DOK v Anglicare

Tribunal's jurisdiction to review the removal decision

1. The Tribunal has jurisdiction to review a decision to remove a foster child from the care of an authorised carer.
2. Section 30 of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act") provides that the Administrative Decisions Review Act 1997 (NSW) provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator. Pursuant to s 9(1) of the Administrative Decisions Review Act, the Tribunal has administrative review jurisdiction over a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under the Administrative Decisions Review Act.
3. Section 28(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) provides that a person may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act of a decision that is an administratively reviewable decision under s 245 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the "Care Act").
4. A decision of "the relevant decision-maker to grant to, or to remove from, an authorised carer the responsibility for the daily care and control of the child or young person" is "an administratively reviewable decision for the purposes of section 28(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993": Care Act, s 245(1)(c). The "relevant decision-maker" is the person or body authorised by or under the Care Act or the regulations to make the decision (Care Act, s 245(2)). As the designated agency responsible for the young girl, Anglicare has power to remove the responsibility for her daily care and control from an authorised carer pursuant to s 140 of the Care Act.
5. For these reasons, I find that the Tribunal has jurisdiction to hear the foster mother's application for review of Anglicare's decision to remove the foster child from her care, subject to what follows concerning her failure to apply for internal review.

Can Tribunal deal with the application in the absence of an internal review?

1. The foster mother did not apply for internal review of the decision to remove the child from her care. She applied to the Tribunal for review of the decision on 24 August 2018 and applied for a stay of the decision on the same day.
2. The general rule is that an application to the Tribunal under the Administrative Decisions Review Act may not be made unless the applicant has applied for an internal review and the review is taken to have been finalised (Administrative Decisions Review Act, s 55(3)). However, if this has not occurred, the Tribunal may deal with the application if, relevantly, it is satisfied that it is necessary for it to do so in order to protect the applicant's interests and the application was made within a reasonable time (Administrative Decisions Review Act, s 55(4)(b)).
3. The foster mother submitted that it was necessary for the Tribunal to deal with the application in order to protect her interests because there was a very strong attachment between the young girl and herself. She said that the separation was traumatising for her and for the young girl. She also said that the young girl's behaviour had deteriorated since she started living at her cousin's house and that she had become extremely distraught.
4. Ms Renshaw, for Anglicare, accepted that the application to the Tribunal had been made within a reasonable time. However, she submitted that it was not necessary for the Tribunal to deal with the application to protect the foster mother's interests. She pointed out that the applicant herself had said that the attachment between her and the young girl would not be broken by the time of the hearing, as it was so strong. Ms Renshaw also pointed out that Anglicare was maintaining thrice-weekly contact between the applicant and the young girl. She submitted that, if the Tribunal were to order that the girl be returned to the foster mother now, and the outcome of the Tribunal proceedings was to affirm Anglicare's decision, it would be very unsettling for the young girl to be moved again.
5. I am satisfied that the application to the Tribunal was made within a reasonable time. Although the young girl was removed from the foster mother's care in early May, it was not until 10 August that a decision was made to place the child elsewhere on a long term basis. The foster mother applied to the Tribunal two weeks later.
6. I also find that it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests.
7. The first reason for this is that the foster mother is clearly very distressed by her separation from the child, both on her own account and due to her concern for the child to whom she has become attached. She used the word "traumatic" to describe her experience of separation from a child to whom she has become a mother. She also described the young girl's distress when they had to be separated after contact visits, something which was clearly also very upsetting to the foster mother. I am persuaded that the degree of emotional suffering the foster mother is suffering is very high and is ongoing whilst the young girl is away from her.
8. Secondly, if the Tribunal were not to deal with the application and the applicant were to now apply for internal review, that process could take up to 21 days: Administrative Decisions Review Act, s 53(6). If the outcome of the internal review was to affirm the original decision, and the foster mother made another application to the Tribunal, it would take some time for that to come to hearing, generally a matter of months. It is quite possible, if not likely, that the proceedings would not be heard until next year and, even if they were heard this year, that a decision would not be made until next year. By that time, the young girl would have been living away from the foster mother for a considerable period of time, and may have formed other attachments. The Tribunal would need to have regard to the effect of unsettling the child's living arrangements once she had been in them for some time. The likelihood of the Tribunal deciding to return the child to the foster mother after a significant period of time had passed since the removal of the child from her care, would be much diminished.
9. I am satisfied, therefore, that it is necessary to deal with this application in order to protect the foster mother's interests.
10. I note also that the Care Act "is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount": Care Act, s 9(1). If I am entitled, or if it is necessary, to consider this principle when making a decision as to whether to deal with an application in the absence of an internal review, I find that the safety, welfare and well-being of the young girl are best served by the Tribunal dealing with the application. This is because this is most likely to finally determine the young girl's care arrangements in an expeditious way.
11. For these reasons, the Tribunal determines to deal with the application, even though the applicant has not duly applied for internal review.

Should the Tribunal grant the stay?

1. Under s 60(2) of the Administrative Decisions Review Act, "the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application."
2. The Tribunal's decision as to whether or not to grant a stay does not determine the substantive review application of an applicant: DFS and DFT v Challenge Community Services [2017] NSWCATOD 177 at [18].
3. The Tribunal may make an order under s 60(2): "only if it considers that it is desirable to do so after taking into account: (a) the interests of any persons who may be affected by the determination of the application, and (b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and (c) the public interest" (Administrative Decisions Review Act, s 60(3)).

Interests of persons who may be affected

1. The main persons who may be affected by the determination of the application are the young girl, the foster mother, the cousin with whom the young girl is living, the young girl's birth mother and birth father and Anglicare.
2. Subject to my consideration below of risks to the young girl whilst in the foster mother's care, I find that it is the young girl's interests that the stay order be made. That is because I am satisfied from the evidence that she has formed a strong attachment to the foster mother, and regards her as one of her two mothers - her other mother being her birth mother. The foster mother's evidence, referred to above, was that the attachment was very strong. This is supported by the young girl's biological father who describes his daughter as being "very attached" to the foster mother and the young girl's biological mother who says her daughter "has a very strong emotional bond" with the foster mother. Given that the young girl has lived with the foster mother since birth, it could be expected that it would be distressing for the young girl to be separated from her. The foster mother has given evidence of manifestations of that distress in the young girl.
3. Anglicare has provided evidence, which is discussed below, that its staff members have reported that the young girl appears settled and happy in her new placement. The Tribunal accepts that Anglicare staff members have formed this view. Whilst she may appear settled and happy on visits from Anglicare staff members, this is not inconsistent with her also showing signs of distress when being parted from her foster mother. Her emotional state may well change from time to time and the appearance of happiness does not necessarily mean she is not also experiencing difficulties with the separation from her primary attachment figure.
4. The foster mother has facilitated contact between the young girl and her biological parents. This is very positive for the young girl and it is in her interests to be in a situation where such contact is encouraged. The extent to which the young girl has contact with her biological mother's side of the family, whilst staying with the cousin on her father's side of the family, is unclear.
5. Both the biological mother and the biological father have provided letters expressing their wishes that the young girl remain in the foster mother's care. The biological mother states that she is "very distraught" that her daughter has been removed from the foster mother. I find that it is in the biological parents' interests that the young girl be returned to the foster mother, both because she facilitates contact with them, and because the foster mother is their preferred carer for their daughter.
6. It is clearly in the foster mother's interests for the young girl to be returned to her, due to their strong attachment and to her emotional suffering during their separation.
7. The Tribunal does not have the benefit of evidence from the cousin with whom the young girl is currently living. However, it may be inferred, from his agreement to have the young girl in his care, that he wants her to continue to live with him and it is not in his interests for the young girl to return to live with the foster mother.
8. It is not in Anglicare's interests that the young girl be returned to the foster mother, in that it is contrary to the decision Anglicare has made.

Anglicare's submissions

1. Anglicare made a number of submissions in opposition to the stay. These were to the effect that the young girl would be at risk if she were to be returned to the foster mother's care. Anglicare also said that the ongoing contact visits which it facilitated enabled the foster mother and the young girl to maintain a relationship, so that a stay was not necessary.
2. Anglicare relied upon an affidavit of one of its regional managers ("the Manager"). The Manager was not made available at the hearing for cross-examination.
3. The Manager made the following statements in his affidavit: 1. In addition to the allegations made about the sexual assaults made by the adolescent boy in the foster mother's care, further allegations had been made identifying two of the foster mother's adolescent grandsons as perpetrators; 2. It had been reported to Anglicare by a number of family members of both the young girl and the adolescent children, formerly in the foster mother's care, that the foster mother had disclosed information to them about allegations made against the adolescent boy; 3. It was reported that the foster mother's adult son had moved into the household before Christmas in 2017, and the foster mother had not informed Anglicare that another adult had moved into the household; 4. The two adolescent children in the foster mother's care stated that the foster mother told them not to tell Anglicare that her adult son had moved into the household; 5. The adolescent girl in the foster mother's care had reported that she had informed the foster mother that the foster mother's adolescent grandson had acted inappropriately towards her, and that the foster mother had instructed her not to tell anyone, as the children would be taken away; 6. It was reported by Anglicare staff supervising contacts between the foster mother and the young girl, that the foster mother made verbal threats towards Anglicare staff, including the Manager. 7. Since being placed in the care of her cousin, Anglicare staff have reported that the young girl is settled and happy. 8. It is reported that the young girl previously had a poor diet, high in sugary food, and is now eating healthier food and has lost weight.
4. The foster mother gave evidence, responding to those allegations as follows: 1. When she learnt of the allegations against one of her grandsons, she immediately sent him back to his mother; 2. After the foster children had been removed from her care, Anglicare instructed the foster mother not to say anything to anyone about this. The parents of the foster children kept calling and she had to pretend not to be there and not answer the telephone. Eventually, on the eighth day, she told them what had happened, because the parents wanted to know where they were. The foster mother said she "looked up the privacy thing" and that you were allowed to tell parents; 3. She said she had told the caseworker that her adult son came to the house for contact visits with her grandson, and the caseworker had told her this was okay; 4. The foster mother had never told the foster children not to tell Anglicare that her adult son had moved into the household; 5. It was not true that she had told the adolescent girl not to tell anyone about the inappropriate behaviour of the foster mother's grandson; 6. The verbal threat she had made was: "I wish I could just shake [the Manager] and make him wake up to himself so he could see what it's doing to [the young girl]." 7. The young girl wishes to return to the foster mother's home after each contact visit and cannot understand why she has to return to the cousin's house. She is not happy and settled; rather she is distressed and her behaviour has got worse. 8. The young girl did not have a sugary diet whilst living with the foster mother.
5. The Manager's evidence was almost entirely hearsay. Much of it was second or third hand hearsay. Whilst the Tribunal is not bound by the rules of evidence (NCAT Act, s 38(2)), those rules provide a useful guide to the reliability of evidence. Given the additional circumstance that the Manager was not made available for cross-examination, the Tribunal has given only limited weight to his evidence.
6. The Tribunal understands that, in child protection matters, there are some difficulties associated with providing detailed evidence of allegations against foster parents, particularly where they are made by children and/or are the subject of an ongoing investigation. However, the Tribunal may make orders protecting the confidentiality of evidence under s 64 of the NCAT Act. The respondent did not tender any confidential evidence or seek to obtain any such orders in this case.
7. The Tribunal's findings as to the matters raised by the Manager are, adopting the same numbering as that used above: 1. There is no evidence as to the matters alleged against the foster mother's grandsons or the circumstances in which these occurred. The Tribunal accepts the foster mother's evidence that she sent her grandson back to his mother when she learned of the allegations against him. The Tribunal does not consider that this allegation against the foster mother establishes that the foster mother poses any risk to children generally or to the young girl in particular; 2. It may have been preferable for the foster mother to say nothing to the parents of the foster children, but it appears from the limited evidence available to the Tribunal, that their biological parents were left in an unacceptable position of not having been told that the children had been removed from her care. I do not consider that this allegation is probative of the submission that the foster mother is unsuitable to care for the young girl or poses a risk to her; 3. The foster mother has provided an explanation for her alleged failure to disclose the presence of her adult son in the home. In the absence of more reliable evidence as to the allegation that she had failed to inform Anglicare that her son had moved in, I am not prepared to accept the allegation; 4. The allegation that the foster mother had instructed the foster children not to tell Anglicare about the presence of her adult son in the house would be concerning, if established. However, there is no evidence as to the source of this information - that is, as to the person to whom the foster children are alleged to have provided this information - or as to what was allegedly said. The foster mother appeared to be a truthful witness. I accept the foster mother's evidence that this allegation is untrue; 5. I make the same findings about the fifth allegation, for the same reasons; 6. I accept that the foster mother made the verbal threat of which she has given evidence. It is understandable that she was frustrated in the situation in which she was placed. I do not consider that it indicates that she is an unsuitable person to look after the young girl; 7. It is unclear from the Manager's evidence which Anglicare staff have reported that the young girl is settled and happy, and there is no evidence as to the frequency or duration of their visits to her. Nor is there evidence as to how recently these observations were made. I accept that this report was made by at least one Anglicare staff member. However, I also accept the foster mother's evidence that the young girl has been distressed when leaving her at the end of contact visits and has asked to go home; 8. There is no explanation of how the Manager formed the view that the young girl had a poor and/or sugary diet when living with the foster mother. I accept the foster mother's evidence that she did not.
8. Ms Renshaw submitted that there was a risk to children living with the foster mother because she had failed to prevent the alleged abuse occurring. The foster mother gave evidence that the abuse of the young boy is alleged to have occurred in the middle of the night when she was asleep or when she was in the shower. I do not consider that there is sufficient evidence to indicate that the foster mother acted inappropriately or irresponsibly in relation to protecting the young boy who was allegedly abused.
9. The foster mother is now living alone. I find that there would be minimal if any risk to the young girl if she were to live with the foster mother in these circumstances.

The public interest

1. It is necessary to consider the public interest when deciding whether to grant a stay (Administrative Decisions Review Act, s 60(3)(c)).
2. As Brereton J has observed, "there is considerable public interest in the welfare of children in out-of-home care": The Secretary, Department of Family and Community Services v Allana Pearl Smith [2016] NSWSC 1384 at [30].
3. It is in the public interest to ensure that children are not placed in situations where they are emotionally, physically and/or sexually at risk. It is also in the public interest to ensure that children in out-of-home care are placed in stable environments, particularly where there is evidence of long-term and deep attachment.
4. The foster mother's evidence, which I accept, is that she wants to apply for guardianship of the young girl and would like to care for her until she is an adult. As already indicated, there is clearly a strong attachment which was formed shortly after the young girl's birth. In these circumstances, I consider that it is in the public interest for the young girl to live with the foster mother whilst these proceedings are being determined.
5. I acknowledge that it would be disruptive for the young girl to be moved out of the foster mother's home again, should the Tribunal determine that the removal decision is not, at the time of the hearing, the correct and preferable decision. This could be detrimental to her welfare. However, there is a possibility that Anglicare will decide to move her out of her current placement in any event. Whilst it does not intend to do so currently, the applicant has provided evidence to the Tribunal that the cousin takes drugs in the presence of children. The young girl's biological mother and her biological grandmother have also provided evidence to this effect. Anglicare's representative, Ms Renshaw, indicated that Anglicare would consider this evidence and review the situation.

Whether a stay is necessary to secure the effectiveness of the determination

1. The Tribunal must consider whether a stay is necessary to secure the effectiveness of the determination (at final hearing). In Loveday v Commissioner for Fair Trading [2018] NSWCATAD 80 at [8], the Tribunal, constituted by Deputy President Hennessy, said: "the words 'to secure the effectiveness of the hearing' include a situation where the applicant will suffer irreparable loss in the sense that no recompense for it can be obtained if the application is ultimately successful: Re Pelling and Secretary, Department of Aviation [1984] AATA 179; (1984) 5 ALD 638 at 639. It is not confined to the situation where a hearing would be pointless because the applicant will go out of business if a stay is refused."
2. Deputy President Hennessy continued (at [18]): "the phrase 'to secure the effectiveness of the determination' includes taking into account circumstances where the applicant is likely to suffer irreparable harm in the sense that no recompense for it can be obtained even if the application for review is successful."
3. I am satisfied that a stay is appropriate to secure the effectiveness of the determination. If the young girl lives with other carers until the application is determined, her interests in being in a stable placement may mean that, by the time of a final hearing, it is not in her interests to affirm the respondent's decision, even if the Tribunal is of the view that that decision was not, at the time it was made, the correct and preferable decision. The Tribunal would have to have regard to the harm caused to the young girl in removing her from a placement in which she may, by that time, be settled. This could cause irreparable loss or harm to the applicant, as she could lose care of the child long term.
4. It is appropriate to keep in mind the common law principles in relation to the exercise of interlocutory injunctions: AHJ v NSW Trustee and Guardian [2011] NSWADT 311 at [14] and Ye v Commissioner for Fair Trading; Ucer Investments and Resources Management Pty Ltd v Commissioner for Fair Trading [2016] NSWCATAD 147 at [32]. I consider that the applicant has established a prima facie case, in that if the evidence remains as it is, it is likely she will be successful in her substantive application. Secondly, if a stay is not granted, she is likely to suffer irreparable harm.
5. The grant of a stay is also consistent with the principle that "the safety, welfare and well-being of the child or young person are paramount": Care Act, s 9(1), for reasons given above.

Order requiring the respondent to arrange for the return of the young girl to the applicant's care

1. I considered whether the Tribunal has the power to order a designated agency to make arrangements to return a child to the care of an applicant in DHJ v Secretary, Department of Family and Community Services [2018] NSWCATAD 45, in circumstances where an application for a stay of a decision to remove a child from the applicant's care has been successful. I said the following (at [60]): "The Tribunal has powers to make such orders 'staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application' (Administrative Decisions Review Act, s 60(2), emphasis added). An order requiring the respondent to arrange for the return of the child to the applicant is an order "affecting the operation of the decision" to remove the child from the applicant's care. It requires the respondent to arrange for the return to the (previously existing) status quo. I am satisfied that it is an order which I have power to make under s 60(2) and I am also satisfied that it is an appropriate order to secure the effectiveness of the determination of the application, for reasons given above."
2. For the reasons given in that case, I am satisfied that I have power to make an order requiring Anglicare to arrange for the return of the child to the applicant. I am also satisfied that this is the appropriate order to make, to give effect to my order granting the application for a stay.

Orders

1. I make the following orders: 1. The Tribunal determines to deal with the application for review of the decision to remove a child from the applicant's care, even though the applicant has not duly applied for internal review of that decision. 2. The applicant's application for a stay is granted. 3. The respondent is to arrange for the return of the child the subject of these proceedings to the applicant by 5pm on two business days after the date of this decision - i.e. Tuesday 2 September 2018. 4. The proceedings are listed for directions at 10.30am on 13 September 2018 at Level 10, John Maddison Tower, 86-90 Goulburn Street Sydney. The parties may appear by telephone if they choose to do so and notify the Tribunal of this in advance of the directions hearing.

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 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: 31 August 2018