BXS v Department of Family and Community Services

NCAT Administrative and Equal Opportunity|2015-09-25

The Applicant's parenting capacity

Ms Potter opines that the Applicant is not able to meet the complex individual emotional, psychological and behavioural needs of the children in either the short-term or long-term, as a result of the following deficits in the Applicant's parenting capacity as follows:

Difficulties in managing the stress associated with caring for the subject children due to their complex needs;
Difficulties sustaining structure and routine in the home environment and responding to the children in a way that is consistently nurturing, validating and empathetic, and the children's exposure to verbal and physical aggression in the home;
Difficulties in regulating her emotions when experiencing distress, and placing the needs of the children above her own needs. This has been demonstrated by her inappropriate comments to the children (for example, by expressing negative views about the Respondent in the children's presence, and continuing to cry during contact visits); and
A lack of insight into the impact of her comments on the children's emotional functioning (for example, causing them distress and confusion).

Ms Potter maintains that the Applicant's parenting capacity is not likely to significantly change, even with increased supports and respite opportunities. In this regard, Ms Potter said that it was not feasible for a primary care-giver to have a regular weekly respite arrangement, noting that the children are of school age and their attendance at school each week-day would itself provide respite opportunities. Ms Potter also reinforced on a number of occasions that the Applicant had in fact attended specific parenting courses/education on at least three occasions, with no evidence of her ability to apply learned skills and no resulting improvement in her capacity.
Ms Potter further states: "Any restoration would be considered high risk and history indicates that in spite of attending parenting courses……….(the Applicant) has not been able to provide a reparative and consistent environment to the children". [7]

The views of the children

Master T expressed to Ms Potter a wish to live with his uncle (the Applicant's son).
Miss K expressed to Ms Potter a wish to live with the Applicant. Miss K expressed to Ms Potter that if she were to live with the Applicant, it would be even better if she could see all of her cousins with whom she resides in her current placement. She also said that if she were not able to return to the Applicant's home, she would like to remain living in her current placement on a permanent basis.
Miss C expressed to Ms Potter a wish to live with the Applicant. She also indicated that things could be even better if her mother could stay overnight and her two youngest brothers could also live there.
Notwithstanding that the girls are almost 12 years of age, Ms Potter recommends caution be given to the weight of their wishes to return to live with the Applicant, which Ms Potter opines may be formed in the context of the girls wanting to ensure the Applicant is safe and well, "demonstrating role reversal with the children experiencing confusion".

The impact on the children if they do not return to the Applicant's care

Ms Potter opines that there would be some impact on the children's emotional functioning if they were advised they were not to be returned to the Applicant's care. However, Ms Potter is of the view that they are settled in their current placement, and they appear to have established attachments to their current carers, including Ms SL who is a family member. That they are with cousins and an aunt will, in Ms Potter's view, "allow them to experience the more positive outcomes associated with kinship care in comparison to general foster care" [8] .

The steps required should the children be returned to the care of the Applicant

In light of her recommendations that the children not be returned to the Applicant's care, Ms Potter elected not to address this area.

An assessment of the contact between the Applicant and the children

Ms Potter expressed concern about the Applicant's inability to regulate her emotions in front of the children and her making of statements which cause confusion and distress in the children. As a consequence, Ms Potter recommends that contact be very closely supervised so as not to de-stabilise the children's current placement. Ms Potter does not recommend that telephone contact between the Applicant and Master C be permitted at the present time, but that it be reviewed if Master T's emotional regulation continues to develop and the Applicant is able to demonstrate her ability to engage in appropriate conversation with Master T.

Guardian ad Litem

The Guardian ad Litem, Mr Stephen Stuart, interviewed the children on 25 August 2015 and 30 November 2015. He also spoke to the children's teachers on 25 August 2015, and in the case of Master T's teacher, also on 30 November 2015. Mr Stuart also spoke with the AMS case worker for Miss K and Miss C.
Mr Stuart states the children's teachers reported that the children are now much happier and more settled than while in the care of the Applicant. Master T's teacher reported that while in the Applicant's care, Master T was always agitated and on edge, and would engage in shouting with the Applicant. The teacher reported that the Applicant would often tell Master T that she was going to see his mother while he was at school, which caused Master T to deliberately behave poorly with a view to being sent home from school (presumably to seek further time with the Applicant and/or his mother). The teacher also reported difficulties in the Applicant following through with suggestions made by the school, and with managing the child's complex behaviours, resulting in an escalation of problems. The teacher reported that since being placed with his current carers, Master T is much happier, less angry, and has been able to achieve higher reading levels.
The AMS case worker reported to Mr Stuart that Miss K and Miss C currently enjoy being part of a larger family with everyone having clear responsibilities and tasks.
In their initial conversation with Mr Stuart, the children expressed that they would prefer to be living with the Applicant, and according to Mr Stuart, "but realised that this was unlikely to happen because of what had happened when they used to live there" [9] . However, they also expressed that they were happy living with their current carers. Notably, however, one week after Mr Stuart's initial conversation with Miss K and Miss C, the placement broke down and they were subsequently placed with Ms SL and Mr MB, their current carers.
In his second affidavit, Mr Stuart indicated that the children are significantly conflicted about where they want to stay on a full-time basis. According to Mr Stuart, "(t)hey love living with (Ms SL and Mr MB) and their cousins but they feel really guilty about saying it as it may hurt their Nana and like all grandchildren they only want their grandparents to be happy and not be hurt in any way. The children present with quite complex behaviours but according to their teachers and the AMS Social Worker there have been significant improvements in the three children since leaving (the Applicant's) care". [10]
In addition to his affidavit evidence, Mr Stuart provided written submissions to the Tribunal. Mr Stuart supports the decision of the Respondent to remove the children from the care of the Applicant. Furthermore, Mr Stuart stated that in order for the children to continue to thrive and reach their potential, they will need to remain in a long term placement with (Ms SL and Mr MB) under the parental responsibility of the Minister, and recommends that the Applicant and other family members have reasonable access to supervised contact on at least a monthly basis.

Submissions of Applicant

Counsel for the Applicant submits that the majority of the factual basis for the Respondent's decision is denied by the Applicant, and the evidence does not support the asserted reasons for the removal of the children. In addition, Counsel for the Applicant submits that the Respondent's decision fails to have regard to a number of relevant considerations, including:

The attachment of the children to the Applicant, including the fact that the children had always lived with the Applicant;
The positive aspects of the placement; and
The failure of the Respondent to carry out its commitments to support the placement, despite recommendations by experts that intensive supports and regular respite were required.

In relation to this latter point, Counsel for the Applicant submits that the "intensive support" as recommended in the initial assessment of the placement did not in fact occur, nor was regular respite for all children at the same time ever given to the Applicant, despite the high needs of the children.
In addition, Counsel for the Applicant submits that despite the children's Care Plans indicating that the Respondent would support the Applicant to develop an understanding of their Aboriginal culture, there were no proactive steps taken by the Respondent in this regard.
Counsel for the Applicant points out that none of the services that assessed the Applicant during the time the children were in her care (with the exception of Ms Gurton) recommended the removal of the children.
Counsel for the Applicant submits that the risk of harm to the children as a result of violence or conflict in the placement has been grossly exaggerated. Counsel submits that the Applicant has provided a reasonable explanation for the incident of 21 April 2015. Furthermore, he submits the Applicant has been honest about her use of physical discipline in the past, which was not unlawful and ceased well before the removal. Moreover, noting that any "risk" of harm (physical or psychological) could be ameliorated by the provision of appropriate support, Counsel submits the level of risk "comes nowhere near reaching a level of a risk of harm that is unacceptable", and is not a sufficient basis for the removal of the children.
Counsel for the Applicant submits that in light of the age of Miss K and Miss C, significant weight should be given to their wish that they be returned to the care of the Applicant. Counsel further submits that the breakdown of the girls' placement with Mr and Mrs JL is a fact from which an inference can be drawn that Miss K and Miss C's poor behaviours were a manifestation of their desire to return to the Applicant's care.
Furthermore, Counsel for the Applicant submits that the opinions of Ms Potter should be rejected as they lack balance and objectivity, and demonstrate bias in favour of the Respondent, in that:

The additional material "coloured" Ms Potter's opinions.
Ms Potter failed to appropriately balance the information received from the Respondent and the Applicant and held an unduly negative view of the Applicant.
Ms Potter demonstrated an unwillingness to criticise the Respondent and made opinions unsupported by the evidence.
Ms Potter failed to provide an assessment in regard to a potential restoration process, contrary to common expert practice.

Counsel for the Applicant submits that the Guardian ad Litem also lacks objectivity in his opinions and comments, which Counsel submits are unsupported by the evidence, and cannot be a reliable indicator of the wishes of the children.
Counsel for the Applicant submits that to uphold the decision to remove the children would be unjust and would reward poor conduct on the part of the Respondent. Counsel requests that consideration be given to various options for the restoration of the children to the Applicant, including the return of Miss K and Miss C only, having regard to their age and wishes as well as the nature and longevity of their relationships with the Applicant.

Submissions of Respondent

Counsel for the Respondent submits that the decision of the Respondent was made in the interests of the children; and, in the circumstances that existed both then and now, is the most appropriate to meet their interests and needs.
Counsel for the Respondent acknowledged that although the provision of the material to Ms Potter was regrettable and inexcusable, the submission that Ms Potter was partial is not supported by the evidence and should be rejected. Counsel for the Respondent submits that that the effect of the additional material was not so significant so as to materially influence the conclusions of Ms Potter's report, which clearly recommends in the interests of the emotional psychological and physical wellbeing of the children, that a return of their care to the Applicant is not appropriate in any circumstances.
The Respondent acknowledges that the Applicant's inability to care for the children "does not arise because of her lack of love, commitment or desire to care for them". Rather, the Respondent submits there it is a result of a "fundamental interplay" of the complex needs of each of the children and the deficits in the Applicant's parenting capacity.
In addition, Counsel for the Respondent points to the evidence which indicates that at the present time the Applicant continues to experience difficulties in caring for Miss A. This includes Miss A's lack of regular school attendance and a lack of regular engagement with mental health supports; a continuation of Miss A spending extended periods of time in her bedroom; and a continuation of the Applicant displaying her emotions (including with depressive effect) in Miss A's presence. Counsel for the Respondent submits that the evidence, together with Ms Potter's assessment, "clearly demonstrates the wisdom of the (Respondent) taking the action it did in removing the children".

Tribunal reasoning

In coming to its decision, the Tribunal took into account all of the evidence, both oral and documentary. It also took into account the submissions of the parties, as well as the important principles set out in section 9 of the Care Act and the objects of the Civil and Administrative Tribunal Act 2013.
As indicated previously in these Reasons, the Tribunal's role is to determine the correct and preferable decision having regard to the material before it. It has now been almost eight months since the children were removed from the care of the Applicant. In that time, the first (emergency) placement for Miss K and Miss C has broken down, and their current placement (with their brother) has been for approximately 3.5 months.
There is little doubt that the Applicant loves and cares deeply for the children, and this is reciprocated by them. The Applicant and the children have a strong bond and affection for each other, developed over many years living together in the same home. Indeed, the Applicant has been the predominant source of support for the children for the majority of their lives. She has made a number of sacrifices, including relinquishing her employment to provide care for them, and no doubt foregoing many of her own social and leisure activities and interests.
However, the evidence demonstrates that the ongoing primary care of the children by the Applicant was not, and is not, sustainable. The behavioural issues and care needs of each child are such that their best interests, and their safety, welfare and wellbeing are unable to be properly met in the Applicant's care.
In this regard, the Tribunal accepts, consistent with the findings and opinions of Ms Potter, that even if the Applicant were provided with increased respite opportunities and support, including that which had been recommended, their introduction and maintenance would be unlikely to materially change the way the care is provided to the children, or significantly reduce the risks to their safety and wellbeing.
The Tribunal accepts the submission of the Applicant that any carer would be challenged by caring for four children with complex needs. However, the reality is that the Applicant was providing the primary care on her own, and had, and continues to have, her own significant and unresolved grief issues. It is also apparent that she has found it difficult to reconcile the different roles she is required to play; that of primary care-giver as well as grandparent to children. Despite attendance at specialist parenting courses and case-work support, the situation did not improve. Rather, the evidence shows that the problems were a consistent theme and were unable to be resolved, resulting in the crisis that occurred on 21 April 2015.
However, it is important to note that the Tribunal took issue with certain aspects of the psychological evidence. As already indicated, the material to which Ms Potter had access went beyond that which was agreed by the parties. Ms Potter's report, whilst comprehensive, references significantly more of the Respondent's records and account of events than the oral and written evidence of the Applicant.
In addition, there was considerable discussion about the children's behaviours prior to, and subsequent to, their supervised contact with the Applicant. In this regard, the Tribunal was not satisfied, to the extent suggested by Ms Potter, that their behaviour and demeanour was solely as a result of the Applicant's conduct and the nature of her relationship with the children. Rather, the Tribunal considered that other factors are likely to be relevant, including the impact and circumstances of the removal itself; the sudden change of placement, the introduction of supervision during contact with their family members, and the uncertainty created by the administrative and legal proceedings.
Similarly, the Tribunal was also not satisfied that the Applicant's behaviours during supervised contact visits necessarily provide a wholly reliable indicator of deficits in her parenting capacity. Indeed, it would appear that other factors would be relevant, including the time constraints of such visits and the Applicant's awareness that her actions and communications were being observed and monitored, thereby potentially impacting on her ability to give consistently instinctive responses and reactions. Additionally, there may be legitimate reasons, for example, why during contact visits the Applicant was focused on a game being played (rather than engaging in separate verbal interactions with one child), including to ensure the continuity of the game for benefit of the other child, and/or issues with properly hearing all of the child's interactions. Indeed, there is a notable discrepancy between Ms Potter's assessment of the visits and the (non-clinical) observations of supervising staff, who reported consistently positive relations between the Applicant and the children.
The Tribunal carefully considered the Applicant's submission that in Ms Potter' assessment, "much was made of such small matters", with her criticisms often being "trivial or unreasonable", and imposing an unreasonably high standard of parenting. On initial consideration, this submission has some merit. There was a considerable level of scrutiny of, and concentration on, details of actions and comments of the Applicant. However, on the other hand, it must be noted that the Applicant, though the children's grandmother, was also the authorised carer of children in ministerial care and therefore subject to the inherent regulation that such circumstances require. Importantly, the subject children are vulnerable children who have been exposed to trauma and violence, and have been removed from their natural parents in the interests of their care and protection. In this regard, their vulnerability and susceptibility render the administration of their care and the protection of their psychological wellbeing particularly significant.
Furthermore, there were other aspects of Ms Potter's evidence which the Tribunal also accepted. Notwithstanding its criticism of parts of Ms Potter's written report, the Tribunal found Ms Potter to be an impressive witness, whose responses in cross examination demonstrated a developed understanding of the issues and a thorough approach to the assessment. The Tribunal accepted the majority of Ms Potter's opinions as they related to the Applicant's parenting capacity, the attachment of the children to the Applicant, and her recommendation that the children not be returned to the Applicant's care.
The Tribunal finds that the deficiencies in the Applicant's parenting capacity are apparent from the evidence. That the situation may have been managed more appropriately if further respite or support was given is difficult (and in the view of the Tribunal, not necessary) to determine. However, the Tribunal accepts the opinion of Ms Potter that there is limited evidence to indicate that the nature of the attachment and the Applicant's parenting capacity is likely to change, even if suitable interventions are put in place simultaneously.
Notwithstanding the focus by the parties on Ms Potter's opinions and findings, it is important to note that a psychological assessment is only part of the material that the Tribunal may take into account in coming to its decision. In this regard, the assessment by Ms Potter was not determinative of the Tribunal's decision in this matter. Rather, the Tribunal took into account all of the evidence before it and made a determination on its totality.
Importantly, the Tribunal is cognizant of the section 9 principles of the Care Act, and in particular, that in regard to any decision to be made concerning the children, their safety, welfare and well-being are paramount. In this regard, the Tribunal has concerns about the history of the children's exposure to physical, verbal and psychological aggression, including by the children's mother and (former) partners.
It is apparent that the Applicant is close to her daughter and wishes that she (her daughter) has more capacity to be involved with the children, including as a potential source of assistance in their care. However, it appears from the evidence (including her own affidavit evidence [11] ) that the Applicant continues to see the main risks attaching to the partners of her daughter, rather than viewing the risks posed by her daughter in her own right. Her inability to recognise the risks in relation to her daughter was highlighted by her apparent lack of concern of her daughter's presence in her home without her supervision while she (the Applicant) was in hospital. [12] This raises concerns about the Applicant's judgement and insight. Notwithstanding that prior to the children's removal, Ms KP's contact with the children was not required to be supervised by the Respondent, there was an expectation that the Applicant would supervise and oversee such contact. Furthermore, it is clear that considerable caution was required by the children's primary care-giver, particularly in light of the children's past exposure to violence and aggression, including at the hands of their mother and her partners.
That the Applicant, as Ms KP's mother, loves and cares for her daughter and wishes for her to have contact with her children is not in dispute. However, the Tribunal is concerned that the Applicant lacks the ability to dispassionately and objectively manage situations and take appropriate protective steps in circumstances where the children in her care may be at risk of harm, either physical or psychological. This is of particular relevance given that, at the present time, a strained relationship exists between the Applicant and the Respondent, who the Applicant believes has subjected her to unfair and unjust treatment. As such, if the children were to be returned to her care, there is a legitimate question about the Applicant's capacity to meaningfully engage with the Respondent and actively seek out its help and support if the children in her care were at risk.
The Tribunal carefully considered the Applicant's submission, in the alternative to all three children being returned to the Applicant's care, that only Miss K and Miss C be returned. The Tribunal takes into account the age of the girls and the fact that in less than three months' time they will be able to instruct a legal representative (including in proceedings under the Care Act). The Tribunal is also cognisant of the principle outlined in section 9(2)(a) of the Act that the views of the child are to be given due weight in accordance with the developmental capacity of the child and the circumstances.
Whilst Miss K and Miss C express a consistent preference to return to live with the Applicant, the evidence also indicates that they do not appear to have specific objections to their current placement with Ms SL, Mr MB and their cousins. It is a relevant fact that the girls have complex behaviours, which they experiencing difficulty in controlling. Their responses about not seeing the need for anything to change if they were to return to the care of the Applicant, and the response of Miss C (who indicated a wish to see more of her mother and her two youngest brothers in the Applicant's home), also demonstrate a naivety and vulnerability that is relevant to the weight to be accorded to their wishes. Whilst having regard to their views, the Tribunal was not satisfied that a return of Miss K and Miss C to the care of the Applicant, would be in their best interests or promote their safety, welfare and wellbeing.
It was apparent to the Tribunal that the timing of the children's removal was one of evident crisis. At the relevant time, the Applicant was clearly under significant stress and strain. However, there were also multiple other concerns that had been present since the commencement of the placement with the Applicant. That the removal of the children happened in crisis, rather than in a more structured and planned manner, is unfortunate for all parties involved, including the Applicant and the children.
Furthermore, the Tribunal finds that there were deficiencies in the Respondent's oversight of the placement. Many reports and assessments were undertaken making clear recommendations for support and action, yet which were ultimately not closely followed-up and pursued. One might have thought in this case there was particular importance in doing so, given that the Applicant was providing care on her own to four children, all of whom have complex behaviours and needs. Whilst the Respondent's deficiencies in this matter were apparent, the Tribunal finds that there is no basis for the allegations made by the Applicant against Mr Wells, and in in particular his actions in the context of the children's removal on 21 April 2015. Rather, the evidence demonstrates that Mr Wells' actions were taken out of a genuine concern for the safety and welfare of Miss A, and in the context of his responsibility as case manager for the children.
As indicated previously, in reviewing the decision of the Respondent, the Tribunal is tasked with determining the correct and preferable decision as at the date of the Tribunal hearing. The evidence indicates that the children's transition has not been without issue, as evidenced by the break-down of the girls' initial emergency placement and some continuing problematic behaviours demonstrated by Master T. However, on balance, the children are faring relatively well in their current placement, with good reports about their school attendance and a reduction in their problematic behaviours. Significantly, the three children are now living together and their placement is with a member of their extended family, who is well-known to the children, and, who prior to April 2015, had considerable experience in providing respite care for the children, particularly Master T. The Tribunal finds that there is a lack of evidence to substantiate the Applicant's claim that Ms SL's care of the children is financially motivated. Rather, the evidence indicates that Ms SL has a genuine care and concern for the children, and an expressed desire to have a respectful relationship with the Applicant.
Indeed, it is evident that there was once previous communication between the Applicant and the Respondent, and between the Applicant and the current carers, and that matters pertaining to the children were able to be discussed and determined together in collaboration. However, it is apparent that recent events, including the Tribunal proceedings, have resulted in conflict between the parties. It is hoped now that the application has been determined by the Tribunal, there is an opportunity for the future resumption of a civil relationship between the Applicant, the Respondent and the current carers, in the interests of the children.
Furthermore, the Tribunal accepts that the children are still settling into their new placement, and it is important that they feel secure and stable in their current accommodation and have confidence in the care arrangements put in place for them. Accordingly, at the present time, the Applicant is restricted to monthly supervised visits with the children, and is not permitted to have current telephone contact with Master T. However, it is hoped that in the future, there may no longer be a need for contact to be supervised, and that as the children's grandmother, the Applicant will be able to spend and enjoy time with her grandchildren, independent of the involvement of the Respondent.
In conclusion, on the balance of probabilities, having regard to all of the material before it and the applicable law, the Tribunal is satisfied that it is in the best interests, and promotes the safety, welfare and wellbeing of the children, Miss K, Miss C and Master T, that the correct and preferable decision is to affirm the decision of the Respondent to remove from the Applicant the responsibility for the daily care and control of the said children.

Order and Recommendations

The order of the Tribunal is as follows: 1. The decision of the Respondent to remove from the Applicant the responsibility for the daily care and control of the subject children is affirmed.
Pursuant to section 32(2) of the Community Services (Complaints, Reviews and Monitoring) Act 1993, the Tribunal recommends: 1. That the Respondent develop a plan for the introduction of unsupervised contact visits between the Applicant and the children, to commence at a date determined by an independent health professional (e.g. social worker or psychologist); 2. That the unsupervised contact include the Applicant's invitation to, and attendance at, the children's schooling and extra-curricular events. 3. That the Respondent arrange for an appropriately qualified family law mediator to provide mediation sessions between the Applicant and the children's current carers, with a view to assisting them to reach agreement on future contact and communication with the children and each other.

Endnotes

Exhibit A2, p 4
Exhibit R7, Annexure B
Exhibit A2, p 6
Exhibit R5, p222
Exhibit R6, pp 28 & 31
Exhibit R6 p 68
Exhibit R6, p 68-69
Exhibit R6, p 70
Affidavit of Guardian ad Litem dated 5 September 2015 at 14
Affidavit of Guardian ad Litem dated 1 December 2015 at 8
Exhibit A2 at 110
Exhibit R3, Annexure A I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 December 2015

Role of Tribunal

The role of the Tribunal in hearing and determining the application is to decide the correct and preferable decision having regard to the material before it, including any relevant factual material and any applicable written or unwritten law. Administrative Decisions Review Act 1997, s 63(1)
The Tribunal sits in the shoes of the Respondent and considers the matter afresh as at the time of the hearing.
The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Act. Civil and Administrative Tribunal Act 2013, s 36.
The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or the Civil and Administrative Rules 2014 do not otherwise make provision. The Tribunal is not bound by the rules of evidence, except in relation to privileged disclosures (Evidence Act 1995, s 128) and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: Civil and Administrative Tribunal Act, s38 and s 67.
Procedural fairness and other aspects of natural justice, of course, apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balencio (1987) 8 NSWLR 436.

At a glance

Court

Decision date

Source

Judgment (11 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (2)