Before outlining the relevant facts, it is necessary to set out in summary terms, some background in which this application arises, including the family structure and the history of care. Several disturbing reports concerning the children in the care of the Applicant have not been set out here because they are not relevant to the present application. Those reports, in general, concern conduct of the children and not the Applicant and as such I have not given those matters any weight in my consideration.
Child 1 and 2 are brother and sister. They have a number of siblings. Of particular relevance is their older sister, who I refer to in these reasons as Sister. Additionally, there are eight older half-siblings, most of whom are now adults, though some of the older half-siblings have contextual relevance to the present application.
Half-sister 2 (then aged 7), Half-sister 3 (then aged 4) and the Sister (then aged 2) were removed from their biological parents in late 2013.
Child 1 was born in the second half of 2014. He was removed from his biological parents two days after birth and placed in the care of the Department of Communities and Justice (DCJ).
In October 2014, the Minister was given parental responsibility over Half-sister 2, Half-sister 3 and Sister. By this date, Child 1 was already placed in the care of the DCJ.
Between late 2014 and mid-2015, two of Child1 and 2's older half-siblings, who I refer to as Half-sister 2, and Half-brother, were placed in the care of the Applicant.
In June 2015, Half-sister 2 made allegations against the Applicant concerning physical assaults and excessive discipline concerning Half-sister 2, Half-sister 3 and Half-brother. In the same set of reported allegations, Half-brother alleged that the Applicant had verbally abused him. The matter was investigated and the allegations were determined to be false with regard to the allegations of assault and otherwise not sustained. The specifics of the allegations made by Half-sister 2 in 2015 are not consistent with the allegations she later made, in 2023, concerning her treatment and the treatment of Half-sister 3 and Sister at the hands of the Applicant. The Applicant stated in her written submissions that Half-sister 2 has been diagnosed with a personality disorder, post-traumatic stress disorder and suffers from some mental illness. While none of those matters lead inevitably to a conclusion that Half-sister 2 has or is likely to give a false account, the impairment that can arise from those conditions may explain, in part, why some of the allegations she has made are not capable of being sustained or have been determined to be false by the DCJ or other designated agencies.
There is some dispute in the documents tendered at the hearing about precisely when Child 1 was placed in the care of the Applicant, joining Half-sister 2 and Half-brother. It has been reported as occurring when Child 1 was three months or nine months old. Nothing turns on this other than the fact that, since he was a baby, Child 1 has been in the care of the Applicant. The Applicant is the only long-standing parental figure he has known.
Shortly after Child 1 was placed in the Applicant's care, Half-sister 3 and Sister were also placed in the care of the Applicant. Accordingly, in mid- to late 2015, the Applicant was the authorised carer of five children: Half-sisters 2 and 3, Half-brother, Sister and Child 1. From this time there were reports of disturbing violent incidents occurring between Sister and Half-sister 3. The reports suggest, though do not directly state, that those violent incidents occurred as a result of the trauma the children had endured prior to being placed in care and from various development disorders and psychological conditions they had been diagnosed as having.
In March 2016, the care arrangement for the older children in the Applicant's care, Half-sister 2 and Half-brother, broke down. Half-sister 2 was moved to another carer and in the following 18 months, Half-brother also left the Applicant's care.
Between March 2016 and April 2021, the Applicant was the authorised carer of Half-sister 3, Sister and Child 1. In that period, there were child protection reports made concerning the Applicant and Half-sister 3. According to the Transition Assessment tendered by the Applicant, there were two reported incidents.
1. The first reported incident was in 2016, where Half-sister 3 was found to have fingerprint bruising on her arms; the Applicant is reported to have explained that these bruises were caused while holding Half-sister 3 through a "wild and intense meltdown".
2. The second reported incident was in 2019, where Half-sister 3 was reported to have been observed locked out of the home while the Applicant was inside; the Applicant is reported to have explained that this was action taken as part of a safety plan developed by the agency then responsible, where, if Half-sister 3 became unsafe or aggressive, the Applicant was to place herself on the other side of a locked door until the situation became safe again.
According to the summary in the transition report there were further incidents that were not substantiated (though which parts were not substantiated is not clear) which are relevant to the present application:
1. In early 2020, police and ambulance were called to the Applicant's home arising from an incident where Sister, then aged about 7, was threatening family members "with glass". Another report states that this was a shard glass. There was also an unsubstantiated report that Half-sister 3 and Sister were "witnessed in the park at 9:30 PM with other children who have a known child protection history" and that they were inadequately supervised.
2. In August 2020, there was an unsubstantiated report of Half-sister 3 threatening Sister with a knife and of locking Half-sister 3 in her room and scratching her face in the process.
3. In October 2000, Sister described the Applicant "getting angry and breaking something and squeezing her arm or pressing her pressure points if she was in trouble".
In relation to all of the incidents described at paragraphs 42 and 43 above, the transition report concluded:
"These carer reviews and community services reports were read and considered throughout the assessment process for [the Applicant]'s transfer application. They were considered in the context of this assessor's observations of [the Applicant] with the children, the children's reports of their experience with [the Applicant] and [the Applicant]'s reflections of the challenging periods she has experienced as a foster carer. [The Applicant] was open in discussing these reports and previous observations of her as a carer and has acknowledged she had times where she would have liked to have been able to better support all of the children's needs, though she was stretched to capacity as a single carer with five children in her care. She denies ever being physically or emotionally abusive or neglectful to the children and states her motivation has always been to support the children's physical and emotional safety."
In April 2021, Half-sister 3, then aged about 11, left the care of the Applicant. It appeared uncontroversial between the parties that the care relationship between the Applicant and Half-sister 3 had broken down around this time and that the Applicant was not able to manage or provide appropriate care to Half-sister 3. The Applicant informed the Tribunal that she was unable to look after Half-sister 3 as she was a child with complex needs, also significant self-regulation problems resulting in outbursts of excessive violence and aggression. While the Respondent did not dispute these matters, I note that it was not involved in the care of Half-sister 3 and accordingly its knowledge concerning Half-sister 3 is limited to more recent contact and events.
Child 2 is the sister of Child 1 and Sister. Child 2 was removed from her biological parents at birth. She was originally placed in the care of Half-sister 1, the eldest female half-sibling of Child 1 and 2. However, it seems that placement ended when it was discovered that Half-sister 1 had placed Child 2 at significant risk of harm. Child 2 was removed at 11 months of age, by the DCJ and placed with different authorised carers.
It appears that at some date before February 2023, the Applicant discovered that Child 2 was Child 1 and Sister's sibling. In summary, the Applicant took steps to have Child 2 placed in her care.
In February 2023, the Respondent was engaged as the agency through which the Applicant was to provide foster care to Sister and Child 1. This was done to facilitate the placement of Child 2 with the Applicant and allow the siblings to live together in the same home.
In about March 2023, Child 2, then nearly two years old, was placed in the Applicant's care. In the written outline dated 29 April 2024, the Respondent stated that:
"The placement was relatively settled with minimal issues, and during this time [i.e. After March 2023 until October 2023] the agency focused on building a relationship with [the Applicant] and the children."
The Applicant states that from shortly after the placement of Child 2 in her care, in April 2023, Sister became physically abusive towards the Applicant. I do not need to make any finding about this; the fact of the matter was that from at least about September or October 2023, the Applicant reported that Sister, then aged about 12 and attending the final year of primary school, the Applicant was struggling to care for, and meet the needs of, Sister while also caring for Child 1 and Child 2.
[2]
What happened
By late 2023, Sister had been in the Applicant's care for several years. In September 2023, Sister apparently assaulted the Applicant and the police were called to the home. The Applicant reported that Sister had first assaulted her while the Applicant was holding Child 2, that Child 1 had then executed a safety plan which involved Child 1 taking Child 2, strapping Child 2 into her stroller and waiting outside the house until the situation calmed down or the Applicant collected them. The Applicant then reported that Sister threw a heavy object into the Applicant's face and provided photographs of her blackened and swollen eye which she said arose from that incident. The police issued Sister with an apprehended violence order after attending the home.
By October 2023, the Applicant reported to the Respondent that Sister was stealing her possessions and appeared to be engaging in shoplifting, was disappearing from the home at night, was burning objects and was sometimes aggressive and threatening towards her. It was also around this critical time of year for Sister that the Applicant, Sister, Child 1 and Child 2 moved house. It is not clear why this occurred or whether there were any additional supports put in place during the house move. Apparently there was no connection made between the stress of moving house at a triggering time of year and these challenging behaviours.
Also in October 2023, Child 1 and Sister met their biological parents in an unplanned and unintended visit. It occurred when Child 2 was having a contact visit with the biological parents of all three children at a public park that was divided by bushes. Child 1 and Sister were to have been playing on the other side of the park during the visit but, accidentally, Child 1 ran through the bushes and interrupted the contact visit the biological parents were attending with Child 2. Child 1 and Sister were then introduced to their biological parents for the first time, having not seen either since their removal as infants. Apparently, this unexpected contact resulted in no obvious harm to Sister or Child 1. It is also of note that the incidents which are described above occurred at time of the year which Sister was known to struggle with as a result of past trauma.
On 27 October 2023, the Applicant sent a text message to the case worker from the Respondent with day to day responsibility for the placement. The text message said "Awww the joys of teen parenting" and showed a note, apparently written by Sister that had a hand drawn emoji with dead eyes and which stated:
"I do not like FUCK you I wish you were DEAD.
Something very bad is DIE going to happen to you ○○○○○"
This prompted a response from the case work to try and arrange some mental health resources for Sister. But these do not appear to have been able to be implemented at any speed. I note that there was no suggestion at the time of the Respondent providing any additional support or assistance to the Applicant despite the fact that she, as sole carer, had been threatened. Some consideration of supports to be provided to the Applicant was made in the Alternative Assessment, however. I observe this in the context of ensuring that the safety and well-being of the children under the Applicant's care would surely be impacted by the Applicant's own sense of personal safety.
In November 2023, Sister reported to her case worker employed by the Respondent that the Applicant had yelled at her about not washing up dishes at the end of the evening meal and had followed Sister into her bedroom, pulled her by the arm off the bed, causing Sister to fall on the floor, had pulled Sister's hair. It is not clear what then occurred since the reports provided by Sister are not consistent, however in one of Sister's accounts, she stated that the Applicant pressed her thumb into the back of Sister's neck, Sister also reported that the Applicant had taken Sister's bedding and thrown it outside. Arising from this incident, Sister asked to be placed, and in fact was so placed, with a family of a friend from school. Sister has not returned to the Applicant's care.
The Respondent's casework sent a text message to the Applicant to let her know where Sister would be staying and that there had been a report of a physical argument. The Applicant responded in the following terms by text message:
"Oh, for crying out loud [caseworker], Yeah, if you call pulling her doona off her and telling her to get up getting physical! Honestly. I have had about as much as I can tolerate of [Sister]'s manipulative behaviour over the last few months. And she's twice as bad around [Sister's friend from school]."
The Respondent is a body that is mandated to make reports where it holds reasonable grounds to suspect that a child is at risk of significant harm for the purposes of the Children and Young Persons (Care and Protection) Act 1998 (NSW), s 27. Accordingly, on about 16 November 2023, the Respondent created an incident report that was provided, together with an eReport, to the Department of Communities and Justice (DCJ). The incident report was prepared after Sister was interviewed on about 15 November 2023.
In its written submission, the Respondent informed the Tribunal that, as part of its investigation process, it had also sought disclosures from the agencies that formerly managed the foster placement of Sister, Child 1 and Child 2. That information request is facilitated pursuant to the Childrens and Young Persons (Care and Protection) Act, Ch 16A.
The incident report summarised the risk as "Extreme Risk" and referred to the following incident types:
"Disclosure of Harm - Harm By Carer , Violent Behaviour by Carer,
Potential Reportable Conduct- Neglect,
Potential Reportable Conduct - Psychological Harm Physical Aggression by Carer,
Unauthorised Use of Restricted Practice - Restricted Access,
Emotional Distress, Verbal Aggression by Carer"
The incident report states that Sister reported to the case worker that Child 1 and Child 2 were "in the lounge" while the Applicant and Sister were engaged in their argument in Sister's bedroom and while the Applicant took Sister's bedclothes and threw them outside the house. Sister reported that:
"- [Child 1] was also crying cos he had an argument with mum [ie the Applicant] and she was yelling at him last night too
- [Child 1] came into my room this morning which he never does and was sort of mumbling and saying he was upset about mum yelling at him "
The incident report also referred to instances where the Applicant pushed Sister out of the way and one incident where she was kicked in the stomach. Sister also disclosed that she had slept in a swag next to the caravan where the Applicant, Sister and Child 1 and 2 were staying for an extended trip in a very cold area. That trip had been known to the Respondent and was to support a sporting interest of Sister and Child 1. There was obvious concern that Sister was sleeping out of doors for any period in cold and rugged conditions.
Under the heading "reflective practice" in the incident form, the Respondent's staff noted:
"WCF have been working with the Carer [ie the Applicant] to be able to manage and implement appropriate responses to the children that enhances their safety and wellbeing. There are ongoing concerns about the capacity of the carer to implement appropriate reactions and strategies to [Sister] when she [that is, Sister] is in a heightened state. There are historical concerns around excessive punishment from the Carer towards [Sister]'s older siblings when they lived with the carer and were under the management of another foster agency […]. There are concerns about accumulative ongoing psychological harm and the impact it has on [Sister] and her younger siblings.
Conversations about is the placement appropriate for the children's needs and development."
The incident report was signed off by various members of the Respondent's staff. At the end of the document the following additional comments were made:
"-continuous accumulative psychological where the carer behaviours are persistent and have a negative impact on [Sister's] social needs, self-worth and self-esteem -not adequately meeting [Sister's] needs
There are emotional and psychological concerns for [Child 2] and [Child 1] due to them experiencing and witnessing incidence between [Sister] and the carer"
The eReport contained much of the same information but summarised the Respondent's concerns in this way:
"Excessive discipline
Restricting access to phone
Inadequate supervision
Not meeting [Sister's] needs
Psychological harm
Hostility in the home
Carer behaviours are persistent and have a negative impact on [Sister]'s social needs, self-worth and self-esteem
There are emotional and psychological concerns for [Child 2] and [Child 1] due to them experiencing and witnessing incidents between [Sister] and the carer"
The DCJ conducted an Alternative Assessment after the incident. This is a process described in the DCJ's Practice Guidance, in the following terms:
"Alternate Assessment, Carer Review and Reportable Conduct Alternate Assessment
Alternate Assessment is the assessment framework the Department use to assess a child protection report* about the care and supervision of a child in OOHC.**
DCJ practitioners use Alternate Assessment to assess the child's immediate safety, including if there is a need for protective action.
Alternate Assessment considers a range of factors including:
● the child's vulnerability to harm
● the carer's response to the allegations and capacity to provide care, and
● the support available to the carer and protective factors contributing to the child's safety.
To complete the Alternate Assessment, the Department:
● speaks with the child,
● their carers and all other members of their household, including other children gathers information from other relevant people important to the child or who may have observed the alleged harm or risks.
The Alternate Assessment is finalised within 30 days of the first assessment visit with the child and carer.
At the finalisation of the Alternate Assessment***, the Department makes a separate Judgement and Outcomes decision. This includes:
● a determination as to whether the child protection concerns are substantiated (section 23) [Children and Young Persons (Care and Protection) Act)]
● whether the child is assessed as being in need of care and protection (section 34) [Children and Young Persons (Care and Protection) Act)]
● the identification of any person determined to have caused harm to the child (PCH).
(* All child protection reports concerning a child in OOHC that meet the ROSH [Report of Significant Harm] threshold, receive a statutory response by the Department, and Alternate Assessment. Some non-ROSH reports may also receive an Alternate Assessment, especially if there are multiple non-ROSH reports to assess cumulative harm. ** The Alternate Assessment is used when a report is received about a child in statutory OOHC under the parental responsibility of the Minister or care responsibility of the Secretary. *** The Judgement and Outcomes report is not part of the Alternate Assessment.)"
A case worker from the Respondent and a caseworker from the DCJ interviewed Sister, Child 1 and the Applicant about the allegations made by Sister in separate sessions between 12 and 13 December 2023. The Respondent and DCJ staff prepared file notes of each interview and these were before the Tribunal. In summary the interviews, as recorded, included the following:
1. Sister stated that:
1. she was not worried about the safety of Child 2 and Child 1 because the Applicant's actions that she complained of only happened to older children. Sister specifically stated that it has occurred to Sister 2 and Sister 3 when they were older.
2. The Applicant screamed at Child 1 on the last night Sister stayed at the Applicant's home and that she had seen the Applicant pull Child 1 when he is disobedient and that Child 1 has stated "Oh my god, you really do hurt people."
3. Sister, a child in year 6 at the time, said she could not think of anything she liked about the Applicant and that her list of dislikes of the Applicant extended to the following: "physically hurts me", "Screams at me" "can't go out with my friends", "she is super strict".
1. Child 1, who refers to the Applicant exclusively as "Mum":
1. reportedly said the following things in response to questions:
"Q: What do you like about mum
A: she bought me a computer
…
Q: What else do you like about mum
A: she is really easy to talk to, I can talk to her about anything
Q: So if something happened to you at school say, who would you talk to
A: I'd go straight to Mum."
1. told the case workers that there was nothing he disliked about Sister, that she was "perfect" and that he wanted her to move back into the home where he was living and that he was worried about her not returning home,
2. that there were not many rules in the house, that he did some chores on a random basis. That Sister did have chores involving doing the dishes,
3. stated, emphatically, that there was no discipline,
4. when asked about the incident that gave rise to the report, Child 1 responded to the following questions and with these answers;
"Q: What would you say if you told me about the argument between [Sister] and Mum? Who was angry?
A: [Sister] and Mum. Well, not really Mum, [Sister] was.
Q: What did you see?
A: I didn't see anything really, I was in my room. I was upstairs I had my door shut."
1. said he was upset about Sister leaving but that he never went to her room upset the morning after the argument,
2. gave the following answers about the Applicant's conduct;
"Q: Has there ever been a time when Mum has been physical?
A: Never ever! (very emphasised)
Q: Has she every put her hands on you?
A: NO (very emphasised, Child 1 started to become a little agitated, this could be identified by the tone of his voice)
Q: Have you ever felt scared?
A: Never felt scared. No - its never happened, never happened (shaking his head). Except when she was putting [Sister] on the front porch and I was scared when the cops came to the house.
Q: Tell me what happened
A: I was in my room when the cops came, they were removing her from the house and getting her out."
1. told the case workers that he objected to them speaking to the Applicant without him being present, as the following partial exchange shows. His distress only abated when he was assured that the caseworkers were not going to interview Sister and the Applicant that day;
Q "Do you have any worries about us speaking to Mum?
A: Worried a bit, definitely!"
Q: Why are you worried?
A: That you are twisting my words, like turn them around to the opposite.
[after Child 1 became very upset and raised his voice, expressed tears]
A: well if you're going to talk to my mum I want to be there
A: I want to be there!
A: I don't want you talking about stuff when I'm not there
Q: [Child 1], you seem scared, what are you scared about?
A: twisting words that I didn't say"
1. The Applicant told the case workers from the Respondent and the DCJ that, in response to two separate incidents, being the incident when she was hit in the face and an incident when they were living remotely, that she had pressed on a part of Sister's shoulders or upper body as a means of removing Sister from the house (or place where they were staying) when Sister had become aggressive towards the Applicant or Child 2. The Applicant reported (in summary terms) that the objective was to move Sister out of the house when applying this physical force. The Applicant accepted that the use of pressure points was a form of excessive physical discipline but stated, in relation to one incident that she had to act in the manner to get Sister out of the house away from Child 2. She denied using pressure points on the child's body as an aggressor, stating that she felt she had no choice to use this method of physical control in circumstances of self-defence or to protect Child 1 and Child 2.
2. The Applicant, in her statement to the Tribunal, set that the DCJ and Respondent caseworkers interviewed her for about two and half hours and put a number of other serious allegations of excessive discipline and abuse to her. Those allegations are not recorded in the incident or interview notes.
3. In her statement to the Tribunal in support of the application for interim orders, the Applicant admits there was an argument but denies using physical force against Sister during the incident of November 2023. She admits that, after asking Sister to undertake her chore of unstacking the dishwasher, and this request being ignored, she approached Sister when Child 1 and Child 2 had gone to bed. She says she threw the doona off Sister (i.e did not take it outside) and told Sister to unpack the dishwasher. This, according to the Applicant, was productive of verbal abuse from Sister. The Applicant states that the next morning, Sister told Child 1 that the Applicant had hurt her.
In accordance with the Practice Guideline the respondent was required to complete a Carer Review, after the Alternative Assessment process. It appears that, in the course of the Carer Review, the Respondent made the decision prefer the Tribunal.
On 19 February 2024, the DCJ completed its Alternative Assessment and made a series of recommendations to the Respondent. The outcome of the Alternative Assessment is summarised in two paragraphs at the commencement of the recommendation letter:
"An alternate assessment on [Sister], [Child 1] and [Child 2] has been completed by the .. DCJ. In relation to the abuse in care allegations made about [the Applicant]. The assessment outcome is safe at this time as there is insufficient evidence to suggest the Applicant is using any physical discipline on [Child 2] or [Child 1]. The assessment outcome is safe for [Sister] as she was in a new authorised placement before DCJ conducted their assessment and neither [Sister] nor [the Applicant] and neither … has any intention of [Sister] returning to placement.
The risk of harm is high for [Child 1] and [Child 2] in their placement with [the Applicant] as there appears to be a pattern for the children in her care reaching pre-teen age and being at significant risk of harm due to [the Applicant]'s excessive disciple and physical abuse. Should [Sister] return to [the Applicant]'s home she would be at risk of harm and another assessment would need to be conducted as it is likely the assessment would result in safe with plan or unsafe.
The Alternative Assessment then set out twelve recommendations around obtaining information from the previous agencies, assessing the Applicant's mental fitness and training, managing sibling relationships and consideration of a long-term sibling placement in circumstances where the Applicant is not able to care for the children and counselling services for Child 1, Sister and the Applicant.
The Alternative Assessment recommendations letter concluded by stating that the assessment would remain open for a month
"to ensure [the Applicant] engages and to complete any tasks that [the Respondent] need support with. If [the Applicant] does not make herself available or declines the recommendations above, DCJ will hold significant concerns for the long term stability of this placement.
The Applicant submitted that she was not told of the outcome of the Alternative Assessment until mid-March; several weeks after this recommendation letter, nor was she told of the extent of the recommendations made. She stated to the Tribunal that the only request that had been made of her was to authorised access to her counsellor.
The Respondent tendered two emails from mid-March 2024 concerning information it had received from Half-sister 2 and Half-sister 3 regarding their treatment by the Applicant and their concerns for Child 1 and Child 2.
1. In the email dated 14 March, DCJ Triage Caseworker advised the Respondent's caseworker that the DCJ had received a Report of Significant Harm from Half-sister 3 regarding Child 1 and Child 2. The report did not concern any conduct of the Applicant in relation to Child 1 and Child 2. Rather, this report contained an account from Sister 3 of being pushed by the Applicant, on another occasion of being made to "sand about 10 timber tables by hand because we had people coming over" and of being locked out of the house, on another occasion of being locked out of the house where she had lived with the Applicant "for about a week" and, on yet another occasion of being locked out of the house when it was cold "for some time". The Applicant, in submissions pointed out that this was a fantastical account - the Applicant said she never owned ten tables and that they were living in a place where her neighbours would have immediately noticed a child being left outside for days on end. To some extent, I agree with that submission.
2. In the email dated 15 March, a staff member of the Respondent reported to the Respondent's casework that she had spoken to Half-sister 2 via a video link and that Half-sister 2, who was at the time in hospital about to give birth to her own child, stated that she had been abused by the Applicant and that she was worried about Child 1 and Child 2 and did not want her siblings in the care of the Applicant. There were no specifics and there was no indication that Half-sister 2 had had any recent contact with Child 1 and Child 2, indeed, that is one of the several minor complaints the Respondent makes about the Applicant's conduct.
It was about this time that the Applicant, having spoken with Child 1, formed the view that he wanted to go and live with Sister. Accordingly to the Applicant, acting on this information, she decided that she did not want to continue to be a foster carer for either Child 1 or Child 2 as she believed that the siblings should live together if at all possible. The Applicant sent an email on 20 March 2024 which stated:
"I have made the heart-breaking decision to resign from foster caring. The conduct of this recent DCJ investigation has been shameful and I've reached my limit of being part of this shitty broken system.
The Applicant then sets out her complaints regarding the Respondent's acceptance of Sister's account of what occurred and the lack of fairness in the Alternative Assessment process. She then stated:
I think my own sadness is going to be too overwhelming in the coming weeks for me to parent sufficiently but I will keep you posted on that. I intend to try because I know how much [Child 1] and [Child 2] will be if we can transition them properly.
The Applicant then asked to have a counsellor arranged to help Child 1 and provided the details of her counsellor in conformity with the recommendations from the Alternative Assessment.
The Respondent "accepted" the Applicant's resignation as a carer six hours later.
Two days later, one of the Respondent's caseworkers spoke to Child 1 on the telephone to tell him about the resignation of the Applicant and his moving to new care. From the file note prepared by the Respondent, Child 1's concerns were whether he would be able to stay with Sister and Child 2, continue in his current school and stay in the local area. While the Respondent's caseworker acknowledged these queries as important, there was no actual information provided to Child 1 about what was to occur. Instead, and this is understandable given the recency of the Applicant's resignation, Child 1 was told that the Respondent "would try to make that possible if we can".
Over the following days, there were a series of increasingly terse text messages between the Applicant and the Respondent's caseworkers.
In a telephone call on 28 March 2024, the Applicant retracted her resignation as a carer, explaining that she had resigned because she believed Sister had been encouraging Child 1 to move and that they would be accommodated together with Child 2. Pausing there, the Applicant's explanation on 28 March is not consistent with her email of 20 March 2024. The Respondent's case workers appear to have noted that inconsistency and determined that the Applicant was not scapegoating or blaming Child 1, however there is no indication that they considered that the Applicant had been expressing those motivations to Child 1.
On 11 April 2024, being the last day of term one for school, Child 1 and Child 2 were removed from the care of the Applicant. According to the Respondent, Child 1 was collected directly from school that day and Child 2 was collected from the Applicant's home. The children were given a "social story" which stated that, in part, that they were having time away from the Applicant so that some worries could be sorted out. At the date of the hearing for interim orders, both children had been living away from the Applicant for approximately three weeks.
I was informed that term two of the school year commenced on the day of the hearing. The Respondent informed the Tribunal that it had taken steps to obtain work books for Child 1 who is now being home-schooled. I have presumed the home schooling arrangement is in place as a temporary measure. Indeed, Child 1 has experienced homeschooling in a less dramatic context in 2021 when the Children 1 and 2 and Sister, stayed at a remote location to participate in a specific winter sport program at which Child 1 and Sister excel. The Applicant and Child 2 resided with Child 1 and Sister at the remote location throughout that period. I was also informed by the Applicant that, in addition to the winter sport, Child 1 plays in a team sport at high-performance level and that his involvement in that sport is very important to Child 1. I was informed, that if Child 1 continues not to attend practice, he will be asked to leave that team. In oral submissions, Mr Ryan, who appeared for the Respondent, acknowledged that any movement of a child from care will commonly and unavoidably involve the severing of social supports arising from education and sporting activities.
On 8 April 2024, the Respondent conducted a complex case review. The concerns recorded in that review are nuanced. However, of concern are the following conclusions:
1. "warmth in the home is lacking" - this is entirely contrary to other aspects of the report, including the manner in which Child 2 interacts with the Applicant and the later observed behaviour of Child 1.
2. "worry about pattern when children become adolescents, [the Applicant] appears to not be able to cope well and displays concerning behaviour" - while this concern may be entirely justified, there is a significant question about whether this impacts, currently, on the children currently under the Applicant's care:
1. Child 1 is about nine years old and attends primary school, he has some developmental and other health conditions which appear to have been appropriately managed by his doctors, the Applicant and those with supervision over him. But for the reports provided by Sister in December 2023, there is no history of Child 1 being directly harmed or mistreated by the Applicant. As noted above, he expressly denies ever being mistreated.
2. Similarly, Child 2 is now three years old and attends day care on some days. She is the younger sister of Child 1. Child 2 was taken from her biological parents at birth for has also been in the Applicant's care since shortly after her birth. There is no history of Child 2 being directly harmed or mistreated by the Applicant.
1. that the Applicant resigned, then retracted her resignation and "blamed" Child 1 for this - there is no evidence of any blaming behaviours.
2. the placement of Child 1 and Child 2 was "to ensure the children's safety and the integrity of the investigation" - there is no evidence on which that conclusion appears to have been based, nor is it clear what is to be involved in the investigation that requires the removal.
3. that the DCJ is to be advised of the outcome of the complex case review and that the children are to be moved due to safety concerns - there is no evidence on which the concerns for the children's safety appears to be based aside from the material already considered in the Alternative Assessment and the letter of resignation from the Applicant in which she states she is overwhelmed by sadness to effectively parent.
From their removal from the Applicant's care on 11 April 2024 the children, who are siblings, have been placed in the care of other authorised carers. The Applicant informed me at the hearing that there has been more than one respite placement since the date of their removal. There is no evidence that there has been more than one respite care placement at this stage.
On about 18 April 2024, the Applicant has visited Child 1 and Child 2 while they are in respite care. The visit took place at a public park. The Applicant was accompanied by her sister. The Respondent's report of the visit demonstrates the extent of the mutual attachment the Applicant and Child 1 and Child 2 have for each other. The note of the visit reported Child 1's distress at the visit ending in the following terms:
When we go to the car [Child 1] refused to get in, [Child 1] became upset and in a heightened state and would say things like 'nope, I am not going with you', 'you tricked me last time', 'you can't make me', CW [caseworker] was understanding and asked [the Applicant] to encourage [Child 1] that its time to go and '[the Applicant] said in front of [Child 1] that she was not going to force him to do something he doesn't want to do. [The Applicant] asked if she could do a lap around the oval we were parked in front of to some breathing with him … [the Applicant] appeared to be encouraging and supporting [Child 1]'s emotions when close to CW by saying words to the effect 'I know you don't want to go but I will see you next week' and '[Sister] is waiting to see you'.
The report then goes on to state that Child 1 became so distressed that he managed to get into the front seat of the Applicant's car and refused to leave it for 10 minutes only coming out when he was assured that the Applicant would return to visit him in the coming days. The distress of Child 1 required the caseworker to seek telephone advice from her superiors and required the Applicant's sister to provide some supervision of the children. After two hours of this, the visit finally ended and the children were taken to visit Sister.
The Applicant visited Child 1 and Child 2 a second time on 23 April 2024. This time the visit took place at a public library and a cafe. The Respondent's case notes show that Child 2 was asking "where Mummy was" on the way to the visit. At the visit, the Applicant appeared to have a private conversation with Child 1 in which she provided him with a charter of rights document, a set of phone numbers and his mobile phone. Child 1 complained that he had not been allowed to telephone his siblings, he also stated "Oh good, I have the right to complain" to which the Applicant responded "That's right, you absolutely have the right to complaint". In the course of the visit, the Applicant noted that Child 1 should eat before taking his medications which suppress his appetite, queried why he was taking a full dose on a weekend day and she also noticed that she could see a grommet coming out of Child 2's ear. The visit ended without incident - Child 1 and Child 2 were taken to a games arcade. From the Respondent's report, the Applicant's behaviour toward the children was exemplary.
[3]
Consideration
In considering above, I am mindful that the parties have not been given a proper opportunity to present their evidence and submissions and that I have not made any conclusive findings about the ultimate facts in these proceedings. I am also mindful that a party in the position of the Respondent should not be deterred from taking reasonable and necessary steps to protect the safety and well-being of children in out of home care. The matter is listed for directions on 9 May 2024 at which time the parties will be at liberty to seek an appropriate timetable to bring the matter to finalisation. The Applicant denies many of the key allegations made against her and there will need to be a full evaluation of the alleged breaches and the evidence at hearing. This is not assisted by the absence of adequate reasons by the Respondent.
In making any order, the paramount consideration for the Tribunal, as it is for the parties, is the safety, welfare and well-being of the children involved; Children and Young Persons (Care and Protection) Act, s 9(1). Accordingly, I have decided that conditions will need to be imposed to regulate the parties in the period while the interim orders are in effect. These matters are also directly relevant to the question of whether it is desirable for the Tribunal to make interim orders: Administrative Decisions Review Act, s 60.
[4]
Safety of the children
The Alternative Assessment determined that "the assessment outcome is safe at this time as there is insufficient evidence to suggest the Applicant is using any physical discipline on [Child 2] or [Child 1]". It does not appear that there is any evidence that, since the Alternative Assessment was made, the safety of the children has changed.
The Applicant has been a foster carer for Child 1 and Child 2 since their infancy. As a foster carer, she has been required to be scrutinised and monitored to ensure the safety, welfare and well-being of the children in her care. Despite some concerns, she has nonetheless continued to be a carer for the same children, from the same family for nearly a decade. The reports of excessive discipline have been previously investigated and have been found to be false or unsubstantiated. This does not mean that children have made false allegations, but it does mean that the agencies who are charged with ensuring the safe care of foster children have been satisfied that it is safe for the Applicant to continue to take care of children.
[5]
Children's welfare
There were no allegations that the children's physical needs are not met by the Applicant. They are housed in clean and reasonable accommodation, schooled, fed, their health needs were attended to with precision and their interests were supported.
Child 1's other priorities, of a stable school, sporting and social life are very likely to be impacted by a change in his accommodation. At hearing, the Respondent conceded this, see paragraph 82 above, however it was suggested that these matters were of less importance than his safety. Obviously the safety of a child is paramount, but where there is some doubt that the placement is, in fact, unsafe, then the issues of dislocation of a child who is deeply involved in his school, social and sporting network takes on greater significance.
The notes report that children appear to be settled in their respite accommodation. However, it is not at all clear that settled behaviour leads inevitably to a conclusion that they are happy with the arrangement. It is equally clear from the notes that Child 1 is very distressed about being removed from the Applicant and he has been told that the respite accommodation is temporary with the clear expectation in the social story document that he will be returning to the Applicant.
[6]
Children's well-being
Child 1, as a nine year old, has very clear views that he wishes to live with the Applicant if he is unable to live with Sister and Child 2 together. While the wishes of a child are important, they are not determinative.
Child 1 and Child 2 are emotionally attached to the Applicant, who they refer to exclusively as "Mum" and appear to respond to positively to her. With an indeterminate period before any finalisation of the review processes available to the Applicant arising from the care decisions of the Respondent, this attachment may reduce and thus the interests of the Applicant are at stake if orders are not made to return the children to her care. Accordingly, it is clear that making orders to return Child 1 and Child 2 to the care of the Applicant is appropriate to secure the effectiveness of the determination of the application for review.
[7]
Public interest considerations
While neither party made submissions as to where the public interest lies in this case, I have had regard to the objects and principles set out in the Children and Young Persons (Care and Protection) Act, ss 8 and 9 and the following observations of Brereton J in Secretary of Family and Community Services v Allana Pearl Smith [2016] NSWSC 1384 at [30]:
"… there is considerable public interest in the welfare of children in out-of-home care'
Accordingly, I have considered there is public interest in making orders in the advancement of the welfare of the children.
[8]
Conclusion on whether desirable to make orders
Having considered the material before the Tribunal, and having considered the public interest in this case, I am not satisfied that there is a present risk to the safety, welfare and well-being of Child 1 and Child 2 by remaining in the care of the Applicant. To the contrary, and in particular in respect of Child 1, I am satisfied that his welfare and well-being are at risk if he is not returned to the Applicant pending the determination of this matter.
[9]
Are the orders necessary to secure the effectiveness of the determination?
As I have noted above, if Child 1 and Child 2 remain out of the Applicant's care until this matter is finally determined, they will have adjusted to a new placement. They are currently in a temporary placement and it is not clear where the Respondent next intends them to go. All the evidence points to the Respondent not having them returned to the Applicant. If the children are placed elsewhere, they will readjust and it may be the case that, by the time the matter is finally determined, it will not be in the best interests of the children to be returned to the Applicant - even where the Tribunal concluded that the decision under review is not the correct and preferable decision. The Tribunal, in those circumstances, would have regard to the potential harm caused to the children by moving them from another placement where they are safe, happy and settled. This would cause irreparable loss to the Applicant as it would mean she would permanently lose the care of the children: DHJ v Secretary, Department of Family and Community Services [2018] NSWCATAD 45 at [55].
[10]
Conclusion
Having heard from the parties, considered the material tendered and considered the public interest, I have concluded that it is desirable and appropriate to make an interim order to have Child 1 and Child 2 returned to the care of the Applicant. Though with some conditions to preserve the rights of the parties and to ensure the continued safety of the children. I have acceded to the Applicant's relief that the return of the children be immediate, however, I intend that the children be returned the next business day after the making of orders. The immediacy is required to allow Child 1 to return to school and sport with as little disruption as possible.
The substantive review of the matter should proceed with expedition. I note the matter is listed for directions on 9 May 2024.
I also note that, in this case, the DCJ has not been joined as a Respondent, though parental responsibility rests with the Minister. Accordingly, I will make orders that the DCJ be joined as a Respondent and notified of the next directions hearing.
Further, having regard to the fact that Child 1 and Child 2 have interests which differ from the Applicant and the Respondent in this case, and given that Child 1 in particular has expressed clear views about his care, I will order that the children be separately represented.
[11]
Orders
Accordingly, I make the following orders:
1. The application for administrative review of the respondent's decision to remove the Child 1 and Child 2 from the Applicant's care is to be dealt with by the Tribunal notwithstanding that the Applicant has not applied for an internal review of the decision.
2. The application for an interim order that the children be returned immediately to the care of the Applicant is granted, subject to the following conditions:
1. The Applicant is to follow all directions of the Respondent concerning home visits and attending on her counsellor;
2. The Applicant will strictly comply with the Carer's Code of Conduct;
3. The Applicant is not to speak disrespectfully or denigrate any family member of Child 1 and Child 2, including Half-sister 1, Half-sister 2, Half-sister 3 and Sister.
4. The Applicant will maintain prompt contact with the staff of the Respondent via telephone and text message and will ensure, as far as possible that she is contactable by the Respondent at all times;
5. The Applicant will follow the directions of the Respondent concerning facilitation of contact by Child 1 and Child 2 of Sister and their half-siblings and birth parents;
1. Child 1 and Child 2 are to be separately represented.
2. Department of Communities and Justice is joined as a Respondent.
3. Pursuant to the Civil and administrative Tribunal Act 2013 (NSW), s 64(1)(a), the publication or broadcast of the names of Child 1 or Child 2 and the Applicant is prohibited.
NOTE: A reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
NOTE: Either party are at liberty to file with the Tribunal an application for miscellaneous matters seeking to vary or revoke the interim orders.
[12]
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: 07 May 2024
Dealing with the application absent an internal review
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 it is satisfied that it is necessary for it to do so to protect the applicant's interests and the application was made within a reasonable time (Administrative Decisions Review Act, s 55(4)).
At the hearing of the interim application, it was not brought to the Tribunal's attention that, at the time the decision was made or carried out, the Applicant was given notice of the decision in writing as is required under the Administrative Decisions Review Act, s 48 and the Children and Young Persons (Care and Protection) Act, s 234. Having regard to the material before the Tribunal it does not seem that such matters were at the forefront in the minds of its staff. Though there was no suggestion in this instance that the children were removed from the Applicant under emergency powers available under the relevant legislation in appropriate circumstances.
In correspondence dated 18 April 2024, the Respondent described the decision to remove the children, and provided the following reasons for it in the following terms:
the children were moved to respite placements whilst WCF is undertaking out investigation due to safety concerns, and to allow the integrity of the investigation to be protected. You [i.e. the Applicant] were advised that this was in the best interest of the children and yourself.
The letter of 18 April 2024 did not advise the Applicant of any right of review, internal or external, of the decision to remove the children. Nonetheless, in her application to the Tribunal, the Applicant stated that she was to provide a request for internal review by 3 May 2024.
Despite the absence of reasons being provided to the Applicant, the Respondent, in its written submission, contended that:
William Campbell Foundation has considered concerns regarding the safety of [Child 1] and [Child 2] in [the Applicant]'s care. WCF have undertaken a thorough assessment prior to the decision being made to place the children in respite whilst the agency was undertaking a reportable conduct investigation and the attached documentation ahs been provided to support this decision.
In FQT v Key Assets (No 1) [2022] NSWCATAD 416, a proceeding where children had been removed by a different designated agency without notice of reasons of the decision being given, the Tribunal observed at [21]-[23] that:
The providing of reasons for decision and internal review process provides an opportunity for an agency to examine and assess all the relevant information and explain the decision.
Further, it was not suggested by the respondent that the children had been removed from the placement pursuant to any of the emergency powers which are available to them under the relevant legislation. The independent assessor report is dated over a month prior to the respondent advising the applicant that they are removing the children. In those circumstances it is peculiar and inappropriate, that an agency with case management of a matter, as sensitive as the care of children, should circumvent that process and not give to the applicant a notice of the decision in writing together with notice of her right to have the decision reviewed, as is part of the respondent's obligation under s 48 of the Administrative Decisions Review Act.
The nature of the application for interim relief
At common law, the purpose of interim relief, particularly by way of interim injunction, is to preserve the status quo of the parties pending the final determination of the matter; Australian Broadcasting Corp (ABC) v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [9]. The right to such relief lies in the need by the applicant to ensure that her rights are not practically destroyed by a continuation of the alleged breach; Lenah at [12].
The Tribunal has the power to make orders affecting or staying the decision under review: Administrative Decisions Review Act, s 60(2).
The Applicant seeks interim orders which are in the nature of re-instatement rather than stay; the children, having already been removed from the Applicant's care. In AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81, the Court of Appeal, per Campbell JA at [96]-[97], noted that the powers of the Tribunal under the Administrative Decisions Review Act, s 60(2) are wider than the power to merely grant a stay. That case concerned the reinstatement of a licence but the analysis of the text of the provision is apt in this case.
The considerations to which the Tribunal should have regard in exercising its powers under s 60(2) are set out in the Administrative Decisions Review Act, s 60(3). The operation of those provisions was considered by the Appeal Panel of this Tribunal in QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113 at [31], where the Appeal Panel set out the considerations that should be applied in considering an application, noting that such considerations can overlap or be related in a particular case:
The Tribunal recently considered the power under s 60 of the ADR Act in Loveday v Commissioner for Fair Trading [2018] NSWCATAD 80 (Loveday). In that decision it was held at [8]:
"… Section 60(2) and (3) give the Tribunal a single discretionary power to make a stay order or to refuse to make such an order taking into account all relevant considerations. Secondly, 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. …"
The relevant considerations in deciding whether to make an order under s 60(2) include:
(1) whether the order is appropriate to secure the effectiveness of the determination of the application for review: ADR Act, s 60(2);
(2) whether the order is desirable taking into account:
(a) the interests of any persons who may be affected by the determination of the application for review: ADR Act, s 60(3)(a), Loveday at [10], Re Scott and Australian Securities and Investments Commission [2009] AATA 798 (Re Scott) at [4];
(b) any submission made by or on behalf of the administrator who made the decision to which the application relates: ADR Act, s 60(3)(b), Loveday at [10], Re Scott at [4];
(c) the public interest: ADR Act, s 60(3)(c), Loveday at [10], Re Scott at [4];
(3) the applicant's prospects of success on the application for review: AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 at [129], Loveday at [10] and [11], Re Scott at [4].
As with FQT, the Applicant here has not sought internal review of the decision to remove the children on 11 April 2024. This is contrary to the general rule under the Administrative Decisions Review Act, s 55(3). Accordingly, I must consider whether the circumstances set out in the Administrative Decisions Review Act, s 55(4)(b) arise, that is: whether it is necessary to deal with the application to protect the Applicant's interests and the application was made within a reasonable time following the administratively reviewable decision.
The Applicant has applied for orders on an urgent basis and seeks interim orders to protect her interests and the interests, as she perceives them, of Child 1 and Child 2. Having regard to the material before the Tribunal, I am satisfied that is necessary to deal with the application absent an internal review because:
1. The Applicant has been the sole carer of the children since their infancy. In the case of Child 1, the Applicant has been his carer for nearly eight years. It is apparent from the Applicant's submissions and evidence, and from general human experience, that the removal of the children from her has caused immense stress and, more significantly, that the removal of the children from her care may have a detrimental impact on her relationship with them. It is also very apparent from the material supplied by the Respondent that Child 1 is highly attached to the Applicant and has expressed in manifest terms his wish to be reunited with her. Tellingly, one of the Respondent's staff sent an email to the Applicant asking that when she was to visit the children on 23 April, she was to lock herself inside her car when leaving to ensure Child 1 could not get inside. The Applicant has provided letters of support of her ability as a carer, including from a former employer who engaged her as an in-home child care worker in the last two years, as well as the Applicant's counsellor, who refers to the Applicant's grief at the possibly of having the children removed from her care. I have concluded on the basis of these facts that it is necessary deal with the application absent an internal review so to protect the Applicant's interests; and
2. The Applicant has made the application within a reasonable time having received some kind of notification on 18 April 2024 of the reasons for the Respondent's decision, by 25 April 2024 she had filed her application with the Tribunal.
Having regard to the above matters, including the absence of written reasons, the fact that the Respondent did not advise the Applicant of her rights of review, as well as having regard to the circumstances of children being removed from the care of the only parental figure they have known, the fact that it is not known yet when a final decision will be made, much less when that decision will be subject to internal or external review, I find the matter does have a degree of urgency requiring the Tribunal to deal with the application to protect the Applicant's interests.
For those reasons, I have decided to deal with the application, notwithstanding that the Applicant failed to apply for an internal review.
Accordingly, in considering the factual findings made below and the submissions of the parties, it is with those principles that the Tribunal must engage.
Further, I note that the application and its hearing concerned an interim - not a final - determination. The intent of an interim order is to preserve the interests of the parties and others, not to finally determine the matter. Neither the Applicant nor the Respondent have been given the chance to prepare, file and serve all evidence relevant to the proceedings and the material before the Tribunal has not been subject to thorough challenge or testing. For her part, the Applicant challenges many of the factual allegations made against her. Neither she, nor the Tribunal, is assisted by the absence of written reasons or the consideration of an internal review. For its part, the Respondent has yet to make a final decision on whether Child 1 and Child 2 should remain, permanently, in the Applicant's care and may well be obtaining further clinical and expert evidence as part of that process.