities.  However, since 2011 the Minister for Education and Child Development has been the Minister responsible for the administration of the Act and hence the children’s guardian under that Act.

15. At the time that the application for guardianship was made to the Youth Court in 2009, the Department was of the view that it was in the children’s best interests that they remain within the care of the plaintiff.  It was thought that the children’s best interests would be served by a family placement, given the relationships they had developed with the plaintiff and their half-brother JW while living in their home from November 2008.  However, it is apparent that the decision to place the children with the plaintiff was a difficult one, and was made despite a number of concerns held by the Department.

    Ms Whenan’s May 2009 report

16. The considerations relevant to confirmation of the children’s placement with the plaintiff in June 2009 were canvassed at length in a 52 page report dated 13 May 2009 and prepared by Rachel Whenan, a clinical psychologist from the Department.  That report was based on a number of earlier reports, information obtained from the Department’s client information system (CIS), as well as a large number of interviews conducted throughout April and early May 2009.  The interviewees included the plaintiff, the mother (MW), GW, JW and the principal and a teacher from the children’s school.  The report contained a significant amount of material relevant to the ability and suitability of both MW and the plaintiff to care for the children. 

17. It is clear from the report that MW was not able or suitable to care for the children.  She had very little by way of parenting skills, and her history of emotional, verbal and physical abuse of the children, psychiatric issues and other personal difficulties (including drug use) made her unsuitable for the task.  It was noted that this position was unlikely to change.  It was thus recommended that the children be placed under the guardianship of the Minister until they reach 18 years of age. 

18. So far as future care arrangements were concerned, and in particular the suitability of the plaintiff and GW to care for the children, the report made reference to several matters of background ascertained from the Department’s CIS and reports.  These included:

    ·A history of drug abuse by the plaintiff and GW, and their participation in a methadone programme.

    ·Reference to the plaintiff being incarcerated in 1992 for 14 months due to a drug possession offence, and GW being incarcerated for armed robbery for a period of 14 years.  There is also an undated reference to RW receiving a suspended sentence for receiving stolen goods.

    ·A 1997 notification that following GW’s release from prison he allegedly sexually assaulted MW.  The report said:[1]

    It was alleged that he entered MW’s bedroom at night, fondled her breasts and put his hands between her legs.  When MW disclosed the incident to RW, it was reported that she did not believe the incident had occurred.  It was also reported that GW physically abused MW and threatened her to withdraw her statement regarding the sexual abuse.  When MW retracted her statement, RW was described as “relieved and happy”.  MW refused to make a statement to the police as she did not wish to damage her relationship with her mother.

    ·A 2005 notification that MW was concerned that GW had sexually assaulted JW.  The report explained that as a result of this notification, JW attended an appointment with a general practitioner, but no signs of sexual abuse were observed.

    [1]    In quoting from Departmental records I have substituted my abbreviations (RW, GW, MW, CF, JW, ZW and HW) for the names of the various family members.

19. The report noted that when interviewed by Ms Whenan, JW denied that he had been abused.  GW denied that he had abused JW or MW. 

20. While there was reference in the files to MW having at one or more times withdrawn or recanted from her allegations of abuse, Ms Whenan’s report suggested that when interviewed in 2009, MW confirmed and maintained the allegations.  The report explained:

    MW recalled that upon GW’s return to South Australia he regularly used heroin and committed crimes, such as breaking into cars and houses, and holding a man at gun point.  She alleged that shortly after his return GW came to her bedroom, rubbed her back, and touch her genitals and breasts under her clothes.  MW reported that GW physically threatened her in order to force her to tell others that the sexual assault did not occur and therefore she told her mother that the incident never occurred.  She reported that this incident had damaged her relationship with him and she sometimes avoided attending her parents’ home as she felt uncomfortable with GW.  MW alleged that JW slept with GW in the same bed until recently due to him being scared at night time.  Despite this, she considered that there was not risk that GW would sexually abuse her children because they were male, she felt he was “truly sorry”, and he did not see her as a daughter at the time of the incident. MW recalled taking JW (aged four or five at the time) to a general practitioner due to concerns that GW sexually abused him, however, no evidence of sexual abuse was observed.

21. In summarising her interview of the plaintiff (RW), Ms Whenan said that she reported that she remained married to GW despite their relationship ending in 1982.  After separating, GW moved to New South Wales and he did not have any contact with her (or their children) for a few years before he rang and informed her that he was incarcerated.  Following his release he returned to South Australia to live with the plaintiff and the children.  In relation to the allegation of sexual abuse by MW, Ms Whenan wrote:

    Upon inquiry, RW was unsure if allegations that GW sexually assaulted MW were true as she had told her many different versions of the event.  RW stated that GW denied the allegations and she considered that he was not “that type of person” to have committed this offence.  She also considered that MW was “jealous” of GW when he returned home, as RW stated given some of her affection to him.  Due to this, RW also considered that there was no risk that GW would sexually abuse JW, ZW and HW.

    RW acknowledged that about three years ago JW and GW slept in the same bed for about a week while they were changing bedrooms around.  She reported that this had not occurred on any other occasion, as he now had his own bedroom.  She did not consider this to be inappropriate.

22. In the summary section of her report, Ms Whenan referred again to the allegations of sexual abuse.  She wrote:

    Further concerns were raised regarding sexual abuse allegations against GW by MW when she was a teenager and JW sleeping in his bed.  Although GW denied allegations of sexual abuse and information from JW’s interview and assessment did not suggest that he had been sexually abused, it is the writer’s opinion that JW, ZW and HW may be at risk of sexual abuse from GW given MW’s allegations against him.  Although MW was allegedly a teenager at the time and is of female gender, research suggests that sexual offenders may commit “crossover” offences, in which they target individuals of varying age and gender. …

    Furthermore, it is concerning that RW was unsure if MW’s allegations regarding sexual abuse perpetrated by GW were true and she initially did not believe MW when she made the allegations at the time.  She also considered that GW was not “that type of person” to commit such an offence and considered the children to be at no risk of sexual abuse from GW.  She also denied that MW was sexually abused by her family day carer’s son, despite information at the time suggesting that she was aware that MW complained of sore genitals and another child had witnessed the abuse against her.  Such information places into question RW’s ability to protect JW, ZW and HW from possible future sexual abuse.  Given those allegations and RW’s questioned ability to protect JW, ZW and HW from further abuse, it is recommended that GW leave the family home.

    Due to the concerns regarding allegations of sexual abuse against MW, the aggressive relationship between MW and RW, and past concerns regarding RW’s parenting of her own children, Families SA should continue to monitor the family regarding these concerns.  It is felt that an Order granting Guardianship to the Minister or other person would better enable Families SA to monitor and support the family than would Family Court Orders.

23. On the positive side, it was noted that since taking over care for the children, the plaintiff had enrolled them in kindergarten, arranged speech therapy for them, and attended several appointments regarding developmental assessments for the children.

24. Ultimately, Ms Whenan came to the view that despite her concerns, the plaintiff was able to provide a safe and nurturing environment for the children, and that they should remain in her care.  She summarised her recommendations as to future care arrangements in the following terms:

    ·The children, ZW and HW, should be placed under the guardianship of the Minister until the age of 18 years.

    ·The children and JW should remain in the care of the plaintiff.

    ·The Department should continue to monitor the family regarding these concerns.  An order granting guardianship to the Minister or other person would better enable the Department to monitor and support the family than would Family Court orders.

    ·GW should leave the family home given the sexual abuse allegations against him, and the plaintiff’s questioned ability to protect JW and the children from further abuse.

    Ongoing concerns over placement with the plaintiff

25. In January 2010, the Department carried out a “relative care assessment” in relation to the plaintiff.  The assessment was prepared by the social worker then responsible for the management of the children, Karen Saunders. 

26. The assessment contained some positive observations about the plaintiff, and the children’s development while in her care.  However, further reference was made to MW’s allegations that she was sexually abused by GW upon his release from prison and return to the family home in 1997.  The assessment made reference to the Department having “confirmed” that GW abused his daughter.  Ms Saunders explained:

    The department did confirm that the grandfather did sexually abuse the mother and then threatened her to retract the statement she had made to the police.  The worker acknowledges that these two young children are now residing with someone that perpetrat[ed] abuse against their own daughter.  While the worker is not attempting to minimise the abuse, however, it is the worker’s professional opinion that these children are not at risk of sexual abuse.  The past abuse needs to be considered in context and then appreciated in light of the current situation and the bigger picture.  The grandfather did not have any relationship with his daughter and met her once as a child in jail.  When he met MW for the second time she was 12 and he had just got out of jail after 14 years and according to MW “Saw her as a sex object” and not his daughter.  While the grandfather denies the abuse, MW states that her father apologised for the incident and no further incident occurred.  I do not think you can presume, generalise and make the leap that the grandfather will now potentially abuse two young boys.  Furthermore the grandfather is chronically ill and only manages small tasks around the home.  For the grandfather to be asked to leave the residence would be devastating for everyone concerned not to mention cruel and heartless for a man that has chronic lung disease and would potentially not survive in another unsupportive environment.

1. The assessment concluded by recommending that the plaintiff be approved as the ongoing carer of the children.

2. In May 2011, as part of its management of its ongoing concerns, the Department sought that the plaintiff enter into a “safety plan” with the Department under which the plaintiff agreed that the children would not be left unsupervised in GW’s care.  The plan referred to “confirmed sexual abuse on the children’s mother” by GW.  Both the plaintiff and GW signed the plan. 

3. However, despite signing the plan, the plaintiff and GW subsequently declined to adhere to it.  When it was due for renewal, on 22 July 2011, the plaintiff said to an officer of the Department during a home visit that she had reconsidered, and was not prepared to sign a further plan.

4. In October 2011, the plaintiff was approved as a carer for a period of a further 12 months, albeit this was said to be “subject to review”.  This approval was preceded by an assessment and correspondence within the Department which both identified some positive aspects of the plaintiff’s care for the children (referring, for example, to the children being happy, and to the plaintiff attending to their daily needs as well as cooperating with the Department) and also identified some ongoing concerns.  In particular, further reference was made to the allegations of sexual abuse by GW.  A question was raised as to the rationale for “confirming” sexual abuse when the contemporaneous files suggested the Department did not know who to believe.  The internal response was that the sexual abuse was “confirmed purely on the allegations raised by [MW]”.  The Department’s view at the time appeared to be that the children were not at risk, even without the safety plan being adhered to. 

5. The concerns about the plaintiff’s care for the children began to escalate during 2012 and 2013. 

6. The minutes of a case conference meeting in December 2012 made reference to a number of behavioural, developmental and educational concerns about the children.  Reference was also made to potential safety concerns associated with the children continuing to live with GW, as well as them having unsupervised access visits by their mother and father. 

7. The minutes of an April 2013 case conference meeting suggested an enhanced level of concern.  The purpose of the meeting was described as being “to discuss placement concerns” and obtain a psychological assessment.  The minutes referred to a number of matters, including:

   ·    Recent information from the children’s school suggesting “challenging behaviour, learning issues and unsupervised family contact with their parents.”

   ·    GW remaining in the family home despite the psychologist’s recommendation in 2009 that he leave the home due to “confirmed sexual abuse allegations”, and the non-adherence to the safety plan.  (It was also noted, however, that the Department had subsequently assessed GW as not being a risk to the children).

   ·    The plaintiff allowing unsupervised access to the children by their parents without Departmental approval.

   ·    The children having learning and speech difficulties.

   ·    The plaintiff being “stretched beyond her capacity”.  While able to meet the children’s physical needs (such as feeding and clothing them, and taking them to their appointments and other commitments), she was struggling to meet (and had limited insight into) their emotional needs.  Their lives were chaotic and lacking in routine.  The lack of bedtime routine in particular had resulted in the children often being tired and struggling to learn. 

   ·    One of the children accused their older half-brother, JW, of being physically abusive toward him.

   ·    The plaintiff was defensive when challenged by departmental social workers.  She had become resistant to engaging with the Department, with family members having an “instinctive reaction to draw inwards.”

8. The minutes concluded:

   All meeting participants agreed that RW has significant parenting deficits and the boys’ care environment needs to improve.  Families SA have considered removing the boys from RW’s care due to her inability to meet their needs and keep them emotionally safe.  Families SA does not have a clear understanding of what is happening in the placement and how the boys are feeling because all family members can be dishonest, guarded and secretive.

9. It was decided to discuss the concerns with the plaintiff to give her an opportunity to improve before considering removal of the children.  It was resolved to meet again with the plaintiff to discuss the concerns and recommendations once a psychological assessment, to be carried out by Srdjan Vajdic (a senior clinical psychologist in the Department), was completed.

   Mr Vajdic’s May 2013 report

10. In May 2013, Mr Vajdic provided a report on the psychological assessment that he had carried out.  The assessment was again based upon a consideration of a number of historical reports, as well as a number of interviews (including with the children, MW, the plaintiff and GW).

11. The report contained a detailed summary of the history and concerns outlined above.  Mr Vajdic’s conclusions were as follows:

    Information obtained during the current assessment indicated that ZW and HW have complex care needs and are experiencing psychological difficulties that can be linked to their poor early care.  The children’s ongoing experience of significant emotional and behavioural difficulties despite the fact that they have been placed in the care of their maternal grandparents since late 2008 is very concerning.  RW and GW appear to have endeavoured to provide the best possible care environment for the children, but a number of factors were identified during the current assessment that have negatively impacted on their efforts.  Notably, RW was identified as having poor ability to identify and respond to the children’s emotional needs, while GW’s deteriorating physical state significantly reduced his capacity to care for and interact with the children.  The home environment for the children appears to have reached a chaotic state as RW and GW’s capacity to cope with the demands of caring for the children and their other responsibilities became overwhelming.

    The writer holds serious concerns about the children’s welfare if their home situation is not improved so that they can be provided with a care environment that is consistent and responsive.  ZW and HW already seem to be demonstrating aggressive tendencies and poor social skills that have limited their ability to develop a supportive network, while their concentration difficulties (and hypervigilance) are impacting negatively on their school engagement.  The severity of the children’s difficulties is likely to increase as they grow older rather than decrease.  Encouragingly, RW and GW indicated a willingness to engage with services to improve the children’s care environment, but the writer notes that improving their care sufficiently will be difficult for both them and the children.  Notably, RW is likely to require support to expand her parenting skills inventory and overcome long-term personal difficulties that have prevented her from accepting assistance and led her to over-extend herself (including accepting responsibility for ensuring the wellbeing of a number of individuals and animals).  Of crucial importance, the children will need to be provided with greater consistency and nurturance in their home environment and certainty regarding their family relationships.  This will necessarily include a more structured approach to managing ZW and HW’s contact with their parents.

12. Mr Vajdic then made a number of recommendations that included:

    ·    Parenting courses and therapeutic intervention.

    ·    Limitations upon GW’s care given his deteriorating physical health and to reduce the risks stemming from the allegations he had sexually abused MW as an adolescent.

    ·    Regular respite care.

    ·    Regular contact with, and a development of the relationship with, the Department.

    ·    Support to assist JW to resolve his psychological difficulties.

    ·    Structured access arrangements with the children’s parents.

    ·    Meetings between the Department, the plaintiff, GW, MW and the children’s father CF to develop a process to achieve the above.

    ·    Reviews every six weeks, and the setting of specific goals to ensure sufficient progress.

13. Mr Vajdic concluded by recommending that the Department “consider terminating the children’s placement with RW and GW if a determination has been made (during the review progress) that insufficient progress is being made.”

14. A copy of this report was provided to the plaintiff. 

    Departmental intervention from May 2013 onwards

15. Following the psychological assessment report in May 2013, the Department engaged in a period of intensive intervention with the plaintiff and GW.  In accordance with the recommendations of the psychological assessment reports, six weekly review meetings were held between the plaintiff and a care team within the Department.  GW attended some, but not all, of these meetings.  During this period there were also a number of internal meetings within the Department in relation to the progress of the plaintiff in addressing their concerns.

16. The first meeting with the plaintiff (and GW) was on 21 May 2013.  The case meeting minutes record that Mr Vajdic’s report and recommendations to improve the stability of the placement and the children’s emotional needs were discussed.  While the plaintiff was described as being in denial of the children’s behavioural needs, she acknowledged that changes needed to be made.  The minutes also recorded that the plaintiff was informed at this meeting that if changes were not made, the plaintiff would be putting the children’s placement at risk, and the Department would have to consider removing them from her care. 

17. On 25 June 2013, an annual review in relation to the circumstances of the children was held pursuant to s 52 of the Act.  It was noted that there were a number of concerns about the placement, and that there was a further review meeting planned for the following week. 

18. On 2 July 2013, the plaintiff met with Katrina Innes (the social worker from the Department then responsible for the management of the children’s care) and Mr Vajdic.  The minutes of that meeting record that the plaintiff considered she had begun to change, and had benefited from the parenting course she had attended.  It was also noted that there had been significant improvements in ZW’s concentration and behaviour since his recent commencement of Ritalin medication.  The plaintiff reported improvements in the children’s behaviour at home, as well as an increase in the time she was spending with them.

19. However, the minutes of an internal Department meeting on 17 July 2013 indicate that there were concerns that the plaintiff was not following through on her agreements with the Department regarding the care of the children.  Concerns were also expressed about an incident of “rough handling” of the children by the plaintiff which had been observed by officers of the Department. 

20. There was an internal meeting, and a meeting with the plaintiff on 26 July 2013.  The Department’s concerns were discussed with the plaintiff.  She was told that she needed to work with the Department and to share control.  The possibility of the placement coming to an end was mentioned.  The plaintiff agreed to work and communicate with the Department.

21. Further internal meetings and meetings with the plaintiff occurred on 19 September 2013 and 12 November 2013.  At the meetings on 12 November 2013, there was discussion of a report from the children’s school as to violent behaviour by HW, as well as an incident of sexualised behaviour by him (involving him pulling his pants down, showing his penis to other students and asking female students to ‘suck his cock’ while making ‘humping’ actions towards them).  The minutes noted that while some progress had been seen in the children’s performance at school and behaviour more generally, concerns remained in relation to their care environment, lack of boundaries, family contact and behaviour at school.

22. During the course of the meetings, the care team discussed with the plaintiff services that were available to her and GW.  The plaintiff was advised on more than one occasion that the placement was at risk of breakdown if improvements were not made in relation to the care of the children.  The services offered to the plaintiff and GW included additional training.  The plaintiff undertook some programmes at the Child and Adolescent Mental Health Service.  However, the plaintiff and GW declined the in-home and community based services offered to them by the Kinship Care team which is part of Families SA. 

23. Despite the services that were provided to the plaintiff and GW, the Department observed that the plaintiff failed to make progress or demonstrate change in her caring for the children.

    Decision to remove the children from placement with the plaintiff

24. On 14 January 2014, there was a meeting between Mr Balkwill and the principal social worker in which concerns in relation to the placement with the plaintiff were discussed.

25. In his affidavit, Mr Balkwill explained that on 5 March 2014, a case conference was held.  Present with him were Ms Innes (social worker), Mr Ratsch (principal social worker), Mr Ribar (senior practitioner) and Mr Vajdic (psychologist).  During that meeting it was concluded by consensus that the plaintiff and GW were unwilling or unable to address the concerns raised by the Department or to engage in community support.  All of those present at the meeting reached a consensus that the placement should be terminated. 

26. Mr Balkwill has not been able to locate a formal written record of the consensus or decision reached at the 5 March 2014 meeting.  However, the handwritten notes of the meeting indicate that the outcomes were to consult with principal Aboriginal consultant, Annette Groat, in accordance with an internal protocol, for Mr Vajdic to produce a summary psychological report, and for Ms Innes to write a summary report and begin scoping for a new placement for the children.  The notes are consistent with an intention or decision to remove the children from the plaintiff’s care.

27. Before this decision could be actioned, on 14 March 2014, at approximately 3.00 pm, a call was made to the Families SA child abuse report line, which raised a care concern in relation to the safety and wellbeing of the children.  The information received from the notifier was to the effect that at lunch time that day some year 7 boys heard HW telling two other year 3 boys that he and ZW touched and licked each other’s penises, that they slept naked together, and that they stuck fingers or sticks up each other’s “bums”.  HW was also overheard saying that JW and ZW took photos of each other naked, that JW showed them these photos and “porn”, that JW and ZW sleep together, and that JW and ZW also put their fingers and sticks up each other’s “bums”.  The notifier expressed concern that another boy in their class was due to sleep over at the children’s home that night.

28. The operator who received the call notified Mr Balkwill immediately by telephone of the information given the serious nature of the concerns raised.

29. Mr Balkwill explained that as a result of the information received, and in light of the other high risk factors already existing in the placement, an assessment was made that it was not possible to ensure the safety of the children within the home.  Mr Balkwill said that he made a decision to move the children to another placement while the matter was investigated.  The decision took into account advice received from the office manager Linda Hurley, principal social worker Brenton Carr, principal Aboriginal consultant Annette Groat and assistant director Domenic Portolesi.

30. At 5.45 pm on 14 March 2014, Mr Balkwill telephoned the Department’s crisis response unit to request action to transition the children.  The response unit arrived at the home of the plaintiff at about 9.00 pm that evening.  The children were removed and initially placed together in transitional accommodation.  A decision was made not to inform the plaintiff at that stage of the reasons for the removal, primarily so as not to prejudice the expected police investigation.

    Events following removal on 14 March 2014

31. Subsequent to their removal, the children were interviewed by the South Australian Police and Child Protection Services in relation to potential sexual abuse.  The investigation by the police was inconclusive.  The police ultimately determined that there were no grounds for criminal proceedings.

32. Following the removal of the children from her care, the plaintiff engaged numerous individuals and organisations to advocate on her behalf to seek a reversal of the decision.  The plaintiff also spoke to officers of the Department multiple times in relation to the decision to remove the children.

33. On 17 March 2014, the plaintiff attended Families SA’s Woodville office.  She spoke to Mr Ribar, who advised the plaintiff that he was not prepared to discuss the matter at that time, because of the nature of the allegations.  The plaintiff was advised that the Department was not able to provide her with an update, other than that the information received was serious.

34. On 18 March 2014, Denise Langton, the Executive Manager Client Services of Grandparents for Grandchildren, emailed the Minister on behalf of the plaintiff.  In response to this email, on 26 March 2014, Mr Balkwill provided a memorandum in relation to the action to remove the children.  The background set out in Mr Balkwill’s 26 March 2014 memorandum included:

    ·    Safety concerns in the placement were identified from the outset.

    ·    There is confirmed childhood sexual and physical abuse recorded for MW.  Families SA recorded history details GW having sexually abused MW in 1997 and then physically abusing her in an effort to have her withdraw her statement.

    ·    Both RW and GW have a significant criminal history which includes prolonged periods of incarceration for drug related offences, burglary’s and armed robbery.

    ·    Further early concerns identified for the placement were with regards to poor supervision, routines, consistency and boundaries.

    ·    Of concern has been JW’s ongoing aggression and violence towards HW and ZW which has resulted in injury.  RW and GW deny this occurs despite disclosure from HW.

    ·    Safety plans were agreed upon in an effort to minimise the risks in the placement and this included that RW was not to leave HW and ZW unsupervised with GW or JW.  This agreement was not kept by RW who declined to sign subsequent agreements at the point of review.

    ·    There was limited Departmental involvement with the family until HW and ZW started school and further concerns emerged.  The concerns pertained to challenging behaviour by HW and ZW and the understanding that they were having unsupervised contact with their birth parents.

    ·    Information suggested the boys were also frequently left in the care of JW and or GW.

    ·    RW has consistently declined in home support from the Department and has responded defensively to concerns and suggestions raised by the Department.

35. The memorandum went on to refer to Mr Vajdic’s May 2013 report, the period of meetings and intervention in the second half of 2013, and the early 2014 consensus or determination “that insufficient progress was made so to discontinue the 6 weekly review meetings and commence a briefing process to seek approval to end the placement.”  The memorandum then referred to the information received on 14 March 2014, which was described as suggesting “that behaviour of a serious and sexual nature was occurring and that the origins of this behaviour may be within the household.”  It referred to an internal consultation that occurred with a view to taking immediate action, adding:

    As the serious concerns occur in the context of a high number of risk factors in the placement it was felt that it would not be possible to add safety to the home and a decision was reached to move the boys to another placement whilst the matter was investigated.

1. The memorandum concluded by explaining why it was considered undesirable to inform the plaintiff and GW of the reasons for the removal at the time of removal.

2. This memorandum was then incorporated into a briefing note to the Minister, which appears to have been prepared (or at least finalised) some time in May 2014.  Whilst the May 2014 Ministerial briefing was provided primarily for the purpose of seeking approval for the proposed response to Ms Langton, it provides useful, and relatively contemporaneous, insight into the Department’s rationale for the action taken in March 2014.

3. After setting out the background to the children’s placement with the plaintiff, and the guardianship order of June 2009, the May 2014 Ministerial briefing included the following:

   The Department’s records indicate that both RW and GW have a significant criminal history, including prolonged periods of incarceration for drug related offences, burglary and armed robbery.  However, RW’s criminal history check of 24 August 2010 shows that she was not adversely recorded.

   RW is also caregiver to GW, who has a chronic degenerative respiratory disease and consequent physical incapacity.

   Case Management

   Safety concerns in the placement were identified by the Department from the outset in 2009.  These included concerns about RW’s poor management of supervision and routines as well as inconsistency with parenting and boundary setting.

   In 2010, concerns were raised that unsupervised access was occurring with the boys’ father without the Department’s knowledge and contrary to the recommendations of the 2009 psychological assessment.  Other concerns were that access with the boys’ mother was erratic and was characterised by conflict between RW and MW.  The boys were also exhibiting challenging behaviours at school.

   Case recording from 2009 to 2012 is minimal and minimal decision making notes are available as to the Department’s intervention in relation to these concerns or for the case management process.

   However, a Safety Plan signed by RW and GW on 4 May 2011 is recorded on CIS.  It addresses concerns that JW was aggressive towards ZW and HW and specifies that GW has a confirmed history of sexual abuse.  RW and GW agreed that ZW and HW would not be left in JW and GW’s unsupervised care.  Subsequently, RW refused to sign any further Safety Plans.  No case notes are available as to how safety for the boys was then case managed.

   …

   Decision to terminate placement

   In May 2013, a Families SA Psychologist assessed that ZW and HW have complex care needs and were experiencing psychological difficulties that can be linked to their poor early care.  The assessment expressed a high level of concern that the boys were experiencing ongoing significant emotional and behavioural difficulties despite the fact that they had been in the care of their grandparents since 2008.

   RW was identified as having poor ability to identify and respond to the children’s emotional needs, the home environment was chaotic and the grandparents were overwhelmed with the demands of caring for the children and their other responsibilities.  Of significant concern was RW and GW’s disclosure to the Psychologist that the children usually slept in GW’s bed at night (this was corroborated by ZW).

   The Psychologist expressed serious concerns for the children’s welfare if their home environment was not improved.  A number of recommendations were made including that 6 weekly review meetings should be held in order to set and review goals to ensure sufficient progress was obtained.  The Department was advised to consider terminating the placement if insufficient progress was made.

   The 6 weekly meetings were established.  The carers attended and throughout 2013, discussions were progressed with them regarding the Department’s concerns about the placement.  These meetings were well documented and the carers were provided with the minutes from all meetings.

   However, minimal changes were achieved and the Department still had concerns about the impact of the placement on the boys’ development and progress.  In February 2014 a case conference was held about this and it was determined that the placement should be terminated.  The process to achieve this was interrupted by the care concern that resulted in the children’s removal from the placement on 14 March 2014.

   …

   Removal from grandparents’ care

   On 14 March 2014, the Department removed ZW and HW from the maternal grandparents’ home and they were placed and remain in short term residential care at Modbury North.  JW remains living with the grandparents at Prospect.

   Following correct case management procedures, ZW and HW were removed because Families SA had received information that ZW and HW had been sexually abused in the home by JW and that they were at ongoing risk of this abuse.  The notification specified that ZW and HW had been overheard discussing details of JW showing them pornography and all three boys practicing sexual acts together.

   As these serious concerns occurred in the context of a high number of other risk factors in the placement, it was believed that it would not be possible to add safety to the home.  Therefore, a decision was made to immediately move ZW and HW to another placement while the matter was investigated.

   Concerns in the correspondence about the nature of the removal

   The Families SA Supervisor recommended that the staff involved in the boys’ removal should not advise the maternal grandparents about the reasons for the intervention, due to the criminal aspect of the concerns.  This was because it was alleged that JW had taken sexually explicit photographs of ZW and HW and these were likely to have been in JW’s possession at the house.  The Manager elected to act with caution to ensure the children’s safety and provide deliberately vague information so that JW, who was in the home at the time was not provided with an opportunity to remove evidence.

   Further, there was concern that if they were forewarned about the decision to remove the boys, the grandparents would likely engage in hostile and inappropriate debate about the concerns and create a more difficult situation for ZW and HW.

   The removal was conducted by two Families SA workers supported by three police officers.  The grandparents were informed that serious concerns had been reported regarding the welfare of ZW and HW, but that the nature of the concerns could not be disclosed.

   Current situation

   Families SA has completed an investigation into this matter and have assessed that ZW and HW are at risk from JW and that RW and GW are unable to meet their needs.

   On 1 May 2014, Families SA informed RW that the boys would not be returning to her care.  She was unhappy with this outcome and disagreed with Families SA’s assessment.  She had agreed to regular access with the boys as supervised by Families SA.

4. The briefing went on to note that the children were presently in transitional care.  While they had exhibited some disruptive behaviour, they generally appeared to be settling in well and responding to routines and boundaries.

5. The May 2014 Ministerial briefing also noted that Families SA was continuing to assess the children and to explore possibilities for a kinship placement or other long term placement.  The briefing concluded by noting that the examination of the case had highlighted some significant case management deficiencies in relation to the early case management decision making and case recording.  As a result a formal case review had been ordered.

6. It appears that the May 2014 Ministerial briefing was prepared after an email from the Department’s psychologist involved with the care of the children, Mr Vajdic, to the relevant social worker, Ms Innes, dated 24 April 2014.  Indeed Mr Balkwill described Mr Vajdic’s email as having been provided to assist him to prepare the briefing.  The email from Mr Vajdic was entitled “Summary of recent psychological involvement regarding ZW and HW” and contained a number of observations in relation to the position throughout the period 2013 to 2014. 

7. In relation to the period leading up to his May 2013 assessment, after referring to various matters, including the children’s lack of development in the period since their placement began in 2008, Mr Vajdic wrote in his April 2014 email:

   It seemed to me that RW’s life experiences have not equipped her to provide a nurturing and responsive care environment to the children which caused particular problems for ZW and HW (due to their elevated need for a responsive caregiver).  RW displayed a life-long and strong tendency to avoid any situations in which she might feel criticised or put at fault.  Therefore, her reaction to the children’s deteriorating functioning has been to avoid them and deny any existence of problems (often blaming external parties for the children’s difficulties).  In RW’s eyes, accepting that the children have difficulties would reflect negatively on the care she had been providing to them.  I believe that RW and GW have been attempting to care for the children to the best of their ability, but their own physical limitation and psychological difficulties prevented them from providing the children with the care environment that the children required (in order to maintain their wellbeing).  Overtime, this resulted in the children’s care environment becoming increasingly chaotic to the point where they struggled to develop a stable sense of their relationships or themselves.  In effect, I believe that the chaos the children had experienced prior to their placement with RW and GW has been multiplied by the increasingly chaotic environment they encountered in their placement.  This is highly likely to have contributed to their exceptionally poor ability to regulate their emotional states.  Furthermore, concerns were raised that GW was recorded as having sexually abusing the children’s mother when she was an adolescent and the risk this posed to the children (including the risk of them suffering sexual abuse or being coached to perpetrate such abuse).  While the assessment did not produce clear evidence that the children have themselves been sexually abused, RW’s complete denial of the allegations and refusal to act protectively were both highly concerning.  Other areas of concern involved the children being left in GW’s care, despite the fact that his poor health prevented him from being able to provide care to (or even supervise) the children, and that the children were being physically abused by JW (their older brother who had been residing with RW since birth via a private arrangement).

8. Mr Vajdic then referred to the recommendations he had made in 2013 which he had made on the basis that his concerns might have been able to be addressed through intervention.  He described in some detail the subsequent steps taken, but lack of progress, in relation to the children’s care throughout the balance of 2013.

9. In relation to the events of 2014, Mr Vajdic wrote:

   Following the above, Families SA received information in March 2014 that the children had been engaging in sexually abusive behaviour with each other and JW.  It was uncertain how they had come to engage in these behaviours.  ZW and HW were placed in Transitional Accommodation (TA) following this development (to ensure their safety and enable an investigation to occur).  I note that RW had previously made threats to abscond with the children and had approached the children’s school without permission following their placement in TA.  ZW and HW currently remain in TA and while they continue to exhibit difficulties, their behaviour and responses are noticeably improved compared to when they were in RW and GW’s care.

   Given all of the above information, I am of a strong opinion that ZW and HW should not be returned to RW and GW’s care.  I do not believe that RW and GW are able to provide the children with adequate care (compared to the children’s needs) nor do I believe that further intervention would result in them improving their parenting capacity.  Should the children be returned to RW and GW’s care, I believe they would be at significant risk of further physical and sexual abuse.  Furthermore, the neglect of the children’s needs is very likely to lead to an escalation of their emotional and behavioural difficulties over time.  I believe that ZW and HW urgently require placement with a caregiver who would be able to provide them with the nurturing and responsive care they require in order to avoid ongoing deterioration of their functioning and provide them with an opportunity for a psychological recovery.  I understand that ZW and HW are currently having weekly contact with RW and GW (when his health allows it).  Given that these two children desperately need to stabilise, I would recommend that contact occurs a once a fortnight until the children have had an opportunity to settle in their new placement.

10. On 1 May 2014, a meeting was held between various representatives of the Department (Mr Vajdic, Ms Innes and Mr Ribar) and the plaintiff.  The minutes of the meeting describe its purpose as being “to discuss long term care needs for both ZW and HW, and Families SA recommendations not to have the boys returned to RW and GW’s care”.  The minutes set out a number of concerns expressed by the Department as to the care provided by RW and GW.  The minutes also set out a number of responses made by RW.  She was very critical of both Mr Vajdic and Ms Innes, accusing them of being biased against her in their assessments and approach.  She said that she felt inadequately supported by the Department.  She considered that Families SA did not understand the complex needs of the children.

11. On 2 May 2014, Mr Balkwill and Ms Innes provided a briefing memorandum to Ms Hurley in relation to the decision to remove the children.  Mr Balkwill explained that this briefing was required by the Department protocols in relation to the termination of placements.  He said that it would ordinarily have been produced following the 5 March 2014 meeting, but that its production was delayed by the emergency removal on 14 March 2014. 

12. The purpose of the memorandum was described as being to formally advise of the case direction to terminate the kinship care placement.  After again setting out the background, the memorandum noted that four safety concerns had been identified from the outset: 

    1.   There is confirmed childhood sexual and physical abuse recorded for MW.  Families SA recorded history details GW having sexually abused MW in 1997 and then physically abusing her in an effort to have her withdraw her statement.

    2.   Both RW and GW have a significant criminal history which includes prolonged periods of incarceration for drug related offences, burglary and armed robbery. 

    3.   Further early concerns identified for the placement were with regards to poor supervision, routines, consistency and boundaries.

    4.   Of concern has been JW’s ongoing aggression and violence towards HW and ZW which has resulted in injury.  RW and GW denied this occurs despite disclosure from HW.

13. Reference was then made to the safety plan, and non-adherence to it.  The memorandum summarised Mr Vajdic’s 2013 assessment.  It mentioned the six weekly meetings in the second half of 2013, and the 5 March 2014 case conference at which it was “concluded by consensus that RW and GW were unwilling or unable to address the concerns, or engage community support, and that the placement should be terminated.”

14. The memorandum then described the 14 March 2014 emergency intervention.  It also mentioned subsequent police investigations with the children and JW, noting “that despite there being significant concerns within the placement there are no grounds for criminal proceedings and the investigation is inconclusive”.

15. The memorandum provided a summary of the children’s transitional care arrangements since their removal, as well as some potential options for their future care.  It recommended that the children’s kinship care placement with their maternal grandparents be terminated.  The briefing was noted by the assistant director, Mr Portolesi. 

16. By letter dated 30 May 2014, the solicitors for the plaintiff wrote to the Minister seeking an investigation as to the circumstances surrounding the removal of the children from the plaintiff.  The letter made a number of criticisms of the approach of the Department (and in particular Ms Innes) and of the care for the children since their removal.  The letter sought to have the children returned to the plaintiff, noting that if this did not occur, then an application would be made to the Youth Court to set aside the guardianship order, and a Parliamentary inquiry would also be sought. 

17. There were further communications between the Department and persons on the plaintiff’s behalf during the period June to August 2014.

18. The response to the letter from the solicitor’s for the plaintiff came from the Crown Solicitor’s office, by letter dated 10 September 2014.  The letter said that the Minister was satisfied there were good reasons for the removal of the children from their grandparents’ care and that proper processes were followed.  It recorded that the Minister and Families SA considered that the decision to terminate the children’s placement with their grandparents was a transparent, well documented process of approximately 12 months.  The letter went on to make reference to the May 2013 psychological assessment and the meetings that occurred in the second half of 2013.  It was explained that these culminated in the determination in February 2014 that the placement would be terminated, albeit that the removal of the children on 14 March 2014 occurred on safety grounds when the sexual abuse allegations were to be investigated.  The letter then noted that the children had settled into their current care arrangements, and that there were no plans to return the children to their grandparents’ care.  The letter also addressed some of the more specific concerns that had been raised on the plaintiff’s behalf.

19. After further inquiries and complaints by and on behalf of the plaintiff, Mr Balkwill wrote to the plaintiff and GW by letter dated 6 February 2015 and email dated 9 February 2015.  The letter summarised the explanations for the decision to remove the children from their care.  It did so in more detail than the Crown Solicitor’s September 2014 letter, but in terms that were consistent with that letter and the internal documentation which I have summarised and quoted from above. 

20. In June 2015 the plaintiff made an application in the Youth Court in which she sought orders that she be joined as a party to the 2009 proceedings (in which the Court had made a care and protection order under s 38 of the Act appointing the Minister as guardian of the children until they reach 18 years of age) and that the Court then make an order under s 40 of the Act revoking or varying the orders appointing the Minister as guardian.

21. On 9 June 2015, Senior Judge McEwen declined the application on the basis that there were no existing proceedings to which the plaintiff could be joined, and that she did not have standing to bring an application under s 40.

    Placement of the children since removal

22. In his affidavit, Mr Balkwill explained that the children have now been residing away from the plaintiff for over two years.  After an initial placement in residential care with Families SA caregivers, the children are presently residing separately in long term family based foster care.  HW was placed with a caregiver who previously provided respite care and had been placed there since 12 January 2015.  ZW has been placed with his foster family since 5 September 2015. 

23. Mr Balkwill explained that the caregivers arranged between themselves for the boys to see each other on a fortnightly basis, in addition to when they have contact with other members of their birth family.

24. He said that the children are both thriving emotionally and physically in their current placements.  The children appear to have strong connections with their caregiving families and are engaged in extracurricular activities.  Both children are still behind academically, however there has been a marked improvement in their behaviour at school and their willingness to engage in learning.

    Annual reviews

1. Under s 52 of the Act, there is an obligation to carry out an annual review of the circumstances of any child under the guardianship of the Minister to the age of 18. 

2. The circumstances of ZW and HW were reviewed in June 2014 and June 2015.  Reports of those reviews, while not very detailed, provide some historical information, as well as some information about the progress of the children in their placements in 2014 and 2015. 

3. As to historical information, the 2014 reports for both ZW and HW included statements to the effect that they had been physically and sexually abused by their older sibling prior to their removal from the plaintiff’s care.  They also included references to the concerns of Families SA that the plaintiff demonstrated an ongoing inability to meet the children’s emotional, physical and educational needs; to the unsuccessful attempts to salvage the placement through six weekly review meetings and other supports; and to the plaintiff’s failure to “follow through” and her denial of the issues. 

4. As to their subsequent placements in 2014 and 2015 there were some general descriptions of the modest progress, but significant ongoing difficulties, experienced by the children. 

   Relocation of ZW

5. In around April 2016 the Department was advised that ZW’s foster family intended to move to New South Wales.  The reason for the move was an employment opportunity for the male carer.  It was anticipated that the move would occur in July 2016, and that it would be for an indefinite duration.  ZW’s carers indicated a commitment to caring for ZW and a desire to take him with them. 

6. The Department supported a continuation of ZW’s placement as he had established an attachment to them, and had apparently expressed a desire to his social worker, Ms Innes, to remain with his carers and move interstate with them.  When the plaintiff and MW were informed of the proposal on 19 April 2016, the plaintiff was not supportive of the move.

7. By letter dated 3 June 2016 to plaintiff’s solicitors, the plaintiff was informed that the Department, through the Executive Director of Families SA, had approved the proposal.

8. Mr Ribar explained that when ZW did move the Minister would remain his guardian for the time being.  However, the Department would request the Department of Family and Community Services in New South Wales to support the family and to perform tasks on behalf of the Department, such as undertaking home visits, providing referral services, and providing support for the carers as needed.  The Department would remain available to the carers by phone.  The Department would also consider sending a social worker to visit the carers in New South Wales once the family is settled.  The Department’s plan would be, subject to his wishes, to fly ZW back to South Australia during school holidays to see his brother HW and his family, including the plaintiff.  The Department would also consider, once ZW is settled, flying HW to New South Wales to visit ZW if ZW’s carers agreed to that.

9. Mr Ribar added that if, after a period of time, the carers’ move to New South Wales, and ZW’s placement with them, appear to be permanent, then the Department would give consideration to transferring the guardianship order in relation to ZW to the New South Wales Department pursuant to Part 8 of the Act.  The effect of such a transfer would be that the South Australian Minister and Department would no longer have responsibility for ZW.  However, Mr Ribar indicated that the process for transferring a guardianship order was a lengthy one and it was not expected that the Department would progress it for some time. 

   Legislative scheme

10. Before considering the issues raised by the plaintiff’s application, it is useful to summarise the legislative framework against which they must be considered.

11. The objects, and fundamental principles governing the operation, of the Act are set out in ss 3 and 4 of Part 1, which at the time of removal (14 March 2014) provided:

    3—Objects of Act

    The objects of this Act are—

    (a)    to ensure that all children are safe from harm; and

    (b)to ensure as far as practicable that all children are cared for in a way that allows them to reach their full potential; and

    (c)to promote caring attitudes and responses towards children among all sections of the community so that the need for appropriate nurture, care and protection (including protection of the child's cultural identity) is understood, risks to a child's wellbeing are quickly identified, and any necessary support, protection or care is promptly provided; and

    (d)to recognise the family as the primary means of providing for the nurture, care and protection of children and to accord a high priority to supporting and assisting the family to carry out its responsibilities to children.

    4—Fundamental principles

    (1)     Every child has a right to be safe from harm.

    (2)     Every child has a right to care in a safe and stable family environment or, if such a family environment cannot for some reason be provided, in some alternative form of care in which the child has every opportunity that can be reasonably provided to develop to his or her full potential.

    (3)     In the exercise of powers under this Act, the above principles and the child's wellbeing and best interests are to be the paramount considerations.

    (4)     In determining a child's best interests, consideration must be given to the following:

    (a)the desirability of keeping the child within the child's own family and the undesirability of withdrawing the child unnecessarily from a neighbourhood or environment with which the child has an established sense of connection;

    (b)the need to preserve and strengthen relationships between the child, the child's parents and grandparents and other members of the child's family (whether or not the child is to reside with those parents, grandparents or other family members);

    (c)the need to encourage, preserve and enhance the child's sense of racial, ethnic, religious, spiritual and cultural identity and to respect traditions and values of the community into which the child was born;

    (d)if the child is able to form and express his or her own views as to his or her best interests—those views;

    (e)the undesirability of interrupting the child's education or employment unnecessarily.

    (5)     In relation to an Aboriginal or Torres Strait Islander child, the Aboriginal and Torres Strait Islander Child Placement Principle is to be observed.

    (6)     A child who is placed or about to be placed in alternative care—

    (a)    must be provided with—

    (i)     a nurturing, safe and stable living environment; and

    (ii)care that is, as far as practicable, appropriate to the child's needs and culturally appropriate; and

    (b)must be allowed to maintain relationships with the child's family (including the child's grandparents) and community, to the extent that such relationships can be maintained without serious risk of harm; and

    (c)must be consulted about, and (if the child is reasonably able to do so) take part in making, decisions affecting the child's life, particularly decisions about the child's ongoing care, where the child is to live, contact with the child's family and the child's health and schooling; and

    (d)must be given information that is appropriate, having regard to the child's age and ability to understand, about plans and decisions concerning the child's future; and

    (e)    is entitled to have his or her privacy respected; and

    (f)if the child is in alternative care and under the guardianship, or in the custody, of the Minister—is entitled to regular review of the child's circumstances and the arrangements for the child's care.

    (7)     All proceedings under this Act must be dealt with expeditiously, with due regard to the degree of urgency of each particular case.

12. Section 5 of the Act contains a number of additional provisions relevant to the exercise of powers under the Act in relation to Aboriginal or Torres Strait Islander children.

13. Part 4 of the Act deals with the notification and investigation of abuse or neglect in relation to a child. In particular, s 11 provides various people with an obligation to notify the Department of any suspicion they form (on reasonable grounds and in the course of their work) that a child has been or is being abused or neglected. In addition to this, s 16(1) of the Act permits a police officer or employee of the Department to remove a child from any premises or place, if they believe on reasonable grounds that a child is in a situation of danger and that it is necessary to remove them in order to protect them from harm. Under s 16(3) the child must, if possible, be returned to their home, unless the child is under the guardianship of the Minister or it would not be in the best interests of the child to do so.

14. Part 5, Division 2 of the Act, deals with care and protection orders. Section 37 provides the Minister with power to apply to the Youth Court for an order in circumstances where the Minister is of the opinion that a child is at risk and considers that an order should be made to secure the child’s care and protection.

15. Upon such an application being made, s 38 provides the Court with power to make a range of different orders, including orders placing the child under the guardianship of the Minister, either for a period not exceeding 12 months (s 38(1)(c)) or until the child attains 18 years of age (s 38(1)(d)). Under s 38(1)(f) the Court may also make a range of consequential or ancillary orders.

16. Section 38(2) provides that before the Court makes an order giving custody or guardianship of a child to a person who is not their parent, the Court must be satisfied that there is no parent able, willing and available to provide adequate care and protection for the child, and that the order is the best available solution having regard to the child’s need for care and protection and the child’s age, mental needs and emotional attachments.

17. In terms of the procedure governing applications for a care and protection order (such as an order for guardianship), or for the variation, extension or revocation of such order, s 46(1) provides that the parties to the Youth Court proceedings will be the applicant, the child the subject of the application and each guardian of the child.

18. In s 6, the “guardian” of a child is defined to mean a parent of the child, a person (other than the Minister) who is legal guardian of the child or has the legal custody of the child or any other person who stands in loco parentis to the child and has done so for a significant length of time.

19. Section 47 of the Act permits the Court, if it considers it should make an order binding on a person who is not party to the proceedings, to join that person as a party and allow them a reasonable opportunity to make representations as to why an order should not be made. In addition to this s 46(2) provides that the application must be served on the child the subject of the application (if they are 10 years or above) and each other party to the application.

20. Section 47A of the Act provides:

    47A—Right of other interested persons to be heard

    In any proceedings under this Act, the Court may, on the application of—

    (a)     a member of the child's family; or

    (b)     a person who has at any time had the care of the child; or

    (c)     a person who has counselled, advised or aided the child,

    hear submissions the applicant wishes to make in respect of the child, despite the fact that the applicant is not a party to the proceedings.

21. Section 40 provides:

    40—Variation or revocation of orders

    An order made by the Court under this Division—

    (a)may be varied or revoked at any time on application by a party to the proceedings; and

    (b)lapses when the child attains 18 years of age.

22. Section 43 of the Act addresses the impact of a guardianship order in favour of the Minister. It provides:

    43—Effect of guardianship order

    If the Court places a child under the guardianship of the Minister or any other person or persons under this Division, the Minister or the other person or persons is, or are, the lawful guardian, or guardians, of the child to the exclusion of the rights of any other person.

23. Part 7, Division 1 of the Act, sets out the Minister’s powers in respect of children under his or her care and protection. In particular, s 51 provides:

    51—Powers of Minister in relation to children under the Minister's care and protection

    (1)     Subject to this Act, the Minister may from time to time make provision for the care of a child who is under the guardianship of the Minister or of whom the Minister has custody pursuant to this Act, in any of the following ways:

    (a)by placing the child, or permitting the child to remain, in the care of a guardian of the child or some other member of the child's family;

    (b)by placing the child in the care of an approved foster parent or any other suitable person;

    (c)by placing the child in a home (not being a training centre) established or licensed under the Family and Community Services Act 1972 or in any other suitable place, and by giving such directions as to the care of the child in that home or place as the Minister thinks fit;

    (d)    by making arrangements for the education of the child;

    (e)by making arrangements (including admission to hospital) for the medical or dental examination or treatment of the child or for such other professional examination or treatment as may be necessary or desirable;

    (f)by making such other provision for the care of the child as the circumstances of the case may require.

    (2)     In making provision for the care of a child pursuant to subsection (1), the Minister must, if appropriate, have regard to the desirability of securing settled and permanent living arrangements for the child.

    (3)     The Minister must keep the guardians of the child informed about where the child is placed and how the child is being cared for, unless the Minister is of the opinion that it would not be in the best interests of the child to do so.

    (4)     An authorised police officer may for the purposes of enforcing any order of the Youth Court, without warrant, remove from any place a child who is under the guardianship of the Minister or of whom the Minister has custody, using such force (including breaking into premises) as is reasonably necessary for that purpose.

24. I note that several amendments were recently made to the Children’s Protection Act by the Children’s Protection (Implementation of Coroner’s Recommendations) Amendment Act 2016 (SA), including to ss 3 and 4 extracted above. However, as these amendments have only come into effect from 21 April 2016 I do not need to consider them.

25. Applying the above legislative framework to the present case, the 12 June 2009 order placing the children under the guardianship of the Minister until the age of 18 was made under s 38(1)(d) of the Act.

26. Upon that order being made, the Minister became the children’s guardian to the exclusion of the rights of any other person under s 43 of the Act.

27. The Minister also became empowered under s 51 of the Act to “from time to time make provision for the care” of the children by placing them in the care of a guardian, family member, foster parent or other suitable person or home, and by making educational, health and other arrangements for their care. In exercising those powers, s 51(2) required that the Minister, if appropriate, have regard to the desirability of securing settled and permanent living arrangements for the children. Further s 4(3) required that the paramount considerations in the exercise of powers under s 51 of the Act be the children’s wellbeing and best interests, and the principles in ss 4(1) and (2) (namely, a child’s right to be safe from harm, and to care in a safe and stable family environment or some alternative form of care that provides them with every reasonable opportunity to develop to their full potential). The determination of the children’s best interests required consideration of the matters is ss 4(4)(a) – (e). Further, s 4(6) sets out the matters that were required to be taken into account when considering alternative care arrangements.

28. The decisions made in relation to the care of the children since they were placed under the guardianship of the Minister involved the exercise of the Minister’s powers under s 51. The initial decision to leave the children in the plaintiff’s care following the guardianship order in June 2009 was an exercise of the Minister’s powers under s 51(1)(a). The 2014 decision to remove the children from her care, and to terminate that placement in favour of alternative care arrangement involved an exercise or exercises of the Minister’s powers under s 51(1)(b).

    The plaintiff’s application for judicial review

29. As mentioned, the plaintiff seeks judicial review of the decisions of the Minister, through the Department, to remove the children from her care, and thereafter not to return them to her care.  There are thus two limbs to the plaintiff’s application.

    Decision to remove the children from the plaintiff’s care

30. As to the first limb of the plaintiff’s application, the removal occurred on the evening 14 March 2014.  It was preceded by the case conference attended by various representatives of the Department on 5 March 2014.  The defendants contend that the consensus reached at this meeting to the effect that the placement should be terminated was a decision to this effect.  The plaintiff contends that this meeting was merely a step in the process that might have led to the placement being terminated.  This latter characterisation of the meeting accords with the reference in Mr Balkwill’s 26 March 2014 memorandum to the meeting involving a consensus or determination to “commence a briefing process to seek approval to end the placement.”

31. In any event, regardless of precisely how one describes the outcome of the meeting on 5 March 2014, the immediate reason for the removal on 14 March 2014 was not the matters considered at the earlier meeting, but rather the information received through the child abuse report line on 14 March 2014.  Thus, in addressing the first limb of the plaintiff’s case, the focus must be on the decision or action of the Minister, through the Department, to remove the children based on the information that day.  That said, because the action was taken against the background of the meeting on 5 March 2014 (and the events that had led to that meeting), the more general history remains relevant.

32. A question arises whether the intervention on 14 March 2014 involved an exercise of the powers granted to the Department under s 16 of the Act. There is no express reference in the evidence to the Department regarding itself as acting under this section. The defendants contend that in circumstances such as the present, where the children were already under the guardianship of the Minister, there was no need for the Department to rely upon the powers it had under s 16. They contend that the powers under s 51(1)(b) were sufficient. That section provided the Minister with power to remove the children from the plaintiff so as to place them with an alternative carer or carers.

33. In my view it is appropriate to analyse the first limb of the plaintiff’s case in terms of a challenge to an exercise of the Minister’s powers under s 51(1)(b). While the Department might have invoked its s 16 powers, I do not consider it necessary to consider this scenario. In any event, in the case of a child already under the guardianship of the Minister, similar if not identical considerations would govern a decision to make an urgent removal of a child from their existing carer, regardless of whether the decision was one made under s 16 or s 51 of the Act.

    Decision not to return the children to the plaintiff’s care

34. As to second limb of the plaintiff’s application, namely her challenge to the Department’s subsequent failure to return the children to the plaintiff’s care, it is difficult to pinpoint the precise decision that is challenged. 

1. It follows, in my view, that the decisional freedom conferred on the Minister by the Act is of great breadth.  There will often be a range of ways in which the Minister’s powers might reasonably be exercised.  Put another way, there will often be circumstances in which reasonable minds may differ as to what decision or exercise of power is in the best interests of the child.

2. Further, in my view, the nature of the powers conferred upon the Minister under s 51(1) is such as to permit them to be exercised on the basis of an assessment of risk to a child. If there is information that suggests a risk to the safety or wellbeing of a child, even if that information cannot be substantiated or its accuracy tested, the Minister may not be precluded from taking action to protect the child from that risk. Indeed, like a parent, the Minister will often be permitted to take an approach that is risk averse and protective of the child. Depending upon the circumstances, it may be appropriate for the Minister to act in a relatively peremptory manner, and on the basis of limited information. The Minister is not confined to acting upon confirmed facts, or after extensive investigation.

3. Against this general background, I turn now to consider the decisions impugned in these proceedings.

   Decision to remove the children from the plaintiff’s care

4. In his attempt to establish the legal unreasonableness of the 14 March 2014 decision to remove the children from the plaintiff’s care, the plaintiff’s counsel focused upon the reasons for this decision set out in the 26 March 2014 memorandum prepared by Mr Balkwill and summarised earlier in these reasons.

5. The relevance of reasons in a challenge to the legal unreasonableness of an administrative decision was explained by the Court in Minister for Immigration and Border Protection v Singh[31] in the following terms:[32]

   In circumstances where no reasons for the exercise of power, or for a decision, are produced, all a supervising court can do is focus on the outcome of the exercise of power in the factual context presented, and assess, for itself, its justification or intelligibility bearing in mind that it is for the repository of the power, and not for the Court, to exercise the power but to do so according to law.  This was the position in, for example, Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353: see at 359-360. Where there are reasons, and especially where a discretion is being reviewed, the court is able to follow the reasoning process of the decision-maker through and identify the divergence, or the factors, in the reasons said to make the decision legally unreasonable.

   [31]   Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437.

   [32]   Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [45].

6. However, even where reasons exist, the authorities make it plain that they should not be construed finely, or with an eye keenly attuned to the perception of error.[33]

   [33]   Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259 at 272 (per Brennan CJ, Toohey, McHugh and Gummow JJ) at 291 (per Kirby J), citing with approval Collector of Customs v Pozzolanic (1993) 34 FCR 280 at 286-287; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [153] (per Kirby J).

7. The defendants contend, and I accept, that this principle applies with even greater force in circumstances where the Court is invited to review a selection of documents from the Departmental file to assess the lawfulness of executive action, rather than reviewing a single document that purports to be a formal and complete record of reasons in assessing the lawfulness of an administrative decision.  Individual documents should be read and understood in a practical and common sense manner, having regard to the context in which they were prepared.

8. While it is convenient to focus upon the articulation of the reasons for the 14 March 2014 intervention set out in the 26 March 2014 memorandum, it is thus important to read and understand them in the broader context of the Department’s file and decision-making process.  This context includes not only the historical concerns that I have summarised, but also the other subsequent documentation (including, for example, the May 2014 Ministerial briefing) elaborating upon the reasons for intervention and removal.

9. I earlier summarised the content of the 26 March 2014 memorandum.  In short, it explained that the immediate reason for the intervention on 14 March 2014 was the information received that day suggesting inappropriate sexual activity between the children, and between JW and the children.  However, it also explained that the reasons why this information gave rise to “serious concerns” included the “context of a high number of risk factors in [the] placement”, which led to a view that “it would not be possible to add safety to the home.” It was for these reasons that it was considered appropriate to remove the children whilst the matter was investigated.

10. The 26 March 2014 memorandum expanded upon the context or background of risk factors or safety concerns against which the 14 March 2014 information was assessed.  They included the allegations of sexual and physical abuse by GW against the children’s mother MW; the criminal histories of the plaintiff and GW; JW’s ongoing aggression and violence towards the children; the children being left in the care of JW or GW; the children being permitted to have unsupervised contact with their birth parents; the concerns as to the poor supervision, routines, consistency and boundaries in the placement; the plaintiff’s refusal to adhere to the safety plan; the plaintiff’s refusal to accept support from the Department and defensiveness in response to the concerns and suggestions raised by the Department; the psychological assessment in Mr Vajdic’s report of May 2013; and the lack of progress made through the intervention and six weekly review meetings in the last half of 2013, culminating in the early March 2014 decision to commence the process to end the placement. 

11. The plaintiff challenges reliance upon the 14 March 2014 information, contending that the information was most likely false and “childish nonsense”.  Her counsel contends that it was unreasonable to rely upon this information to justify an emergency intervention.

12. The defendants, on the other hand, contend that the decision to act expeditiously on 14 March 2014 to remove the children from an environment of potential risk was not unreasonable in light of the combination of the information received on 14 March 2014, the earlier information in relation to sexualised behaviour by the children, the historical information about alleged sexual abuse of MW by GW, and the more general ongoing concerns with respect to the children’s placement with the plaintiff.

13. The defendants add that the alternative response, implicitly mandated by the plaintiff’s submissions, would require that the Minister delay taking action until the allegations could be investigated and substantiated, leaving the children in an environment of potential risk and exposure to harm.  The defendants contend that it was plainly a reasonable exercise of the power for the Minister to adopt a cautious approach in removing the children from an environment of potential risk, before being able to fully examine the facts.

14. In my view, the 26 March 2014 memorandum reveals an evident and intelligible justification for the decision to remove the children on 14 March 2014.  The information received on that day involved allegations, sourced to HW, of significant and repeated inappropriate sexual activity between the children, and between JW and the children.  There was no reason, in the evidence before me, to be dismissive of the concerns raised by the notifier.

15. The plaintiff’s counsel quite rightly points out that it was possible that the allegations were false; that it was possible that they were simply a product of HW’s imagination, perhaps as a result of seeing the pornography that he suggested he had been shown by JW.  However, as I have explained earlier, the Minister (through the Department) was not confined to acting on the basis of proven facts, or after investigation.  To the contrary, affording paramountcy to the safety, wellbeing and best interests of a child, will often involve (or at least reasonably permit) acting swiftly, and on the basis of assessments of risk relying upon incomplete information and suspicions or beliefs rather than confirmed facts. 

16. A report of the nature received on 14 March 2014, in the absence of any relevant background or context, might ordinarily warrant some form of investigation before removal of the children concerned.  However, in this case there was a significant background and context.  That background and context included not only earlier allegations of sexual and physical abuse within the children’s family and placement, and an earlier 2013 report from the school of aggressive and sexualised behaviour on the part of HW, but also concerns on the part of the Department as to the plaintiff’s ability to adequately supervise and protect the children from the perceived risks to their safety and wellbeing.

17. Again, I do not think it matters that the historical concerns of physical and sexual abuse were based upon allegations rather than confirmed facts.  The issue was one involving an assessment of risk to the children’s safety and wellbeing.  In my view, the 14 March 2014 allegations, against the background of earlier allegations of physical and sexual abuse within the children’s family and placement, combined with the Department’s concerns as to the plaintiff’s ability to adequately protect the children from the perceived risk, provided an evident and intelligible justification or basis for the emergency intervention on 14 March 2014.  It follows that I reject the contention that the decision to remove the children on 14 March 2014 was legally unreasonable.

18. The plaintiff’s challenge to the 14 March 2014 decision included a challenge to some of the individual aspects of the background and context as set out in the 26 March 2014 memorandum.  Given the secondary relevance of those matters to the 14 March 2014 decision, I do not consider it necessary to address the detail of those submissions in the present context.  However, for the reasons I have explained below in the context of the subsequent decision(s) not to return the children to the plaintiff’s care, the plaintiff’s challenge to the detail of the background and context set out in the Department’s files does not establish legal unreasonableness in the Minister’s exercise of powers. 

    Decision not to return the children to the plaintiff’s care

19. As mentioned, in the period following the removal of the children from the plaintiff on 14 March 2014, the children were interviewed by the police and by Child Protection Services.  While there is no detail of the investigation in the evidence before me, the Department’s file records that while it continued to hold concerns about the allegations, the investigation was inconclusive.  The police ultimately determined that there were no grounds to institute criminal proceedings. 

20. Despite the inconclusive outcome of the investigation into the 14 March 2014 information, the Minister decided to nevertheless terminate the children’s placement and thus not return them to the plaintiff.

21. In considering the plaintiff’s challenge to the decision or decisions not to return the children to the plaintiff’s care, it is difficult to be precise about both the timing of the decision and the reasons for it. 

22. As to the timing of the decision, for the reasons I have explained, it is convenient to consider the issue by reference to the early May 2014 decision to terminate the children’s placement with the plaintiff.

23. As to the reasons for that decision, they are not neatly captured in any particular individual document.  Certainly there is no document purporting to be a formal and complete record of reasons for the decision taken.

24. The May 2014 Ministerial briefing is the most complete contemporaneous record of the decision-making process.  However, even that document needs to be read in conjunction with the documents and information upon which it was based, including the 26 March 2014 memorandum and April 2014 email from Mr Vajdic containing his updated psychological assessment of the children.  Further, as the decision not to return the children to the plaintiff was the culmination of the long process of involvement by the Department in the children’s placement with the plaintiff (particularly in the last half of 2013), leading to the 5 March 2014 case conference, it also needs to be read in the context of that broader background.

25. In having regard to the ‘reasons’ for the decision not to return the children to the plaintiff that emerge from the May 2014 Ministerial briefing and the more general background to that briefing, is important to bear in mind the caution against reading reasons (a fortiori the Department’s files more generally) with an eye too keenly attuned to the perception of error.  It is also important to bear in mind that the Court’s task is to determine the legal reasonableness or otherwise of the ultimate decision or decisions not to return the children.  While factual gaps, anomalies or errors in individual documents may assist in determining the process of reasoning and hence the legal reasonableness or otherwise of the relevant decision, it is neither necessary nor appropriate for the Court to scrutinise and form a view as to the accuracy or appropriate weight of every matter relied upon.  Rather, in a case such as the present, where there is no single formal set of reasons, the task involves a focus upon the ultimate decision or outcome.  It involves ascertaining whether there was an evident and intelligible justification for that decision.  It does not involve any consideration of whether or not the Court agrees or disagrees with the ultimate decision, let alone the individual factors relied upon in support of that decision.

26. On my reading of the relevant documentation, the May 2014 decision to terminate the placement and not return the children to the plaintiff was in substance an implementation of the earlier 5 March 2014 decision to commence a process of removing the children from the plaintiff.  While that process was put in train on 5 March 2014, it was interrupted by the information and events of 14 March 2014.  However, the investigation of those matters having proven inconclusive, the ultimate decision not to return the children was for practical purposes based upon the same considerations that informed the consensus reached at the 5 March 2014 case conference. 

27. At a very broad level, those considerations or reasons were a series of perceived risks to the children, combined with an inability or unwillingness on the part of the plaintiff to address those risks and the other more general concerns of the Department. 

28. At a more detailed level, the matters relied upon included:

    1.   The criminal histories of the plaintiff and GW.

    2.   The allegations of sexual and physical abuse of MW (and JW) by GW.

    3.   The allegations of sexual and physical abuse of the children by JW.

    4.   The reports of sexualised behaviour by HW at school.

    5.   The plaintiff’s refusal to renew or adhere to the safety plan first put in place in 2011.

    6.   The plaintiff’s more general refusal to accept the existence of any risk to the children as a result of the above allegations.

    7.   The plaintiff’s conduct in allowing the children to be supervised by JW and GW, and in allowing them to have unsupervised contact with their birth parents.

    8.   The plaintiff’s inability to attend to the emotional needs of the children.

    9.   The plaintiff’s inability to provide a stable routine for the children, and the resulting chaotic nature of their home life.

    10. The children’s unsettled and aggressive behaviour, and learning difficulties.

    11. The plaintiff’s defensiveness, and inability or unwillingness (particularly throughout the last half of 2013) to accept the support offered by the Department or otherwise address the concerns of the Department that were raised with the plaintiff.

    12. The psychological assessments of Mr Vajdic in his May 2013 report and April 2014 email.

29. It is significant that in deciding to act on the basis of the above matters, the Department only did so after significant, but ultimately unsuccessful, efforts throughout the second half of 2013 to address its various concerns, and hence preserve the children’s placement with the plaintiff.  It is also significant that the decision was one informed by the expert views of not only social workers from the Department with knowledge of the relevant people, but also the detailed psychological assessments of Mr Vajdic.

30. While reasonable minds will undoubtedly differ as to the weight that should be attached to the various matters listed above, and even as to the ultimate decision whether or not to terminate the placement, that is not the issue.  It is sufficient to avoid a conclusion of legal unreasonableness that I am satisfied that the combination of the above matters, in the overall context that I have described, provided an evident and intelligible justification for the decision reached. 

31. In contending for a different conclusion, the approach of the plaintiff was to take the Court through the detail of the selection of the Department’s records received into evidence with a view to identifying mistakes, anomalies or unjustifiable conclusions in those documents.  In my view, this approach was misconceived, or at least unfruitful, for several reasons.

32. First, while counsel for the plaintiff acknowledged that the test was ultimately one of the unreasonableness of the impugned decision, the approach taken tended to slip into one which assumed that the task of the Court was to undertake a detailed assessment of the merits of the views and communications of the Department staff.

33. Secondly, as I have explained, it is important to bear firmly in mind that the documents focussed upon by the plaintiff’s counsel were not intended to be formal reasons for the decisions made, and were also only a selection of the documents in the Department’s files.  As such, a practical and common sense approach to the consideration of those documents was called for.  While it is relevant to consider documents from the Department’s file in order to form a view as to whether there was an intelligible basis for the decisions or action taken, it is not appropriate to approach individual documents within the file with too keen an eye for error, let alone on the basis that any such document was intended to be a formal set of reasons against which the decision’s legal reasonableness can be conclusively determined.

34. Thirdly, the plaintiff’s approach tended to overlook the point made earlier in these reasons, namely that the nature of the powers being exercised in this case meant that the Minister was not confined to acting upon confirmed facts.  Depending upon the circumstances, the Minister was entitled to rely upon concerns or risk based upon suspicions and less than complete information.

35. Fourthly, the plaintiff’s approach tended to focus on individual concerns raised in the Department’s files in isolation from one another, rather than considering the cumulative effect of all of the information available to the Department by early 2014.

36. Ultimately the issue is not whether the Department’s files include documents that contain some gaps, anomalies, mistakes or conclusions that are infelicitously expressed or unjustifiable (at least by reference to the selection of material presented to the Court).  Nor is it whether the Minister, through the Department, may have attached too much or too little weight to one or more of the relevant considerations.  The issue is simply whether the plaintiff has established, through a consideration of those files or otherwise, that the decision not to return the children to the plaintiff’s care was legally unreasonable.  In my view, the concerns identified by the Department, and summarised by me above, provided a reasonable basis for concluding that the safety, wellbeing and best interests of the children would best be served by terminating their placement with the plaintiff, and by continuing to pursue alternative care arrangements rather than returning them to her care.  It follows that the plaintiff has fallen short of establishing legal unreasonableness.

1. A matter of particular focus in the plaintiff’s submissions was the various references in the Departmental documentation to “confirmed” sexual and physical abuse of MW by GW in 1997.  Some of these references have been included in my summary of the Departmental documentation earlier in these reasons.  The plaintiff makes the point that in circumstances where the allegations were apparently withdrawn by MW, were not the subject of any detailed or conclusive investigation, and were not seen as being of sufficient concern to prevent the initial placement of the children with the plaintiff, it is difficult to see how it could have been accurate or appropriate to describe the allegations as “confirmed”.

2. The genesis of this word in the Departmental files appears to be Ms Whenan’s reference to MW having maintained and “confirmed” the allegations in her 2009 interview of MW.  Properly understood, this must be a reference to confirmation by Ms Whenan that the allegations were maintained by MW (despite her having previously withdrawn the allegations), rather than confirmation of the truth of the allegations.  There is thus some force in the plaintiff’s criticisms of the subsequent references to “confirmed” sexual abuse of MW by GW as overlooking the distinction between confirmation that allegations are maintained, and confirmation that allegations are true.

3. However, I do not consider that this takes the plaintiff very far.  When the references complained of are read in the context of the Department’s files, it is clear that the references to the sexual abuse of MW are generally treated as allegations giving rise to a risk to the safety of the children, rather than confirmed fact.  This is plain from the passages extracted from Ms Whenan’s report earlier in these reasons, and is at least implicit in the subsequent assessments by the Department that the children were not at sufficient risk to prevent the placement of the children with the plaintiff.  It is also significant that in the Departmental assessment leading to the approval of the plaintiff as a carer in October 2011, the reference to the sexual abuse as “confirmed” was clarified as being a reference to being “confirmed purely on the allegations raised by [MW]”.

4. It is unfortunate that in several places the language used in the Department’s files does blur, if not ignore, the distinction between facts and allegations.  This is true not only in relation to the allegations of abuse by GW, but also the allegations of abuse by JW.  However, this is an illustration of the need not to read the documents in this case with too keen an eye for error.  When the relevant documents are read in context it is clear that the allegations were denied, and also were not the subject of any detailed or conclusive investigation.  Implicit in the approach taken in the Department’s files is a recognition that the mere fact of the allegations, even though unproven, may be a source of risk that needs to be taken into account and assessed in light of all of the other available information.  While reasonable minds may differ as to the weight to be attached to the various allegations in the absence of any substantiation of their truth, I do not consider that there is anything irrational or inappropriate about taking them into account.

5. Similarly, in relation to the criminal history of the plaintiff, while the plaintiff quite validly points out that the very limited and historical relevance of this information suggests that it ought to have been of limited weight, that does not mean that it was entirely irrelevant or should have been excluded from the overall assessment of the risks to, and best interests of, the children.

6. While there are repeated references in the Departmental file to both the historical allegations by MW and to the plaintiff’s criminal history, there is nothing in the documentation that to my mind indicates that these matters were afforded such inappropriate or excessive weight as to be indicative of legal unreasonableness in the ultimate decision not to return the children to the plaintiff.  To the contrary, it is plain from a proper analysis of the overall decision-making process that they were treated as but a part of the overall risk assessment.  While these matters, in combination with the other allegations of sexual and physical abuse within the children’s family and placement were undoubtedly taken into account as a source of risk to the children, the overwhelming consideration ultimately appears to have been the plaintiff’s inability and unwillingness to address the more general concerns of the Department.

7. The plaintiff’s counsel also highlighted a number of the positive statements made in the Departmental memoranda and communications in relation to the care provided by the plaintiff.  However, again, there is no reason to think that these matters were overlooked in the ultimate decision-making process.  Rather, the evidence suggests that over time, and in particular during the last half of 2013, the Department’s concerns in relation to the plaintiff’s care – and her inability or unwillingness to address them – came to overwhelm the positive aspects of the care she had been able to provide.  Properly understood, the plaintiff’s complaint is again one addressed to the merits of the decision, or the weight attached to particular considerations, rather than the legal unreasonableness of the decision impugned.

8. Again, in my view, a proper reading of the relevant documentation in the Department’s files discloses an evident and intelligible justification for the decision in early May 2014 to terminate the children’s placement with the plaintiff and hence not return them to her care.  The plaintiff has not established that the decision not to return the children to the plaintiff’s care was legally unreasonable.

   Other matters

9. In view of the decision I have reached that the plaintiff’s claim must fail both on the basis that it is out of time, and on the basis that legal unreasonableness has not been established, I do not consider it necessary for me to address the alternative arguments advanced by the defendants – namely that I should decline to order any relief on discretionary grounds on account of the lack of utility in the relief sought, and that any relief should be confined to declaratory orders as to the lawfulness (as opposed to invalidity) of the impugned decisions.

10. I note that in the course of his oral submissions, the plaintiff’s counsel announced an apparent intention on the part of the plaintiff to challenge the decision by the Minister, through the Department, to support the move of ZW to New South Wales with his present carers.  In light of my earlier reasoning, it is unlikely that the plaintiff would have standing to challenge this decision in proceedings for judicial review.  However, I do not need to form any final view about this matter because these proceedings do not encompass a challenge to that decision.  While the evidence in these proceedings includes a 3 June 2016 letter from the Department indicating its approval of the proposal that ZW move to New South Wales, there is no challenge in the pleadings to the decision apparently evidenced by this letter.  Nor has there been any application to amend the pleadings to include such a challenge.  As a result, the defendants have not adduced whatever evidence may be relevant to a determination of such a challenge.  Nor have they addressed the validity or otherwise of the decision in their submissions.  I do not consider it appropriate for me to give this issue any further consideration.

    Conclusion

11. For the reasons I have set out, it is my view that the plaintiff’s application for judicial review should be dismissed on the grounds that:

    1.   the proceedings were commenced out of time and it is not appropriate to grant an extension of the time within which to commence the proceedings, or otherwise to exercise the Court’s discretion to grant the relief sought; and

    2.   neither legal unreasonableness, nor any other ground of judicial review, has been established.  

12. Accordingly, I dismiss the plaintiff’s claim.