HA v Minister for Community Services [1999] FCA 1785 | Case summary

1 On 20 February 2003, the Department of Community Services (DoCS), acting under delegation from the Minister for Community Services (the Minister), removed a child, EF, from the care of his maternal grandparents, Mr and Mrs HA, the applicants in these proceedings. EF is 12 years old and has two siblings, a sister aged 16 years and a brother, 13. At the time of EF's removal all three children lived together with their maternal grandparents, who are also their foster parents. 2 On 10 November 1992, EF and his siblings were made wards of the State under the guardianship of the Minister until 18 years of age under the provisions of the Children (Care and Protection) Act 1987 (the C & P Act). On 29 November 1992, all three were placed in the care of Mr and Mrs HA. For a period of eighteen months (January 1998 - July 1999) the children were returned to the care of their birth mother. For about half of the remaining period, Mr and Mrs HA lived apart and the children resided with Mrs HA. 3 By application dated 24 February 2004, Mr and Mrs HA sought a review of Minister's decision to terminate their custody of EF (the review decision). On the same day they lodged an application to stay that decision. The stay application came before this Tribunal on 4 and 6 March 2003. A stay was not granted. Jurisdiction 4 It is not in issue that the decision to remove EF was made in exercise of the Minister's power to terminate the custody of wards, a power conferred by s 91(1)(e) of the C & P Act. 5 The decision is reviewable by the Administrative Decisions Tribunal: C & P Act, s 112(h), read in conjunction with the Administrative Decisions Tribunal Act 1997 (the Tribunal Act), s 38 and s 40(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993. 6 An application for an internal review of the Minister's decision was made on 27 February 2003. No internal review has been conducted. That review is now taken to have been finalised as no decision had been made within 14 days after the application for review was lodged (Tribunal Act, s 53 (9)(b)). Procedural matters 7 Following the stay hearing, on its own motion the Tribunal ordered that EF be joined as a party to these proceedings (Tribunal Act, s 67(4)). Subsequently, Barbara Ramjam was appointed Guardian ad litem. 8 The proceedings were heard over five days in April and May 2003. The Guardian ad litem and the Minister were both represented by counsel throughout the proceedings. On the final two days of hearing Mr and Mrs HA were legally represented but otherwise Mr HA represented both. 9 Section 126(1) of the Tribunal Act makes it an offence to publish or broadcast the name of any person to whom any proceedings before the Community Services Division of the Tribunal relate. Section 126(2) contains an exception in relation to the publication of an official report of the proceedings. However, in these reasons, because of the sensitivity of this matter, we have decided not to publish any details that may identify the applicants and their family. The applicants are referred to in these reasons by the pseudonym, "Mr and Mrs HA" and the ward as "EF". The official copy of the orders provided to the parties will include the name of the applicants and the ward. Legislative provisions 10 The principles to be applied in decisions concerning the removal of wards are set out in s 89 of the C & P Act: (1) In the administration of this Part, the welfare and interests of wards and protected persons shall be given paramount consideration, (2) In determining any matter relevant to the welfare or interests of a ward or protected person, regard shall be had to the wishes of the ward or protected person. 11 In reviewing the decision which is the subject of this application the Tribunal is to decide what the correct and preferable decision is having regard to the material before it. The powers of the Tribunal on review are set out in the Tribunal Act, s 63. (1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. (3) In determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 12 Section 64 (1) provides that in determining an application for a review of a reviewable decision, the Tribunal must give effect to any relevant Government policy in force at the time the reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case. 13 In determining what is the correct and preferable decision the Tribunal is "obliged to conduct the review without any presumption as to the correctness of the decision under review": McDonald v Guardianship Administration Board [1993] 1 VR 521 at 530 (SupCtVic, Appeal Div). Material Before the Tribunal 14 Before the Tribunal in this inquiry was a large volume of material, the bulk of which consisted of the DoCS file on EF tendered through Francine Clough, the DOCS case worker responsible for EF at the time of his removal form his grandparents. In addition, two reports prepared by the Guardian ad Litem were tendered in evidence. Both Mr and Mrs HA and Mrs HA's niece gave oral evidence as did Ms Clough, the Minister's delegate, Trina Whitton who made the review decision, psychiatrist Dr Brent Waters, and an officer of the Department of Juvenile Justice, Ms Joanne Downes. 15 In the course of the proceedings, the Tribunal interviewed EF in the absence of the parties, but with their consent, at Reiby Juvenile Justice Centre where he was then detained. Review Decision 16 It is not in issue that the trigger for the review decision was the alleged assault of EF by his grandfather on 19 February 2003 (the kicking incident). In a letter to the DoCS dated 20 February 2003, Constable Cameron, Youth Liaison Officer, St George area stated: "Regardless of the allegation [the kicking incident] being fact or fiction, it would be far more beneficial for [EF] if he was placed in an alternative permanent residential location. By removing [EF] from this location he is removed from such a threat. While [EF] is at this location he is placed in a dangerous position and in an immediate risk. If [EF] continues to attend/reside at this location police cannot ensure his safety. I believe that placing [EF] in an alternative permanent location would be in the best interests of all parties, most importantly that being [EF]." [Mr HA argues that Constable Cameron was new to the area and ill placed to make that recommendation.] 17 Mr and Mrs HA were advised in writing of the delegate's decision to terminate the placement on 21 February 2003. In a brief notice of the same date, Ms Tassende, for DoCS, advised that the placement was terminated because of: ongoing reports of domestic violence; inappropriate family environment; unsuccessful handling of child's behavioural difficulties. In a letter dated 17 March 2003, DoCS elaborated on the reasons for that decision. Background 18 The following chronology was prepared by the respondent and provides useful background to the review decision. While much of this information is uncontroversial, Mr and Mrs HA dispute parts of the chronology. 5 January 1991 -EF born 24 August 1992 -Report received by DoCS, children left without adequate supervision Approx 3 November 1992 - Children placed in St Anthony's home 10 November 1992-Wardship Order granted for EF and his siblings due to concerns of neglect and inadequate supervision by their mother. 29 November 1992-Children leave placement in St Anthony's home 29 November 1992-Children are placed in the care of Mr and Mrs HA Late 92 early 93-Mr HA leaves the home following a relationship breakdown with Mrs HA 30 May 1994-Incident report to DoCS regarding inappropriate parenting and disruptive behaviour March 1997-Mr HA returns to the home. AVO against Mr HA by Mrs HA July 1997-Mrs HA and children move out of the family home and move in with children's…natural mother January 1998-Mrs HA moves back in with Mr HA. Children are left with natural mother and her sister 31 March 1999-Incident Report to DoCS regarding inadequate supervision July 1999-Children return to the HA home after reconciliation between Mr and Mrs HA 10 April 2000-Incident report to DoCS regarding EF being found walking along a busy roadway May to December 2001-7 reports made to DoCS re: EF: running from car on busy roadway alleged physical abuse by Mr HA EF hitting Mr HA Stealing Running away from home Exposure to domestic violence between Mr and Mrs HA Violence towards other students at school 26 November 2001-Referral to PANOC to provide a therapeutic service to EF and his grandparents 19 December 2001-Allegation of physical abuse in care by Mr HA toward EF. December 2001-AVO in relation to physical abuse in care January to August 2002-22 incident reports made to DoCS Re: EF: Witness to domestic violence Stealing Roaming the streets/lack of supervision Ongoing behaviour management problems Absconding at night Smashing windows, throwing rocks Self harming (one occasion) Assaulting other children 21 June 2002-Incident report followed by Mr HA's request that EF be placed elsewhere. 25 June- 5 July 2002-EF placed with Gateway Youth 5 July-12 July 2002-EF placed with Kyle Williams House 30 August - 2 September 2002-EF placed with Maitland Youth Crisis service 2 September - 15 September 2002-EF placed with Sydney Emergency Accommodation Services (SEAS) 16 September 2002-EF absconds and returns to his grandparents 26 September 2002-ICM is engaged to support the placement with EF's grandparents 28 September 2002-EF is charged with armed robbery in company 17 October 2002-Dr Brent Waters diagnoses EF with Oppositional Defiant Disorder and emerging Conduct Disorder 29 January 2003-Domestic violence incident between Mr and Mrs HA 30 January 2003-EF removed from grandparent's care at the wishes of Mr HA 30 January 2003-EF is placed with Mrs HA's niece 13 February 2003-EF absconds and returns to grandparents' care. 19 February 2003-Alleged physical abuse of EF by Mr HA 19 February 2003-EF removed from grandparents' care EF enters MECN program 19 It is common ground that EF is a child who demonstrates severe behavioural problems. He has been diagnosed as suffering from severe Oppositional Defiant Disorder and emerging Conduct Disorder. 20 In the 18 months before his removal from the applicants, EF has been in police custody on at least 13 occasions and had come to the attention of police on over 50 other occasions for matters including assault, break and enter, stealing and attempted armed robbery. 21 In mid 2002, EF's behaviour deteriorated significantly. In the period June to September 2002 he was placed in a succession of crisis care facilities, absconding to his grandparents on each occasion. At that time the consensus among relevant DoCS' workers at that time was that despite misgivings about aspects of EF home environment, the best option for EF was to remain with his family, with intensive external support. To that end, DoCS engaged Intensive Care Management (ICM). The stated aim of the ICM program was to reduce EF's criminal, anti-social and absconding behaviours. Under the program a youth worker was allocated to work with EF each day from 8 am to 9 pm (excluding school hours). Under the program EF participated in a range of activities such as ice skating and boxing. In early January 2003, DoCS decided to reduce the hours of care provided by ICM, a decision opposed by Mr HA and the police. EF remained in the ICM program until he was removed from his grandparents. 22 In regular reports provided to DoCS throughout the period September 2002 to February 2003, ICM noted a modest but discernible improvement in EF's behaviour. Post Removal from Applicants 23 Following removal from his grandparents, EF was placed with DOCS and cared for in motel accommodation. On 28 February 2003 he was placed with MECN (Meeting the Ever Changing Needs), a private organisation contracted by DOCS to provide 24-hour care and supervision for EF for an indefinite period. 24 Before the Tribunal were reports prepared by MECN workers about alleged incidents involving EF. These reveal that throughout that placement EF was reported to police on numerous occasions for a range of matters including threatening and assaulting staff, absconding and damage to property. EF's behaviour deteriorated significantly in the latter half of that placement, when police were called almost daily. 25 On 8 April 2003, EJ was sentenced for convictions of robbery in company and other offences and placed on 12 months' control orders, with a non-parole period of three months. He was detained at Reiby Juvenile Justice Centre. On 7 May 2003, the District Court overturned that sentence and EJ was released to DoCS care. 26 The following table summarises the offences for which EF has been charged and subsequent court appearances from the date of removal from his grandparents until the close of these proceedings. 28 February 2003-EF enters MECN program 12 March -EF charged with assault and malicious damage 27 March -EF absconds placement. Overnight detention 30 March -EF charged with malicious assault 31 March-EF charged with malicious damage. Appears before children's court. Bail refused 1 April -EF charged with common assault, stolen motor vehicle, breach of bail conditions. Detention to 7 April 8 April -EF given 12-month control sentence, 3 months non-parole. Detained at Reiby to 7 May. 7 May -Sentence overturned by District Court. EF released to care of DoCS 7 May -EF placed at Compass house 14 May 2003-EF transferred to crisis care placement following "serious incident" 29 May 2003-EF charged with assault and malicious assault. Absconds. EF appears before Children's Court. Released on bail. Returns to placement 30 May 2003-Attempts suicide by hanging. Taken to hospital by police. Placed in locked ward 31 May 2003-EF discharged from hospital. Returns to placement. Charged with malicious damage and common assault. Detained 2 June 2003-EF appears before Children's court. Bailed to appear before Local Court on 23 June 27 On 2 April 2003 EF came before Lidcombe Local Court for breach of bail conditions and was released on bail. Docs were unable to find a placement for EF, as MECN had announced on that day that they refused to continue the placement. As a result, EF remained in remand for five nights. On the eve of his appearance before the sentencing court, an alternative placement was found and EF was placed with Compass House, a private emergency care provider. Evidence Domestic Violence Allegations 28 In a letter to Mr and Mrs H dated 17 March 2003, DoCS summarised 19 alleged incidents of domestic violence for the period January 1997 to February 2003. DoCS' records indicate that the police were called to each incident but no charges were laid. 29 Mrs HA denied that her husband has been violent towards her. She said, "I might cop something I wasn't meant to because EF was being physical and I was in the way… I'd get in the middle to defend him and all hell would break loose". Mr HA denied hitting or punching his wife though conceded that on occasion he might have given her a shake or a push. 30 Mrs HA said EF could be violent at times. She said she had witnessed her husband and grandchild argue but claimed "[Mr HA] wouldn't hit him… I'd always been in the middle." Mr HA denied kicking or punching EF and claimed to be always in control when faced with EF's challenging behaviour. He denied being physically violent toward EF but concedes, "it depends on your definition". From talking to police he concluded that "some of the actions I've done are in restraining self defence". 31 Mr HA said EF was a violent child and had been physically violent towards him, his wife, the police and the school principal. 32 We set out below the respective explanations given by the applicants in evidence in these proceedings about some of the reported incidents of domestic violence. 33 Shed incident. On 17 August 2002, Mrs HA reported to police that her husband had hit her. In these proceedings, Mrs HA conceded that he might have. She said at the time she had been very upset as she had witnessed her husband lock EF in a shed (with, she asserted, DoCS' approval). 34 A police report noted: "Mrs HA refused to complete or sign statement. Would not cooperate with police. AVO telephone order taken out on her behalf. Withdrawn on her request." 35 Mr HA said the only reason his wife reported him to police was to "pretty the story up" and to get her point across that EF should not have been locked up. According to Mr HA, when the police were called EF had only been in the shed for about a minute. He claimed there was no other option at the time: EF was out of control and needed "time out". 36 Leather belt incident. On 18 December 2001, EF was taken to hospital having alleged that his grandfather had beaten him across the shoulder with a leather belt. A medical report noted severe bruising to EF's left shoulder and arm. 37 Mr HA said that before the incident, the principal of EF's school had rung to tell him that his grandchild had been involved in a violent altercation with another child. Mrs HA had gone to collect EF but in the meantime he had absconded, returning home. According to Mr HA, when he went upstairs to counsel EF about his behaviour, his grandson rushed down the stairs screaming, "Oh Poppy is hitting me!" 38 Mr HA claims EF's bruises could be explained by the fact that he was a very active child who was never free of bruises and injury. 39 Mrs HA said she did not witness that incident nor did she see EF's shoulder. She said she did not believe EF's claims about his grandfather. According to her, EF frequently made unfounded allegations against a lot of people. 40 Kitchen Incident. Mr HA gave evidence that on 29 January he and his wife had been arguing about financial matters. According to Mr HA, during the course of that argument his wife became quite agitated and ran out, calling to EF's brother "your Pop is hitting me". Mr HA denied touching his wife and said "my family has a great knack of fabricating things." 41 The following day the police took out an interim AVO order against Mr HA. Mrs HA told the Tribunal she does not intend to pursue the application. 42 Fishing Rod Incident. On February 1 2003, a heated argument arose between the Mr and Mrs HA over the use of the family car. According to Mr HA, his wife was yelling at him in the street and he demanded she stop. EF came to his grandmother's defence, prodding Mr HA with a fishing rod. According to Mr HA, he repeatedly asked EF to stop but he refused. In exasperation he grabbed the rod and snapped it over his knee. Mr HA said he later replaced the rod, which had been his gift to EF, with a more expensive model. 43 Kicking incident. In a statement to police dated 19 February 2003, EF alleged that his grandfather had kicked him in the face. ICM caseworker, Domenic Defillipi , gave a statement to police that immediately after the alleged incident EF told her that his grandfather had kicked him in the face. According to Ms Defillipi "His eyes looked a little watery, more like he was upset than in pain." 44 Mr HA denied kicking EF. He said he had stepped in to stop a heated argument between EF and his brother. While waiting on the stair landing for EF to leave [with Ms Defilippi], EF had stamped on his bare foot and then slammed a CD case into his foot. Mr HA said to protect himself he had put his foot out, but in so doing, accidentally hit EF on the chin. No charges were laid. Applicants' relationship with EF 45 Mrs HA said she loves EF and that this is reciprocated. They are very close. They understood and were in her view very much like each other. "I will always be there for him, till I die." In Mrs HA's view, EF was better off with the family, not in the care of strangers. 46 Mr HA conceded that he had had many arguments with EF, but his grandson was resilient, and didn't hold a grudge. He described his relationship with his grandson as "all right". While his wife was clearly the favoured grandparent, Mr HA said he was sure that EF loved him. According to Mr HA on a recent visit, EF had been extremely happy to see him. He said in the last few months EF "seems to have lost his guard in showing affection… and now runs up and gives me a hug." Relationship between the applicants 47 It is not in issue that the applicants argue about financial matters and how to manage EF and that these arguments can be quite heated. Both agreed they sometimes argued in front of their grandchildren. 48 The applicants said they were living together and intended to continue doing so. Managing EF's Behaviour 49 The applicants do not dispute that EF is a difficult child who frequently places himself at risk. Nor is it in issue that they have different and sometimes conflicting views about how to manage his behaviour. Mrs HA takes what both characterise as a "soft" approach. Mr HA is seen as the disciplinarian. Both agree that they frequently argue about parenting issues in front of EF. While Mr HA conceded he and his wife differed about how best to manage EF, he pointed out they were not alone. "We disagree… but no more than DoCS disagree [about EF], ICM disagree and the police disagree." Family Environment 50 Mr HA described the family environment as "pretty much" the same as most families. In his view it was about the same as the environment in which his own children grew up. He conceded that he and his wife might argue more than they used to, or more than other people, because of EF. However "they [family arguments] are about nothing and over as quickly as they happen." Mrs HA described the home environment as a loving one. She said she was very protective of her grandchildren. 51 Both applicants claimed that they had no difficulties managing their other grandchildren who remain in their care. Both in their view were well adjusted and doing reasonably well at school. Both applicants said none of their own children had any significant behavioural problems. They claimed to be in regular contact with their own children. 52 Mr HA said he was prepared to do anything to assist EF modify his behaviour and would do anything suggested. He said that if EF were returned he would he would be prepared to participate in any plan or program suggested. In cross-examination, he said he did not see his own behaviour as having any bearing on EF's difficult behaviour. Later in evidence he said that it was possible that his parenting style was somewhat lacking. 53 Both applicants said they would be prepared to be assessed and to participate in a Boystown program if "that was what was needed to get EF back." Psychological Evidence 54 Janice Lowe. In 1999, psychologist Janice Lowe conducted a review of the applicants' family. In a report dated January 1999 Ms Lowe recorded that Mr HA was clearly "the dominant personality" in the marriage…"his attitude was not aggressive but highly opinionated. He frequently spoke over his wife, openly disagreed with her and showed a degree of intolerance for her ideas. She, in contrast, was diffident and generally deferred to him even where she seemed to disagree." 55 In Ms Lowe's view, EF presented as a very needy, attention-seeking child requiring constant feedback and reinforcement. She observed him (and his siblings) to be "extremely negative about his grandfather and strongly rejecting of him." Nevertheless, according to Ms Lowe as EF was fearful of being removed from his family he tended to soften his views about his grandfather. 56 Ms Lowe stated that she was unable to recommend an ideal placement for the HA children. She saw that placing the children with their grandmother as sole carer to be a possible solution. She concluded, "This assessment clearly does not support the children's current placement as a safe environment in which their sense of security can be enhanced and their emotional needs met." 57 Ms Lowe noted that Mr HA had expressed interest in obtaining advice and assistance about the management of his grandchildren and recommended that he be referred for assistance. She thought he might benefit from intervention that focussed on practical parenting issues. However, she did not see him as a candidate for insight-based counselling/therapies given his "very opinionated stance on most issues". 58 In a second report dated November 2002, Ms Lowe stated that while in her view the ICM program was a reasonable focus of intervention, any program aimed at assisting [EF] while he continues to reside in the GA home, would be seriously compromised. She saw poor potential for significant improvement of key family relationships in the current circumstances. 59 PANOC Report. The applicants were seen by the Child Protection Counselling Service (PANOC) throughout 2000/2001. In a report dated July 2002 PANOC counsellor, Paul Morgan said he believed that the applicants had contributed to EF's difficult behaviour, largely because they could not agree on a joint approach to parenting. He described Mr HA's dealings with EF as "authoritarian, harsh, prone to outbursts of anger and physical punishment and demonstrated little empathy for EF". 60 Mr Morgan was pessimistic about the ability of the applicants to change. "..due to the entrenched nature of [the applicants'] personal belief systems, combined with their own relationship dynamics, it is extremely unlikely they will change their parenting style in response to counselling". He concluded "I have grave concerns for EF's emotional development and long term mental health if he remains in their care". 61 LISGAR. EF was referred to Anglicare's LISGAR Youth Support Program in June 2002 and remained with that program for about four months. During that time he met regularly with youth support worker, Elizabeth Anthony. In a report dated November 2002, Ms Anthony said she believed that EF's home environment lacks "consistency, positive role modelling and safety". Her view was that, under those circumstances, the success of any home-based intervention would be limited. 62 ICAMHS. EF was referred for assessment to the St George Infant, Child and Adolescent Mental Health Service (ICAMHS). That assessment was not completed. 63 In a report dated 20 September 2002, ICAMHS diagnosed EF as suffering from Oppositional Defiant Disorder and Emerging Conduct Disorder. The report noted that EF did not appear to have a serious psychotic or mood disorder. Although an organic cause was seen as unlikely, the report noted that the requested paediatric review had not been undertaken. 64 Dr Brent Waters. Psychiatrist, Dr Brent Waters, assessed EF in October 2002. That assessment was truncated. 65 In a report dated 17 October 2002, Dr Waters concurred with the ICAMHS' diagnosis. Dr Waters noted that EF exhibited signs of Attention Deficit Hyperactivity Disorder but doubted that this was the central part of the problem. In his view it was unlikely that EF's problems were of a constitutional or organic origin. Rather it was more likely they were caused by the "the extreme disruption of his social environment up until three years ago". 66 Dr Waters considered that unless the balance of anti-social over pro-social behaviour was reversed "EF will in effect take matters into his own hands and will show an ever hardening Anti-Social Personality Disorder." Managing that reversal, according to Dr Waters would be "extremely challenging". Placement Options 67 DoCS' Plans. Ms Clough gave evidence that, subject to the outcome of these proceedings, DoCS planned, in the short term at least, to place EF with Compass House, a service similar to that provided by MECN. Ms Clough considered this to be the best option to "stabilise" EF's aberrant behaviour. 68 Ms Clough said she was confident that the proposed Compass placement would be successful. In her view it was unlikely that the MECN experience, which saw an abrupt termination of that placement, would be repeated. Compass according to Ms Clough was better placed to accommodate EF, with better staffing levels and a supported management structure. [It is to be noted that this evidence was given before EF was placed with Compass, upon release from Reiby.] 69 In a report dated 1 April 2003 and tendered in these proceedings, Ms Clough stated that DoCS was looking at a number of long-term placement options for EF. Possible placements included St Vincent's Adolescent care, Marist Youth Care, Stretch a Family, Barnados Find a Family and Life Without Barriers. According to Ms Clough these proposed options required the co-operation of the applicants to secure admission. 70 Ms Clough said that she saw the only viable medium term options for EF as a residential or home-based placement. It would be highly unlikely, given EF's history of difficult behaviours, said Ms Clough, that a foster placement could be found. 71 Ms Clough was of the view that it would be inappropriate to place EF with a Kids Off the Street type organisation (an option endorsed by Dr Waters and the Guardian at litem) immediately upon release from detention. She considered that EF would benefit from a short period of a highly structured environment, such as that provided by MECN or Compass House. She said that given EF's history of absconding, services such as Father Riley's programs that were based in remote locations, could place EF at risk. 72 EF's preference. EF was interviewed by the Guardian ad Litem and the Tribunal. EF reported to both that he wished to be returned to his family. EF told the Tribunal that he wished to be returned to his whole family, ie Nan, Pop and his siblings. He was specifically asked whether he wished to return home if his grandfather were there and he replied yes. He told the Tribunal that upon release he might consider going to a Father Riley type program for a short period, say two months, providing he was then returned to his family. 73 DoCS' officer, Miriam Fagueret, reported that at a meeting on 19 February 2003, EF said he had three magic wishes: "To live with his mother; his nan will visit and keep an eye on him. If his mum is sick he will go back to nan; To live with his siblings alone; ICM will be their carer 24 hours a day; To live with his nan and his siblings, but she has no money… As to moving to another placement: Never he'd rather stay with his Pop." 74 LISGAR. In November 2002 LISGAR recommended that a "Youth Off The Streets" type program be found for EF. 75 Dr Waters Dr Waters recommended against the continuation of EF's placement with the applicants. In his view EF would be able to sabotage any home-based program, no matter what the intensity. In his view the only viable placement for EF in the foreseeable future was a remote, probably farm-based program such as that offered by the Off the Streets Program run by Father Riley. Boystown, in his opinion, offered a similar type of program. 76 Dr Waters recommended that because of what he identified as "EF's transparent emotional needs and ties to his sister and grandmother" that if he were admitted to such a program, that a relationship and personal contact with his sister and grandmother should be maintained. 77 ICAMHS. In September 2002, ICMHS recommended against a continuation of EF's placement with his grandparents. The service recommended that he be placed with his grandmother and siblings but not his grandfather. Alternatively, it recommended a residential placement such as Boystown or St Vincent's Home for Boys. 78 The service recommended that the success of any placement was contingent on close contact and support from Mrs HA. 79 Department of Juvenile Justice. A report was tendered in these proceedings prepared by Joanne Downes, an officer with the Department of Juvenile Justice. Ms Downes has been an officer with the Department for four years and has a diploma in youth work. She holds no formal qualifications in psychology. 80 In her report, Ms Downs identified areas of concerns with EF's current arrangements: · Engaged in distance eduction with limited and inadequate support; · No appropriate counselling relating to his anger/acting out behaviour; · Constant disruption in EF's accommodation and care plan; · Social isolation from children his own age; · The use of the court system as a means of behaviour control; · The effect this is having of on EF's emotional development; · EF's enquiries as to when he can return to his grandparents' care. 81 Ms Downes said a child as young as EF was a rarity in the juvenile justice system. The majority of children seen by the Department are 15 and up. She expressed particular concern with what she saw as EF's social isolation since his removal from his grandparents. She said he had made it clear to her that he wished to be returned to a mainstream school and wanted to be with other kids. She was concerned that the constant movement from placement to placement meant EF was unable to develop bonds or relationships. She strongly advocated that the Boystown option advocated by Ms Ramjam be adopted. Findings and Conclusions 82 The principal issue to be determined is whether the decision to terminate Mr and Mrs HA's custody of EF is the correct and preferable decision. There is no easy answer to that question. The answer reached depends, first, on the findings of fact which can be made on the evidence and, second, on the options open to the Minister. The C & P Act mandates that, in making this determination, the interests of EF are paramount considerations and regard must be had to his wishes. 83 There are three fundamental grounds on which the Minister bases her decision to terminate the placement. First, there have been on-going and consistent reports of domestic violence in the family household. The allegations are that EF's grandfather has been violent both to EF and to his grandmother. Second, DoCS regards the home environment as unsuitable for EF. Third, EF's grandparents have been unsuccessful in handling his behavioural difficulties. 84 The evidence concerning domestic violence is in conflict. EF has made various allegations against his grandfather. The police have reported claims of incidents escalating in seriousness but have taken the view that many of the allegations made by EF against his grandfather are either false or misleading. EF himself has admitted that he has made a number of false allegations against his grandfather. He has also admitted having exaggerated an allegation that his grandfather had kicked him. 85 It is clear, however, that the relationship between EF and his grandfather was severely strained, that EF had behavioural problems and that there were many occasions when tempers flared on both sides. Mr and Mrs HA also appear to have had very conflicting views on how to deal with EF's behaviour. This has, on her account, led to occasional physical violence being inflicted on her by Mr HA in the course of her seeking to defend EF. Mr HA denies any unlawful behaviour. 86 Between May and December 2001, seven reports were made to DoCS alleging that EF had run away from home, that Mr HA had assaulted EF, that EF had assaulted Mr HA, that EF had been stealing and that EF had been violent at school. It was also reported that he had been a witness to domestic violence at home. Whether there is substance in each of these reports is unclear, but there can be no doubt that the pattern is a disturbing one. On 19 December 2001, a report of EF being physically abused was corroborated by medical evidence. From January to August 2002, 22 further reports alleged that EF had been a witness to domestic violence, had been stealing, had lacked supervision by his grandparents, had assaulted other children and had engaged in destructive behaviours, including self-harm. 87 It is not necessary to find all, or any particular, incidents substantiated to observe that the disturbing pattern observed by DoCS to be emerging during 2001 was strengthening in 2002. Whether Mr HA acted unlawfully either towards EF or his wife is largely a matter of conjecture. It is unlikely, on the evidence before the Tribunal, that any charges of assault could be proven beyond reasonable doubt, which is perhaps why he has never been charged by police. On the other hand, what is abundantly clear is that EF's behaviours, which might be described broadly as "acting out", have been increasing in frequency and intensity and that his grandparents have been defeated in their efforts to control his conduct or to teach him to control it. 88 In September 2002, EF was charged with robbery in company and he was diagnosed in October 2002 by Dr Brent Waters as suffering from an Oppositional Defiant Disorder and with an emerging Conduct Disorder. From June 2002, various attempts were made to place EF with carers other than Mr and Mrs HA. Between 25 June 2002 and February 2003, EF was placed, or placed himself, with seven different care providers, including his grandparents to whom he returned from other placements on at least two occasions. 89 Four things emerge from this sorry chronology: first, that the placement with his grandparents has, at this stage, proved to be unsuccessful; second, that one of the main reasons for this is that EF's behavioural problems are beyond his grandparents' ability to manage; and, third, that despite everything, he remains deeply attached to his grandmother and possibly also his grandfather; fourth, that his grandparents are deeply concerned for him and love him despite what has happened within the family. We do not doubt Mr HA's sincerity in declaring his attachment to EF. 90 On the face of it, the Minister had solid grounds to terminate the placement when the decision was made. Nonetheless, there are a number of unsatisfactory aspects to that decision. While Dr Waters had made an assessment of EF, it was incomplete and based largely on second-hand information. We agree with the submission of the Guardian ad Litem that it is a matter of concern that, despite DoCS' decade-long involvement with EF, especially throughout the period 2001-2003, he has not been fully assessed by Dr Waters or another child psychiatrist. Dr Waters' diagnosis and proposed treatment plan must therefore be regarded with a degree of caution. 91 It is also of considerable concern that DoCS itself has not apparently developed a full case management plan for EF following his removal from his grandparents. If it has, it has chosen not to reveal it to the Tribunal. At the conclusion of these proceedings, some four months after EF's removal, the only care plan of which the Tribunal was informed, was that he would be placed in crisis care type accommodation for a short but indeterminate period. DoCS" evidence was to the effect that this would continue until EF's conduct had "stabilised". It is not apparent what assistance, if any, would be provided to assist EF achieve that end or how "stabilisation", if that were to occur, would be assessed. There is before us no evidence of the counselling plan Dr Waters identified as being critical to his recovery. Nor is there any expert evidence before us to support Ms Clough's view, that a crisis care option, such as that offered by MECN or Compass House is appropriate for EF. 92 A further troubling aspect about the sorry history following EF's removal from his grandparents is DoCS' apparent failure to heed the warning of its own medical experts that the success of any future placement is contingent upon the maintenance of close contact between EF and his grandmother and sister being facilitated. The applicants' contention that contact with their grandson has in effect been denied would appear to be somewhat exaggerated. However, the evidence makes it clear that there is no plan to give effect to Dr Waters' and ICAMHS' unequivocal recommendation that close contact between EF and his maternal grandmother be maintained. 93 While the Minister's delegate correctly had reason to be troubled about EF's behaviour while under the care of his grandparents, the inescapable conclusion is that since removal EF has been in free fall. During that time, he has attempted suicide, been admitted to a psychiatric hospital (albeit for a short period), been regularly reported to police, at times on a daily basis, been before the courts on numerous occasions and attacked staff at every placement in which he has resided. His behaviour has been so extreme that one crisis care service, presumably with some experience of coping with children with challenging behaviour, took what on the face appears to be the extraordinary step of summarily terminating the placement. This left DoCS with no option but to leave EF to languish in remand for five days after bail had been granted. 94 The report and submissions from Ms Downes emphasise the necessity and urgency of developing a full treatment plan for EF. In her report she lists a number of concerns which she believes must be addressed to reduce the likelihood that EF will become a child entrenched in the juvenile justice system. While she endorses the recommendation that EF not be returned to the care of his grandparents, she emphasises that psychological intervention is a critical issue in EF's case in relation to his anger and "acting out" behaviours. She also believes that he needs greater support in terms of education, his emotional and social development and stable placement. 95 In her view, the problem with short-term placements is that EF will be unable to form close bonds with his carers and others who are likely to influence him beneficially and that this is likely to lead to further "social dislocation" and a "fragmented lifestyle". As she sees the situation, "the longer this goes on the more damaged the boy's emotions may become". In our opinion, commonsense and experience of the world suggest that this is right. She was also critical of DoCS' failure to develop or present a concerted plan to counter the fragmentation of EF's development. 96 Ms Downes and the Guardian Ad Litem, as well as DoCS, consider that a placement with EF's grandparents is not feasible at present. To this extent, then, it would seem that DoCS has made the appropriate decision in this case. That, however, is not the end of the story. 97 There is cogent evidence - in particular EF's own stated desires to remain with his grandparents - that a plan which encompasses the hope and possibility of a return by EF to live with his grandparents, when or if the circumstances are suitable, ought to be developed. We agree with Ms Downes' conclusion that "It is very likely that the best possible outcome for EF is to be returned to his grandparents care and any case plan ought to have that as its primary focus." The proposal of the Guardian ad Litem, which is supported by Juvenile Justice, that EF be placed with Boystown, strikes us as having great merit because Boystown focuses on, and is experienced with, children like EF. Boystown specialises in dealing with children with difficulties of the types suffered by EF and aims at restoring and supporting families. Boystown is within a reasonable distance of the grandparents and would enable the bonds to be maintained and for the relationship to be developed and improved. 98 Given EF's age, we do not think that anyone would argue with Ms Downes' submission that it is not in EF's interest to be incarcerated with older boys, on control orders, with entrenched anti-social behaviours. It is apparent from her evidence that she is afraid that if a suitable plan is not developed and implemented urgently to divert EF from the juvenile justice system into an environment more conducive to his appropriate development that a poor outcome is inevitable. Ms Downes noted that "The Boystown option will allow for grandparental and sibling contact, and counselling to… address resettlement and other issues." 99 The Guardian ad Litem is to be commended for taking the initiative in exploring the option of EF being placed at Boystown. This alternative to placement with his grandparents, at least for the time being, and a placement imposed by the courts pursuant to a control order, virtually recommends itself. Boystown may not be a panacea to all of EF's, and this family's, misfortunes and difficulties, but it presents a more hopeful approach than anything else that has thus far been presented to the Tribunal for consideration. Decision 100 It is submitted for the applicants that the correct and preferable decision is for the review decision to be set aside and EF to be returned to their care. They point both to their willingness to take whatever steps are necessary to assist EF and improve their parenting skills as well as their grandson's repeated wish to return to the family home. We understand them to argue that the experience following EF's removal provides strong support for their contention that his behavioural problems are not the product of their home environment. 101 Counsel for the Guardian ad Litem, Mr Hogg, urges the Tribunal to make orders that would in effect embrace the treatment plan, which is proposed by the Guardian and endorsed by Ms Downes. The form of orders proposed is that the review decision be set aside and the following orders be made in substitution: that EF be subject to a full psychological assessment; that he enter the Boystown program; that upon discharge from the control of the Department of Juvenile Justice he be returned to his grandparents. 102 Mr Hogg submits that the Tribunal must take into account that EF is now subject to a "control order" made the C & P Act in force until November 2003. By the operation of that order EF is now under the control of the Minister for Juvenile Justice. 103 Mr O'Brien, counsel for the respondent submits that on the evidence the Tribunal can be satisfied that the correct and preferable decision is for the review decision to be affirmed. He contends that the form of order proposed by the Guardian At Litem is simply beyond power. 104 In determining what is the correct and preferable decision, the Tribunal is able to exercise those functions conferred on the Minister under the C & P Act but only in order to determine whether or not to terminate custody. The Tribunal is not empowered, asserts Mr O'Brien, to move on and decide other matters such as those relating to the future placement or custody of a ward as the Minister is able to under s 91(1)(c) and s 91(1)(d) of the C& P Act. 105 Before moving on consider the issue of the breadth of the Tribunal's powers we note a practical difficulty in the form of orders proposed by the Guardian Ad Litem. As we noted, there is much to commend the Guardian's proposal. However, underlying the proposed orders is the assumption that on the expiration of the control orders, it will be in EF's best interests to be restored to his family. In our view, it is impossible to say in advance with any certainty whether this would be the case. We are satisfied that Mr and Mrs HA will make genuine and real attempts to modify their own behaviour and to assist EF, there can be no guarantee that these efforts will meet with success. The success of any restoration plan will be determined by a range of factors including EF's desire and ability to work towards such a goal, the support provided to Mr and Mrs HA in this process and their ability to provide a more suitable home environment. 106 This Tribunal does not have unlimited jurisdiction or discretion to determine the future placement of the child. In Taylor v Director-General, Department of Transport [2001] NSWADTAP 29 the Appeal Panel adopted the formulation of the Full Court of the Federal Court in Fletcher v Commissioner of Taxation (1988) 84 ALR 295 on the question of the width of the Commonwealth Administrative Appeals Tribunal's powers of review. In that case the Federal Court held (at [34]): As a matter of principle, it must be correct… that the powers and discretions [to exercise in the course of the review of the original decision] are the powers and discretions vested in the original decision-maker for the purposes of making the decision under review. They do not include any powers and discretions that may be vested in the decision-maker for some other purpose. 107 As has been held by the Federal Court in Tutugri v Minister for Immigration & Multicultural Affairs [1999] FCA 1785, the task of the Tribunal when reviewing an administrative decision is to address the question before the decision-maker and not some other, distinct question. 108 While we accept that the Tribunal does not have an unlimited jurisdiction to determine the future placement of a ward, we do not accept the narrow characterisation of the Tribunal's powers advanced by the respondent. It is self-evident that a decision to terminate (or continue) custody whether made by the Minister or the Tribunal is, in effect, a decision about the future placement of a ward, as well as a decision to terminate (or not) the placement in question. 109 In YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA said: Although… the Care and Protection Act and the Administrative Decisions Tribunal Act do not give the reviewing body power to make a placement of wards, but only give it power to review a decision of the Minister to terminate custody, the Administrative Decisions Tribunal Act does require the reviewing body to decide "what the correct and preferable decision is" and does give the reviewing body power to make a decision in substitution for the reviewable decision. My tentative view is that, under those provisions, if the reviewing body were of the view that, rather than custody being terminated, custody should be continued and there should be steps taken towards restoring the ward to the person whose custody is maintained, a decision to that effect would be within power. 110 In written submissions, Mr O'Brien respectfully disagreed with this view. He submitted that a decision which directed certain intermediate steps be taken with a view to restoration of the child with applicants would be beyond power. 111 It is true that the remarks quoted above from Hodgson JA were obiter and therefore not a statement of principle binding on the parties or the Tribunal. However, they have significant persuasive authority notwithstanding their tentative and preliminary character. We believe that, if this Tribunal were satisfied that the evidence demonstrated that, with certain steps being taken to address the concerns of the Minister, the original decision to terminate a placement ought be revoked, the other collateral directions would, as Hodgson JA implies, be integral to the making of a "correct and preferable decision". In our opinion, the dicta of the Court of Appeal are to be preferred in general terms to the submission of the respondent. 112 Nonetheless, whether or not that view of the law is correct, it appears to us that at present it is not clear that the child could successfully be placed back in the applicants' care and that this case is, therefore, distinct from the type of case considered by Hodgson JA. As we will elaborate below, we are hopeful that the family may in future be restored but we cannot state with absolute confidence that this is achievable. Whether it is can only be assessed over a period of time. 113 The only substantial question before the Tribunal is whether the decision to terminate the placement is the correct and preferable one. It may be that the original decision, when it was made, was the correct and preferable one, but that, given a change in circumstances and the passage of time, the Tribunal's decision may be different from that made originally. (See YG & GG v Minister for Community Services at [25].) Since the original decision was made, the circumstances have altered in a number of material respects. First, EF has been placed under the Minister of Juvenile Justice's control by the District Court. As a consequence, the Department of Juvenile Justice has had a chance to consider and assess options (for his future placement. Second, the significant deterioration in EF's behaviour, including the very worrying attempt at suicide, since removal from his grandparents indicates that the crisis care option favoured by DoCS is simply not working. Third, the Guardian Ad Litem has taken the initiative and sought to have EF considered for a placement with Boystown. 114 It is in the light of these circumstances, that we must consider the question of what is the correct and preferable decision. We are of the view that this Tribunal may not purport to make orders or give directions as to the future placement of the child, except to the extent that such orders are necessary to give effect to decision to terminate custody. 115 That said, it seems to us, however, that, while making orders only in respect of the original decision, it remains open to the Tribunal, in an appropriate case, to make recommendations to the original decision-maker as to his or her the future conduct of the case at hand. It may well be appropriate for the Tribunal to make such recommendations in a case where, in the process of reviewing a decision, relevant evidence which was not available to the original decision-maker is discovered or made available. 116 In this case, therefore, we would affirm the original decision to terminate the placement but make the following recommendations. First, that EF be placed at Boystown as soon as it is possible to do so. Second, that he be given a full psychological assessment. Third, that DoCS liaises with the Department of Juvenile Justice with a view to diverting EF from the Juvenile Justice system. Fourth, that the applicants be re-assessed at an appropriate time as to their suitability as foster-carers for EF. Fifth, that, if with counselling or training or both Mr and Mrs HA's suitability as foster parents can be improved that EF be reunited with his grandparents. 117 These recommendations are based on the assumptions that a placement at Boystown will be reasonably successful in addressing and moderating EF's behavioural problems and that, with sufficient support, his grandparents would, consequently, at some stage in the future, then be equipped and able to care for EF. Orders Decision under review is affirmed. The Tribunal makes the following recommendations: First, that EF be placed at Boystown as soon as it is possible to do so. Second, that he be given a full psychological assessment. Third, that DoCS liaises with the Department of Juvenile Justice with a view to diverting EF from the Juvenile Justice system. Fourth, that the applicants be re-assessed at an appropriate time as to their suitability as foster-carers for EF. Fifth, that, if with counselling or training or both Mr and Mrs HA's suitability as foster parents can be improved that EF be reunited with his grandparents. Decison revised by adding intials HA in parragraphs 34 & 86

HA v Minister for Community Services

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Judgment (9 paragraphs)

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