YG & GG v Minister for Community Services

[2002] NSWCA 247

CITATION:	YG & GG v. Minister for Community Services [2002] NSWCA 247
FILE NUMBER(S):	CA 40088/02
HEARING DATE(S):	17 July 2002
JUDGMENT DATE:	26 July 2002
PARTIES :	YG and GG - appellants Minister for Community Services - respondent
JUDGMENT OF:	Hodgson JA at 1; Foster AJA at 55; Brownie AJA at 56

LOWER COURT JURISDICTION :	Administrative Decisions Tribunal
LOWER COURT FILE NUMBER(S) :	ADT 19050/01
LOWER COURT JUDICIAL OFFICER :	Appeal Panel

COUNSEL:	Ms. B. Rigg for appellants Mr. M. Anderson for respondent
SOLICITORS:	Ms. B. Rigg for appellants Mr. M. Anderson for respondent
CATCHWORDS:	FAMILY LAW - CHILD WELFARE - Wards - Termination of custody by Minister - Risk of abuse - Interests of wards - Natural justice to carers - ADMINISTRATIVE LAW - Appeals from administrative authorities - Error of law - Review of merits - Correct and preferable decision - Whether to be judged at time of original decision or time of review.
LEGISLATION CITED:	Children (Care & Protection) Act 1987, ss. 89, 91, 112 Administrative Decisions Tribunal Act 1997, ss. 8, 9, 38, 47, 55, 63-66, 112-116, 119-120
CASES CITED:	Absolon v. NSW TAFE [1999] NSWCA 311 M v M (1988) 166 CLR 69
DECISION:	Appeal dismissed

CA 40088/02
ADT19050/01

HODGSON JA
FOSTER AJA
BROWNIE AJA

Friday 26 July 2002

YG & GG V. MINISTER FOR COMMUNITY SERVICES

Judgment

1 HODGSON JA: On 23 March 2001, the Department of Community Services (the Department) acting under delegation from the Minister for Community Services (the Minister) removed two wards from the care of the appellants Mr. and Mrs. G. On 7 February 2002, after an intermediate appeal, the Appeal Panel of the Administrative Decisions Tribunal made an order that “the decision to terminate the respondent’s custody of the wards is affirmed”. The appellants appeal to this Court from that decision.

STATUTORY PROVISIONS

2 In order to understand the events and decisions giving rise to this appeal, it is necessary to have regard to certain statutory provisions.

3 The principles to be applied in decisions concerning wards of the State are set out in s.89 of the Children (Care & Protection) Act 1987 (the C&P Act):

89(1) In the administration of this Part, the welfare and interests of wards and protected persons shall be given paramount consideration.
(2) In determining any matter relevant to the welfare or interests of a ward or protected person, regard shall be had to the wishes of the ward or protected person.

4 Relevant functions and powers of the Minister in relation to wards are set out in s.91(1) of the C&P Act, as follows:

91(1) The Minister:
(a) shall provide for the accommodation, care and maintenance of wards and protected persons,
(b) may make payments, at such rates as may be prescribed by the regulations, to persons having the care of wards or protected persons,
(c) may direct the removal of any ward or protected person from one place to another,
(d) may, subject to such conditions as may be prescribed by the regulations and to such additional conditions as the Minister may determine, place any ward or protected person:
(i) in the custody of a person in charge of a non-Government organisation, or
(ii) for the purpose of the ward or protected person being fostered, in the custody of any person approved by the Minister,
being a person who is willing to undertake the custody of the ward or protected person,
(e) may terminate the custody of a ward or protected person who has been placed in the custody of a person referred to in paragraph (d) (i) or (ii), and
(f) may direct that a ward be restored to the custody of a parent of the ward or be placed in the custody of any other person.

5 Under s.112(h) of the C&P Act, “a decision of the Minister to terminate the custody of a ward or protected person under s.91(1)(e)” is reviewable by the Administrative Decisions Tribunal (the Tribunal).

6 Under s.38 of the Administrative Decisions Tribunal Act 1997 (the ADT Act) jurisdiction is given to the Tribunal to review a decision (called “a reviewable decision”: s.8) of a person or body that makes the decision (called “an administrator”: s.9) if an Act provides that application for such review may be made to the Tribunal.

7 Applications to the Tribunal for review may generally be made only after an internal review by the administrator (ss.47, 55(1)(b) of the ADT Act), but this may not be necessary (s.55(2)). The powers of the Tribunal on review are set out in ss.63-66 of the ADT Act as follows:

63(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,
(b) any applicable written or unwritten law.
(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.
(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:
(a) to affirm the reviewable decision, or
(b) to vary the reviewable decision, or
(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or
(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
64(1) In determining an application for a review of a reviewable decision, the Tribunal must give effect to any relevant Government policy in force at the time the reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case.
(2) The Premier or any other Minister may certify, in writing, that a particular policy was Government policy in relation to a particular matter.
(3) The certificate is evidence of the Government policy concerned and the Tribunal is to take judicial notice of the contents of that certificate.
(4) In determining an application for a review of a reviewable decision, the Tribunal may have regard to any other policy applied by the administrator in relation to the matter concerned except to the extent that the policy is contrary to Government policy or to law or the policy produces an unjust decision in the circumstances of the case.
(5) In this section:
"Government policy" means a policy adopted by:
(a) the Cabinet, or
(b) the Premier or any other Minister,
that is to be applied in the exercise of discretionary powers by administrators.

65(1) At any stage of proceedings to determine an application for a review of a reviewable decision, the Tribunal may remit the decision to the administrator who made it for reconsideration of the decision by the administrator.
(2) If a decision is so remitted to an administrator, the administrator may reconsider the decision and may:
(a) affirm the decision, or
(b) vary the decision, or
(c) set aside the decision and make a new decision in substitution for the decision set aside.
(3) If the administrator varies the decision:
(a) the application is taken to be an application for review of the decision as varied, and
(b) the person who made the application may either:
(i) proceed with the application for review of the decision as varied, or
(ii) withdraw the application.
(4) If the administrator sets the decision aside and makes a new decision in substitution for the decision set aside:
(a) the application is taken to be an application for review of the new decision, and
(b) the person who made the application may either:
(i) proceed with the application for review of the new decision, or
(ii) withdraw the application.

66(1) A decision determining an application for a review of a reviewable decision takes effect on the date on which it is given or such later date as may be specified in the decision.
(2) If any such decision varies, or is made in substitution for, an administrator's decision, the decision of the Tribunal is taken:
(a) to be the decision of the administrator (other than for the purposes of a review under this Chapter), and
(b) to have had effect as the decision of the administrator on and from the date of the administrator's actual decision, unless the Tribunal orders otherwise.

8 Under s.112 of the ADT Act, a decision of the Tribunal made in proceedings for review of a reviewable decision is an appealable decision, to which ss.113-116 apply. Those sections are as follows:

113(1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel.
(2) An appeal:
(a) may be made on any question of law, and
(b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision.
(3) An appeal must be made:
(a) within 28 days after the Tribunal furnishes the party with written reasons for the appealable decision under section 89, or
(b) within such further time as the Appeal Panel may allow.
(4) An appeal is to be made in the manner prescribed by the rules of the Tribunal.

114(1) If an appeal under this Part is restricted to questions of law, the Appeal Panel is to determine the appeal and may make such orders as it thinks appropriate in light of its decision.
(2) The orders that may be made by the Appeal Panel on any such appeal include, but are not limited to, any of the following:
(a) an order affirming or setting aside the decision of the Tribunal (as originally constituted),
(b) an order remitting the case to be heard and decided again by the Tribunal (as originally or similarly constituted), either with or without the hearing of further evidence, in accordance with the directions of the Appeal Panel,
(c) an order made in substitution for an order made by the Tribunal.

115(1) If an appeal under this Part extends to a review of the merits of an appealable decision, the Appeal Panel is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,
(b) any applicable written or unwritten law.
(2) The Appeal Panel may exercise all the functions that are conferred or imposed by or under any relevant enactment or this Act on the Tribunal at first instance to make the appealable decision concerned.
(3) In determining any such appeal, the Appeal Panel may decide:
(a) to affirm the decision, or
(b) to vary the decision, or
(c) to set aside the decision and make a decision in substitution for the decision it set aside.

116. Subject to any interlocutory order made by the Appeal Panel, an appeal under this Part does not affect the operation of the decision concerned or prevent the taking of action to implement the decision.

9 Sections 119-120 of the ADT Act provide for appeal to the Supreme Court, as follows:

119(1) A party to proceedings before an Appeal Panel of the Tribunal (whether in proceedings under Part 1 or otherwise) may appeal to the Supreme Court, on a question of law, against any decision of the Appeal Panel in those proceedings.
(2) The Appeal Panel (or any of the members constituting the Appeal Panel) cannot be made a party to an appeal under this section. Rules of court made under the Supreme Court Act 1970 may make provision for the parties to any such appeal (including the designation of a respondent where the only party in the proceedings from which the appeal is brought was the appellant).
(3) An appeal by a person under this section must be made:
(a) within such time and in such manner as is prescribed by rules of court made under the Supreme Court Act 1970 , or
(b) within such further time as the Supreme Court may allow.

120(1) The Supreme Court is to hear and determine the appeal and may make such orders as it thinks appropriate in light of its decision.
(2) The orders that may be made by the Supreme Court on appeal include (but are not limited to):
(a) an order affirming or setting aside the decision of the Appeal Panel, and
(b) an order remitting the case to be heard and decided again by the Appeal Panel (either with or without the hearing of further evidence) in accordance with the directions of the Supreme Court.

HISTORY

10 On 3 August 2000, two brothers E and A (aged 4 and 3) were placed by the Department into the care of the appellants. On 31 August 2000, the appellants were informed by the Department that they had been approved as foster carers for the Department. On 25 October 2000, provisional orders making E and A wards of the State were confirmed by the Children’s Court.

11 On 22 March 2001, Mrs. G’s sister, Ms. T made an allegation of abuse by Mr. G of E to Green Valley Police Station, which notified the Department. On 23 March 2001, Leonie Booth of the Department interviewed E at school. She then consulted with Gregory Skelly, Manager Client Services of Fairfield Community Service Centre. Paragraph 12 of Mr. Skelly’s affidavit of 27 June 2001 provided to the Tribunal asserts as follows:

I spoke to Leonie after her interview of [E] on 23 March 2001 and we reached the conclusion that that [E] and [A] should be removed from the care of [the appellants] on the basis that their safety, welfare and well being were at risk. Accordingly a decision was made that day to remove [E] and [A] from the foster care of [the appellants]. That decision was made pursuant to s.91(1)(e) of the Children (Care and Protection) Act 1987, which provides that the Minister may direct the removal of any ward or protected person from one place to another. That section of that Act and which has not yet been repealed pursuant to the Children & Young Persons (Legislation) Repeal & Amendment Act 1998 or any other Act.

In that paragraph, the (e) in s.91(1)(e) appears to have been altered from (c), and I note that it is in fact paragraph (c) of s.91(1) which makes the provision referred to in paragraph 12 about the Minister direction removal of a ward from one place to another.

12 Mrs. Booth then went to the school with two uniformed police officers, and saw the appellants who had come to collect E from the school. Mrs. Booth advised the appellants that serious allegations had been made against them, and advised them of the nature of the allegations, and also advised them that the Department was removing the children from their care. E and A were then taken to another family.

13 Mrs. Booth advised the appellants that the Department would interview them as soon as possible. In fact, the Department did not provide such an interview until 18 April, and did not provide any written reasons for any decision it took until 24 May 2001.

14 Meanwhile, on 17 May 2001 the appellants lodged an application to the Tribunal for review of a decision, identified as the decision made on 26 March 2001 by the Department and Mr. Skelly, and giving as the reasons for the application “The children were placed in long-term placement with us, and they have been removed. We seek to have them returned to our care”.

15 On 24 May 2001, Mr. Skelly provided a document headed “Reasons for the Removal of [E and A] from the Care of [the appellants]”. This document referred among other things to allegations of humiliating and demeaning punishment and confirmation by E in an interview with Mrs. Booth. Although the document referred to other matters, and to the interview of 18 April, it did not purport to be reasons supporting any decision other than that to remove E and A from the care of the appellants. However, the final paragraph was as follows:

The Department is strongly opposed to the children returning to the care of [the appellants]. Research indicates that children are at their most vulnerable following a disclosure and they need to be reassured that they are going to be safe in the future. The decision to remove the children from the care of [the appellants] was made having the children’s welfare as the paramount consideration.

16 The application for review was heard by the Tribunal on 31 July, 7 August, 28 August, 3 September and 6 September, and the Tribunal’s decision was given on 18 October 2001. In its reasons, the Tribunal described the application as being for a review of the decision of the Minister “to terminate their custody of two wards of the State” made pursuant to s.91(1)(e) of the C&P Act. The Tribunal made the following orders:

[55] The Tribunal reverses the decision made by the Commissioner and orders the children be restored on the grounds recommended by Ms Starkey:
i) Establish the wishes of the children with regard to contact with [the appellants]. These issues should be taken into account when establishing a regime of gradual contact moving from supervised access through to restoration of full time care.
ii) [the appellants] undertake to not use any humiliation punishment or other child management strategies not approved by the Department.
iii) Monitoring and dealings with the Department and [the appellants] must not be through the Fairfleld Office.
iv) [The appellants] must agree to abide by the rulings of the Department in regard to all issues of day to day management of the children including schooling and access to their mother and their siblings.
v) [The appellants] must agree to attend counselling (sic) with person or persons agreed to by themselves and the Department.
vi) [A] attend pre-school and [E] attend a school facility chosen by the Department in consultation with [the appellants].
vii) [E] and [A] continue to have counseling (sic) for an extended period.
viii) The placement be monitored on a frequent basis for an extended period.

17 On 19 October 2001, the Department lodged an appeal against that decision, alleging various errors of law. The appeal was heard on 28 November 2001, and at the close of argument the Appeal Panel upheld the appeal, giving as reasons only that grounds 1 and 2 of the appeal were made out. Those grounds related to the Tribunal’s failure to find whether abuse occurred or whether there was an unacceptable risk of such abuse occurring or being likely; and deficiency of reasons. The Appeal Panel also decided that it would retain the matter and dispose of it on its merits, giving rise to a further hearing on 19 December 2001 and a decision handed down on 7 January 2002. That decision concluded as follows:

[152] It is clear, we consider, that the forms of abuse alleged fell within the category of humiliating or demeaning disciplinary techniques of the kind banned by cl.8 of the Foster Parent Code of Conduct. [Ms.T] made no specific allegations of abuse of [A] in her statement of 22 March 2001. There was a general allegation of abuse of [A] in the past contained in her later affidavit. We accept that if there is reliable evidence of abuse against one child, it follows that any other ward should be removed, especially siblings.

[153] The evidence of [Ms.T], read in conjunction with the record of interview of [E], might not necessarily, justify findings that the allegations against [Mr.G] (and against [Mrs G] by implication in that she did nothing to stop the abuse) proven on the balance of probabilities to a level of comfortable satisfaction (the Briginshaw standard). Nevertheless, we are satisfied that there was evidence of sufficient reliability as to the risk of abuse to justify the Department in taking immediate action.

[154] We have found [Ms.T] generally to be a credible witness. [Mr.G’s] credibility was poor. [The appellants’] attacks on [Ms.T’s] credibility failed, especially in relation to the critical question of whether she was at home on the morning of 21 March 2001.

[155] We have some reservations as to whether her account should be accepted in its entirety. [Ms.T] referred to six events in her report to the police (the 'loser' comment; kneeling in kitchen; kneeling on pebblecrete surround of pool; crying, while in pool and holding on to its side; further 'loser' comment and TV volume being increased; standing in main bedroom on stools with gag in mouth). We have our doubt as to whether all of these events could have occurred in a relatively limited period, which we place as being between about 9.00 am (when she was waking up) and approximately 10.30 am. There may be some element of reconstruction.

[156] We are satisfied that she saw conduct that morning that reasonably, led her to believe that [E] was being disciplined in an excessive manner. The event of the greatest concern was the incident where she saw [E] standing on a chair, legs apart in a splits position, with a gag in his mouth. As noted, we are satisfied that the answers at interview by [E] despite the shortcomings of the questioning technique, were consistent with her account of this incident. ([Ms.T] described the gag, as a handkerchief, [E] as a sock, but nothing turns on this difference in our view.)

[157] Accordingly we are satisfied that the Department acted appropriately in intervening and removing the children.

[158] But the consequential decision to terminate custody may have been more arguable, when account is taken of Dr Lennings' concerns. No practical attempt was made to assess whether the situation was one where a remedial program could be established with [the appellants] with a view to restoring the children to them. Effective consideration of this option requires, in our view, immediate consultation with the carers, the subject of the allegations. That did not occur here. (We recognise that sometimes it may not be possible to make immediate contact with the carer out of concern for the safety of the children or the accuser. This was not a case of that kind.) There may have been some hope of rectifying the situation had there been immediate consultation with [the appellants], a care environment which in other respects had a number of positives for [E] and [A].

18 On 21 March 2002, the appellants lodged a Notice of Appeal to this Court stating the following grounds:

1. The Appeal Panel failed to make a decision regarding the Respondent’s 8th ground of appeal before it, and erred in stating that the status of the report of the guardian ad litem was ‘unclear’

2. The Appeal Panel erroneously restricted the issue of the ‘best interests’ of the boys the subject of the foster placement to a determination of the allegations made of inappropriate disciplinary methods.

3. The standard of proof utilised by the Appeal Panel regarding the allegations of inappropriate disciplinary techniques was erroneous.

5. The Appeal Panel failed to consider the evidence before it regarding the issue of whether, even if the alleged disciplinary techniques had been used, termination of the foster placement was in the best interests of [E] and [A].

6. The manner in which the Appeal Panel treated the problems with the evidence of inappropriate disciplinary techniques was erroneous.

7. Inadequate reasons were provided by the Appeal Panel for upholding the Respondent’s ground of appeal to it on a matter of law, which formed the basis for the grant of leave to ex tend the hearing to a review of the merits.

8. Inadequate reasons were provided by the Appeal Panel in its judgment of 7 January 2002.

19 However, on 19 March 2002, the appeal panel gave written reasons for its decision on grounds 1 and 2 of the appeal before it; and in the appellants’ written submissions, ground 7 in the Notice of Appeal was abandoned, and in lieu thereof submissions were advanced to the effect that the reasons given by the Appeal Panel on 19 March 2002 disclosed error in the Appeal Panel’s decision that grounds 1 and 2 in the appeal to it were made out. At the hearing, the appellants applied for leave to amend ground 7 to the ground advanced in the written submissions, as just mentioned, and that leave was granted.

COMMENTS

20 Before considering the main issues argued on this appeal, I wish to make some comments concerning the history of the matter.

21 In the first place, it seems to me to be improbable in the extreme that the Minister or Mr. Skelly on behalf of the Minister made a decision on 23 March 2001 to terminate the custody of E and A within the meaning of s.91(1)(e). The decision of that date was not so described by Mr. Skelly in his affidavit, referred to above, except to the extent that it was so described through the alteration of (c) to (e), or in Mr. Skelly’s written reasons on 24 May 2001. The affidavit referred to a decision to remove E and A from the care of the appellants pursuant to the Minister’s power to direct the removal of a ward from one place to another; and the latter refers to reasons for removal of E and A from the care of the appellants. In my opinion, while a decision on 23 March to immediately remove E and A from the care of the appellants may have been justified by the risk of abuse, it is very difficult to say that a peremptory decision on that day to permanently terminate custody, without any further investigation, could possibly have been justified in the interests of the wards. This matter was touched on in the last paragraph of the Appeal Panel’s reasons, set out above, but not clearly identified or pursued.

22 Having made a decision to remove E and A from the care of the appellants, it was plainly incumbent on the Minister to proceed as quickly as reasonably possible to a decision for the longer term, possibly including a decision whether or not custody was to be permanently terminated. Instead, there was long delay before even an interview of the appellants was granted, and there is in fact no record of any subsequent reasoned decision as to what to do in the longer term. The reasons on 24 May 2001 do refer to the strong opposition of the Department to the return of the wards to the appellants, but they do not identify any decision to permanently terminate custody. The attitude of the Department to litigation suggests strongly that such a subsequent decision was in fact made, but it was never notified to the appellants as required by s.48 of the ADT Act.

23 This problem led I believe to unclarity in the decisions of both the Tribunal and the Appeal Panel as to exactly what decision was being reviewed, which was reflected inter alia in the last paragraph of the Appeal Panel’s decision. However, I note that a decision to remove the wards under s.91(1)(c) is not a reviewable decision which could be the subject of an application under the ADT Act; and the inference is fairly clear that a s.91(1)(e) decision was made at some unspecified time; so it is reasonable to treat the whole appellate process as relating to that subsequent decision which must have been made. Despite the confusion to which I have referred, it would appear that in broad terms both the Tribunal and the Appeal Panel proceeded on that basis.

24 One other problem that affects the decision of the Appeal Panel, in my opinion, is unclarity as to what is involved in a review of the merits. I note that both s.63 and s.115 of the ADT Act refer to the reviewing body making a decision “what the correct and preferable decision is having regard to the material then before it”, and not what such decision was at the time of making the decision under review. The Appeal Panel identified the task of the Tribunal and its own task in the following four paragraphs:

[9] Correct and preferable decision: In dealing with the review of reviewable decisions, the Tribunal is required to determine whether the decision made by the administrator (in this case, the Department acting on delegation of the. Minister) was the correct and preferable one: the Tribunal Act, s 63. The Tribunal may have regard to all material that was relevant at the time of the decision as well as any further material that is relevant as at the time of the hearing.

…

[22] The Tribunal must decide whether the Department, on the evidence now available, made the correct and preferable decision. The focus of the enquiry is the paramount interests of the children.

…

[54] As the Panel sees the task before it, there are two areas of inquiry. One is the assessment of the reasons given by the Department for its decision. If that assessment gives rise to the conclusion that the Department did not make the correct and preferable decision on 23 March 2001, a second inquiry is necessary. That relates to whether it would be in the best interests of the children to remove them from their present custody and restore them to [the appellants]. There may be a question as to whether the Tribunal has any jurisdiction to enter into the second inquiry.

…

[142] Our provisional view is that the only inquiry that the Tribunal should be engaged in is whether the administrator's grounds for the decision to terminate custody justified such a decision having regard to the paramount interests of the children. Strictly speaking, what occurs to the children after that is outside the proper scope of inquiry. But as much attention was given to this issue at the original hearing we will set out the evidence.

25 There are some indications suggesting that, at least in the case of a review by the Tribunal, the question is what was the correct and preferable decision at the time the decision was made. Section 64(1) refers to any relevant government policy in force at that time, and s.66(2)(b) provides that the Tribunal decision is prima facie taken to have had effect on and from the date of the administrator’s actual decision. However, in my view those indications are not sufficient to overcome the force of the wording of s.63(1), notably the use of the word “is” after the words “correct and preferable decision”, rather than the word “was”; and the unlikelihood that the Act would intend that the Tribunal, after a full review of the merits, should give effect to what it considered to be the correct and preferable decision at the time the decision was made, even though that was no longer the correct and preferable decision at the time of the Tribunal’s decision. In other words, contrary to what the Appeal Panel said, my opinion is that, on a merits review by the Tribunal or by the Appeal Panel under s.115, there is no two-stage process: the issue for determination is what is the correct and preferable decision at the time of the determination, irrespective of whether it was or was not the correct and preferable decision at the time it was originally taken. If necessary then, the Tribunal may make an order under s.66(2)(b) that its decision take effect on and from some date other than the original decision.

ISSUES BELOW

26 Before considering the issues before this Court, it is convenient to outline briefly the way the case was decided by the Tribunal and the Appeal Panel.

27 Before the Tribunal, both Mr. and Mrs. G and the Department were legally represented. In addition, the Tribunal appointed a clinical psychologist Ms. Diane Starkey to act as guardian ad litem for E and A: this was apparently pursuant to s.71(4) of the ADT Act, and pre-supposes an order under s.67(4) of the Act that the children had been made parties. Ms. Starkey provided two reports, which were received by the Tribunal. She was not cross-examined on the reports, and she made submissions to the effect that, subject to safeguards, steps be taken with a view to restoring the children to Mr. and Mrs. G.

28 Evidence was given by Ms.T, and also Mr. Skelly, Ms. Booth, and two other officers of the Department; by Mr. and Mrs. G, Mr.T (the father of Ms.T and Mrs.G), and by a police officer; and by two psychologists, Mr. Lennings called by the appellants, and Mr. Champion called by the Department.

29 Mr. and Mrs. G denied that any abuse had occurred. The reports of Ms. Starkey and Mr. Lennings tended to favour attempts to return the children to Mr. and Mrs. G, with safeguards; while that of Mr. Champion tended against that, although explicitly so only “if it, were to be substantiated that the [G] family used the ‘disciplinary methods’ in the form described, if they engaged in denigrating comments as is suggested, and if they sought to undermine the relationship of the children with their family of origin, as is implied in the documents”. In those circumstances, according to Mr. Champion, he “would struggle to identify any basis upon which it could be suggested that the subject children be returned to their care”. Mr Champion gave evidence as to what should happen in the event that abuse was neither established nor excluded only in response to a question-begging question posed in re-examination, as follows:

ANDERSON: It may be that no particular finding is able to be made one way or the other whether abuse occurred or whether it didn't occur. If there were an unacceptable risk of abuse having occurred, would that be a risk worth taking in terms of placement of the child with a particular care giver.

WITNESS: I would say, probably not, in the end. I think part of the difficulty is that the risk is not only there if there's no establishment what has happened or not happened. But the risk is there also as I was speaking before because we're talking about the potential of removing the children from the current carers, placing them back with people when their relationship has been disrupted with those people and subjecting the children yet more change and I think that's inherently problematic the way I am looking at the situation.

30 In its findings, the Tribunal said the following as to the credibility of Ms.T:

[28] Ms.[T] was not a convincing witness. Her evidence regarding where and when she was living during the long period since her mother's death was often incomplete and inconsistent. Her allegations with regard to [E] having to swim taps of the pool was found to be deliberately misleading as it became clear that the pool was not only very short but also shallow at the “beach end”.

[29] There was a clear conflict between Ms.[T] and Mr.[G]. Evidence from Ms.[T] was that Mr and Mrs [G] did not want any input from her regarding the children and that although she was living under the same roof her interaction with the boys was minimal.

[30] However Ms.[T’s] oral evidence taken in conjunction with documentary evidence of her phone calls and car problems relating to the activities of the 21 March 2001 were preferred over that of Mr and Mrs [G's].

31 The concluding passages of its reasons, prior to the paragraph in which the orders were made, were as follows:

[45] The best outcome would be for the boys to return to the care of the [Gs] who would provide them with a safe, loving environment.

[46] It is the view of both Mr. Lennings and Ms Starkey that both Mr. and Mrs [G] love the boys and want them returned to their care. Their desire to have those wants met make the [Gs] amenable to any change which the Department requires of them.

[47] In reviewing the decision made by the Department, the Tribunal must treat the needs of the children as paramount. This requires looking at the factors that led to the decision and to any subsequent factors that affect the children since that removal. This includes that six months have passed, the current foster placement, the attachment the children have with both the [Ks] and the [Gs], the risk that the [K’s] placement might break down and the effect that would have on the boys.

[48] There is evidence in the seven to eight months the boys were with the [Gs] the behaviour of [E] improved. [E’s] performance at school was within the normal range. The [Gs] had the children’s best interests at heart.

[49] The placement with the [Gs] was done hastily albeit for practical reasons. The boys at their tender age had been through numerous failed placements with allegations of abuse in three of those placements.

[50] The Department accepted an increased duty of care to the boys when they placed them with the [Gs]. This required the Department to ensure that problems that arose were dealt with and to see that the [Gs] had received ongoing education for caring for the boys. The Department, as a result, had an increased obligation to ensure the relationship between the [Gs] and the Department be maintained at a satisfactory workable level.

[51] When the allegations of abuse were made it was not in the best interest of the boys to remove them from the [Gs] care. Other ways of ensuring the [Gs] learned of the inappropriateness of such disciplinary techniques should have been found.

[52] It is agreed between the parties and each expert that further change for these boys would seriously compromise their development.

[53] With regard the reports of Ken Champion tendered by the Crown, the Tribunal notes the author acknowledges their limitations because he did not interview the children or the [Gs]. However he gives a detailed report addressing the inappropriateness of disciplinary techniques alleged to have been used. The Tribunal suggests that the [Gs] take notice of the seriousness of such techniques and should recognize the need to change.

[54] A completely new plan to reunite the boys with the [Gs] should be undertaken. This plan should be monitored and evaluated. This should not be done by the Fairfield office of the Department. All monitoring and support should be overseen by an independent person. Ms Starkey would be ideal given her knowledge of the situation and experience in the field.

32 The Department appealed to the Appeal Panel, relying on the following grounds:

1. That the Tribunal failed to make any findings with regard to the allegations of abuse in respect of the children the subject of this Appeal.

2. That the Tribunal failed to provide any or any adequate reasons in respect of:
(a) the allegations of abuse of the subject children
(b) the best interests of the children
(c) the Tribunal's decision to order that the return of the children be implemented on a graduated basis.

3. That the Tribunal erred at law by ordering a regime of gradual contact moving to restoration of full time care of the children to the Applicants.

4. That the Tribunal’s discretion miscarried in it failed to have any or adequate regard to the following matters:
(a) that abuse of the boys had occurred in the care of the Applicants;
(b) that the experts and the guardian ad litem did not support any further changes to the children's care arrangements;
(c) that the children did not wish to change their present care arrangements;
(d) that the children have spent a significant amount of time in the care of their present carers;
(e) that Mr.[G] had not made any appropriate concessions and could not accept the Department’s supervision; and
(f) the expert, Mr. Peter Champion’s, evidence as to the effect of the abuse on the welfare of the children.

5. That the finding of the Tribunal that the Department had implicitly failed in maintaining a workable relationship with the [Gs] was wrong in law and in fact and was irrelevant to the decision under review.

6. That the Tribunal erred in making findings of fact for which there was no evidence or which was against the weight of the evidence.

7. That there was too fragile a basis for the Tribunal’s conclusion that the children should be returned to the Applicants.

8. That the Tribunal erred in giving the guardian ad litem’s report dated 23 July 2001 (other than the first 14 pages of that report) any weight in the absence of any cross-examination of her.

9. That the decision was so plainly unjust and incorrect that the Tribunal failed to exercise its discretion according to law.

33 As noted earlier, the appeal was upheld on grounds 1 and 2. As explained in the reasons ultimately given on 19 March 2002, the basis on which grounds 1 and 2 were upheld was essentially that the Tribunal’s reasons were deficient in that the Tribunal should have made findings as to whether there had been abuse or whether there was a risk that abuse had occurred and would occur; and that the Tribunal should have justified their orders as being in the best interests of the children in the light of whatever findings had been made about abuse.

34 I have already summarised the conclusions of the Appeal Panel of its addressing of the merits of the matter.

ISSUES BEFORE THIS COURT

35 It is convenient to discuss the issues argued before this Court under two headings. Firstly, the contention by the appellants that the Appeal Panel erred in law in deciding grounds 1 and 2 in the Department’s Notice of Appeal to the Appeal Panel in favour of the Department: that issue arises out of the amended ground 7. Secondly, whether there was other error of law by the Appeal Panel, essentially in one or more of the following ways: not having regard to aspects of the best interests of the children, apart from the question of abuse; not considering the Starkey report; not assessing the nature and magnitude of the risk of abuse in order that it could be weighed in relation to other factors; and lack of reasons, particularly in relation to these issues. These matters arise under the grounds of appeal other than ground 7.

36 The parties have provided extensive written submissions, which I have considered carefully. I will be very brief in this judgment in outlining the rival contentions of the parties.

ALLEGED ERROR OF LAW ON GROUNDS 1 AND 2

37 Ms. Rigg for the appellants submitted that although the Tribunal did not spell out exactly what was involved in its finding that Ms. T’s oral evidence relating to the activities of 21 March 2001 were preferred over that of Mr. and Mrs. G’s, nevertheless it did deal with the matter on the assumption that abuse had or may have occurred. That matter was dealt with also by Mr. Lennings and Ms. Starkey, who also considered whether Mr. and Mrs. G had motivation to correct any deficiencies in their conduct. Ms. Rigg also submitted the case of M v. M (1988) 166 CLR 69 supported the view that there should be reticence in those cases where abuse was not clearly established on the Briginshaw standard. Furthermore, inadequate reasons do not without more show that the decision involved error: the inadequacy must be such as to warrant the inference that the Tribunal had not exercised its jurisdiction in accordance with law: see Absolon v. NSW TAFE [1999] NSWCA 311 at [67].

38 In my opinion, a question whether there is a deficiency of reasons, and whether that deficiency warrants an inference that a tribunal has not exercised its jurisdiction in accordance with law, is a matter of judgment, and in borderline cases, minds may reasonably differ. I think there is much force in the view of the Appeal Panel that it was necessary for the Tribunal to face up to the question of whether they were or were not satisfied, to the Briginshaw standard, as to what happened on 21 March 2001, and if not, what was the nature and magnitude of the risk of abuse arising from the conflicting evidence about what happened on that occasion. Although, as indicated by M, those matters were not part of the ultimate issue before the Tribunal, namely, what was in the best interests of the children, they were matters which were important to the resolution of that issue. I think also there is much force in the view of the Appeal Panel that it would then be necessary, if abuse or risk was found, to give reasons why restoration was justified notwithstanding the finding of abuse or risk.

39 In these circumstances, I am not satisfied that the Appeal Panel erred in law in deciding that the Tribunal had erred in law because of deficiency of reasons.

OTHER ALLEGED ERRORS OF LAW BY THE APPEAL PANEL

40 Ms. Rigg submitted that the Appeal Panel itself did not assess the magnitude and nature of risk of abuse, so as to weigh it relation to other factors. It simply proceeded on the basis that any non-trivial risk of abuse was an unacceptable risk of abuse so as to fall within the principle stated in M at 78, namely “that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse”. The Appeal Panel, Ms. Rigg submitted, did not consider whether the abuse alleged in this case was of the same seriousness as sexual abuse considered in M, or serious physical abuse; and did not make any assessment of what the degree of risk was. Furthermore, Ms. Rigg submitted, the Appeal Panel totally failed to consider and give weight to Ms. Starkey’s report, simply dismissing it by noting that its status was “unclear”. The Tribunal in substance took the fact of risk of abuse, whatever the magnitude and nature of the risk, to be conclusive, and disregarded all other factors.

41 In my opinion, the judgment of the Appeal Panel does have shortcomings, of the kind submitted by Ms. Rigg.

42 There was no basis for the Appeal Panel’s comment that the status of Ms. Starkey’s report was unclear. It was plainly part of the evidence before the Tribunal, albeit not being made subject to cross-examination: see Black Book 154E-U, and cf. Black Book 133N-R and 264H-265Y. Having regard to those passages, the submissions in relation to that report made by the Department in support of its appeal to the Appeal Panel, challenging the admission of the report into evidence, were quite inappropriate and should not have been made.

43 There is force also in Ms. Rigg’s submission that the Tribunal did not analyse the nature and extent of the risk, in order to decide whether the abuse in question was of the same order as sexual abuse or serious physical abuse, or to assess whether, having regard to the likelihood of further abuse, the risk was truly unacceptable. In the absence of reasons justifying the view that the risk was unacceptable in any circumstances, one might have expected consideration of factors that may have weighed the other way, against the risk of abuse, including the considerations advanced in Ms. Starkey’s report.

44 One other problem with the Appeal Panel judgment is, as mentioned earlier, it set itself the wrong question, namely what was the correct and preferable decision at the time of the Department’s decision. Associated with that, in my tentative view, was an undue restriction on what decision could be made in a review on the merits. Although, as submitted by Mr. Anderson for the Department, the C&P Act and the ADT Act do not give the reviewing body power to make a placement of wards, but only give it power to review a decision of the Minister to terminate custody, the ADT Act does require the reviewing body to decide “what the correct and preferable decision is” and does give the reviewing body power to make a decision in substitution for the reviewable decision. My tentative view is that, under those provisions, if the reviewing body were of the view that, rather than custody being terminated, custody should be continued and there should be steps taken towards restoring the ward to the person whose custody is maintained, a decision to that effect would be within power.

45 However, although in my view the Appeal Panel set itself the wrong question, in my opinion when the Appeal Panel came to give the answer, it did not really answer the question it had set itself. The last paragraph of its reasons, set out above, rather suggests that it took the view that the correct and preferable decision at the time may well have been to make an attempt to re-establish the relationship between the wards and the Gs, but that, having regard to everything that had happened, the correct and preferable decision now was to confirm what had been done.

46 One other criticism that might be made of the Appeal Panel’s decision, although this may not give rise to any possible error of law, is that it made a finding that Ms.T was a credible witness, when it had not heard any evidence from her: there does not seem to have been any basis on which the Appeal Panel could properly have disregarded the criticism of Ms.T’s evidence advanced by the Tribunal. The decision could also be criticised for a simplistic rejection of the evidence of Mr. T, on the basis that his evidence concerned the wrong date, in circumstances where his evidence concerned a day when E was at home from school, and the only relevant day on which E was at home from school was the day on which the abuse allegedly occurred.

47 However, in the end I am not satisfied that these deficiencies amount to error of law in the judgment of the Appeal Panel, or at least error of law warranting the inference that the Appeal Panel did not exercise its jurisdiction in accordance with law. There was a substantial risk that significant abuse had occurred, abuse which might fall short of the seriousness of sexual abuse or serious physical abuse, but which nevertheless could cause significant damage to E. There was an associated risk that the Gs, especially Mr.G., had told lies about what happened, and therefore that attempted co-operation to overcome the problem would not be successful. The evidence of Mr. Lenning and Ms. Starkey was very guarded as to the desirability of returning the children to Mr. and Mrs. G. On the whole, I think the reasons of the Appeal Panel do appear sufficiently from the judgment, and that those reasons do not indicate error of law.

COSTS

48 Neither party has explicitly applied for costs. However, my tentative view is that no order for costs should be made against Mr. and Mrs. G, and I will outline my reasons for this tentative view.

49 This lengthy, traumatic and expensive series of proceedings has arisen in part because of what appear to me to be deficiencies in the processes of the Department.

50 It seems to me that the Department did not give natural justice to Mr. and Mrs. G in relation to the allegations against them. (Even though the interests of the children have priority over giving natural justice to carers, natural justice should be given where possible; and in this case, giving natural justice to Mr. and Mrs. G would I think have promoted the interests of the children.) It appears that they were not given particulars, including particulars of the date and times, of the specific allegations, on 23 March or even on 14 April. Had they been given those particulars, it may have been possible for them to decisively refute the allegations, with the assistance of Mr.T and a client who was allegedly on the premises during the relevant time. The time that passed before Mr. and Mrs. G knew exactly what was alleged against them meant that they lost the opportunity to have clear and cogent evidence from these people.

51 A further aspect of the denial of natural justice was the failure of the Department to put to Mr. and Mrs. G the other allegations that were relied on in the reasons of 24 May. It is notable that in the hearings before the Tribunal and the Appeal Panel, no real attempt was made by the Department to justify those allegations, and Mr. and Mrs. G’s denials of them were essentially uncontradicted.

52 Another unsatisfactory aspect of the Department’s conduct was the failure to notify Mr. and Mrs. G of the subsequently made decision to terminate custody, and to give reasons for that decision. And even allowing for lack of resources in the Department, the delay in investigating Ms. T’s allegations properly, and in interviewing Mr. and Mrs. G, were excessive.

53 One further aspect in relation to the conduct of the Department is that, despite the ultimate confirmation of the Department’s decision by the Appeal Panel and by this Court, that may be considered as being primarily on the basis that it is now too late to undo what had been too hastily and unsatisfactorily done at the time. Even the Appeal Panel, in its final paragraph, expressed considerable reservations as to whether the Department had done the right thing at the time.

54 The order which I propose is: appeal dismissed.

55 FOSTER AJA: I agree with Hodgson JA.

56 BROWNIE AJA: I agree with Hodgson JA.

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