CITATION: K -v- Minister for Community Services [1999] NSWADT 25 DIVISION: Community Services APPLICANT: K RESPONDENT: Minister for Community Services FILE NUMBER: 288 HEARING DATES: 31/03/99 SUBMISSIONS CLOSED: 31/03/99 DATE OF DECISION: 28 April 1999 N Hennessy - Deputy President BEFORE: B Gelin - Judicial Member L Nagle - Member PRIMARY LEGISLATION: Children (Care and Protection) Act 1987 APPLICATION: Guardianship - refusal to terminate guardianship of a ward - MATTER FOR DECISION: Principal matter Applicant: In person REPRESENTATION: Respondent: M Daniel ORDERS: 1. The decision made by the delegate of the Minister for Community Services under s.112(1)(e) of the Children (Care and Protection) Act 1987, to refuse to terminate the Minister's guardianship of F, is affirmed. History of application 1 This is an application by Mr K for review of a decision by a delegate of the Minister for Community Services. The decision, made under s 112(1)(e) of the Children (Care and Protection) Act 1987, was to refuse to terminate the Minister's guardianship of the applicant's ten year old daughter, F. On 26 June 1997, F was declared to be a ward until she attains the age of 18 years. Mr K requested that the Minister's guardianship be terminated and that F be returned to his care. The Minister's delegate refused this application and it is this decision which the Tribunal has been asked to review. Issues and legislation 2 In cases such as these, the Tribunal is required to treat the welfare and interests of the child as its paramount consideration, and must have regard to the wishes of the child if it is possible to determine those wishes. (Children (Care & Protection) Act 1987 s 89(1) and (2)). Consequently the issue is, having regard to F's wishes, whether it would promote her welfare and be in her interests to be restored to the care of her natural father. To ensure that F's wishes were known to the Tribunal we appointed a guardian ad litem, Anne Abbey, to represent her at the hearing. 3 The process for reviewing decisions and the Tribunal's powers are set out in the Administrative Decisions Tribunal Act 1997 (ADT Act) Chapter 5, Part 3. The Tribunal has to consider all the material available to it and determine what the correct and preferable decision is. This process is often described as the Tribunal "standing in the shoes of the decision maker." After hearing an appeal the Tribunal may: affirm the decision; vary the decision; or set aside the decision. (ADT Act s 63(3)) The evidence 4 The Department's file discloses that F was born in Uganda on 20 December 1988 and lived with her mother until she was approximately 18 months old. She was then looked after by her paternal grandmother while her father was in Kenya. When F was 2 years old arrangements were made, through the Red Cross, for F to accompany her father to resettle in Australia. Mr K migrated to Australia with a de facto partner whom he then married, however they separated after one month. Mr K initially resided in Perth where some tribal "cousins" lived. F lived with him until she was 6 years old when she was given into the care of tribal cousins, for approximately 6 months. This placement did not work out and Mr K sent F to live with tribal "cousins" in Victoria. This placement also ended after 6 months. Mr K then moved with F and a new de facto partner, S, to Mittagong. F's half brother, R, was born to S and Mr K on 21 October 1996. The family then moved to the Central Coast. 5 The NSW Department of Community Services first became involved with F on 1 February 1996 following a notification, subsequently confirmed, of physical and verbal abuse, namely being hit with a "switch" on the buttocks. According to the Department, despite intensive family support and regular respite care there were five further confirmed notifications of physical abuse and lack of supervision. 6 In an affidavit to the Children's Court date 15 January 1997, Louise Stewart, a District Officer, listed the notifications of neglect/abuse in relation to F which had been confirmed: 6 July 1996 Notification of child left without adequate supervision. Case registered and family referred to family support Bowral. 31 October 1996 Notification of physical abuse investigated and confirmed. Family support worker employed by ISP funding to provide intensive support. Regular respite foster care arranged for F. 24 November 1996 Notification of physical abuse and child left without adequate supervision investigated and confirmed. Natural father K was charged by Bowral Police with neglect under s 26 of the Children (Care and Protection) Act for leaving F unsupervised. An AVO order was taken out by Police against to protect F. signed an undertaking with the Community Services Centre at Bowral on the 25 November 1996 agreeing to the following: 1. Not tot leave F by herself or unsupervised any time 2. Not to hit F or hurt her in any way. 1 December 1996 Notification of physical abuse was investigated and confirmed by Gosford Department of Community Services. Child removed under section 60 of the NSW Children's Care and Protection Act 1987. The child was returned to her stepmother's care following the imprisonment of her natural father K on 3 December 1996. Regular respite by way of weekend foster care was organised. F was enrolled in Vacational Care for each operating day in the school holidays. 28 December 1996 Notification of child left without adequate supervision was received and confirmed by the department. 7 Mr K served a prison sentence of four months duration from December 1996 to April 1997 for driving under the influence of alcohol and being an unlicensed driver. S had difficulty managing F during December 1997. On several occasions F ran off by herself for the whole day. At the end of December F was placed in Departmental foster care. 8 On 7 February 1997 the applicant was charged with assaulting and neglecting F on the evidence of a neighbour who saw the applicant "lift his seven year old daughter F up by the hair and push her against a wall in their home. He was then seen to kick the child on the lower parts of her legs." On 14 March 1997 he was convicted of these offences and fined. 9 A trial restoration of F to her father's care began on 6 May 1997. However on 5 June 1997 F arrived at the Community Services Centre in a taxi with boxes containing her belongings. In his evidence Mr K said that F asked to leave and that "she might have been upset, but I was more upset." 10 F was made a ward on 26 June 1997. According to Meredith Daniel, an Assistant Manager with the Department of Community Services, there were "huge problems finding a permanent placement for F." She entered the "Gateway" program run by Dalmar at Lewisham in January 1998 while a long term foster placement was being sought. 11 According to a report dated 22 March 1999 from Dalmar, F's behaviours escalated whilst at "Gateway." "These behaviours include: intrusive verbal and physical behaviour that can escalate to a point where F poses a threat to person and property; defensive behaviour patterns such as attention seeking, theatricality including high pitched screaming, stealing, deceitfulness; and potentially self damaging behaviour such as absconding and fire lighting. She has also engaged in illegal activities, including breaking into local houses to steal and damaging properties." 12 F was placed with a foster carer, E, during the second half of 1998 but following allegations of abuse was removed a few weeks later. These allegations took three months to investigate, but were ultimately found not to be proved and F was returned to E on 6 February 1999. A report from Kim Hadley, the foster care case worker dated 22 March 1999 states that: "Recently F has shown remarkable growth in her self understanding, communication skills and ability to manage relationships. F has been able to apologise for misbehaviour and even been able to express remorse where appropriate." 13 Since February 1999 F has been attending a Special School for students presenting behavioural and/or emotional difficulties. A report from the school dated 15 March 1999 indicates that F is making good progress and that it is intended that she commence integration into a regular school in Term 2, 1999. The long term plan for F is that she remains living with E. 14 F had an access visit with her father on the day before the hearing. This is the first time she had seen him for two years. Sharyn Paduch, the Phoenix Program Co-ordinator who attended the access visit, gave a detailed account to the Tribunal. She said F was anxious about the visit. Mr K shook F's hand but had minimal eye contact throughout the visit. He was "resistant to interactions" and "aloof." When Mr K said to F, "You're coming home with me" she said, "Yes." 15 Mr K's evidence was that F is worse off since she has been made a ward than she was while living with him. He said she has not been attending school whereas when she lived with him she did go to school. According to the applicant, F's only problem when she was living with him was that she would wander off by herself. Now, he says, F is being influenced by other children in a "rough" environment and is breaking into houses and stealing things. 16 In relation to leaving F unattended, the applicant said that he only went for short periods and made sure friends and neighbours were there to look after F. He did not deny smacking her on the bottom with a stick but said she was not an easy child and he "could not stop telling her" that what she was doing was wrong. He said he regretted hitting her but he did it "to stop her, not because she is my enemy." Mr K said "I am not a dangerous person. I drink but I am not a heavy drinker or an alcoholic." He said that his role is not to give her affection but to see that "she has a strong heart and show her what is good for her." 17 According to Mr K if F was returned he would buy her presents if she did the right thing but not if she did the wrong thing. He said the most important thing for her was to give her encouragement so that she would get a good education, not taking her to the park or cuddling her. He said if she was returned he would "observe" her and decide what the best way is of dealing with her. 18 In relation to support for the family he said that he attends a church with a Ugandan pastor and there are several good families he knows with young children. His partner Sarah is now working full time as a nurse and he is looking after the baby. When asked why he had not seen F for two years Mr K said he had been trying to get her back. 19 Mr K raised the point that despite the Department saying that they would try to find a culturally appropriate placement for F they had failed to do so. The Department agreed that they have been unable to find a Ugandan or other African family but that she has been placed with a Fijian woman whose culture, according to the Department, is similar in some respects to the African culture. 20 Dr David List, a clinical psychologist, interviewed the applicant in his rooms and in his home. In his report dated 6 March 1999 Dr List concluded that: ". . . presents as a loving father with substantial limitations in his capacity to understand the presumably complex needs of his daughter. He displays difficulties with affectional behaviour that are consistent with attitudes that may well be culturally based. His views of what children are like, what their needs are, and what fathers can provide, are sufficiently narrow to raise grave concerns about his capacity to provide adequate parenting. In addition there remain unresolved questions about his disciplinary style and allegations of abuse that may, if proven, place his child at acute risk in his care" 21 Dr List concluded that given the issues raised above "it cannot be recommended that guardianship be terminated or that the child F be returned to the care of her father." 22 Anne Abbey, the guardian ad litem, told the Tribunal that F was initially keen to attend the Tribunal. However, F subsequently changed her mind. Ms Abbey reported that while F wanted to return to live with her father "some things would need to be different." For example her father would have "to stop hitting and kicking her. He would also have to stop drinking and getting sick from this drinking." F said that she does not want to stay living where she is as "she doesn't like not having her own TV set or being told what to do by her foster carer." At the access visit Sharyn Puduch confirmed Mr K's evidence that F responded positively when her father told her that she was coming home. However Sharyn Puduch gave evidence that "she stepped behind me" after saying "Yes" to her father's question. 23 After hearing all the evidence, Anne Abbey recommended that F not be returned to her father's care but supported the need for meaningful contact between them. Her conclusion was based on the applicant's "limited view of his role as a father, that is, that of moral guidance rather than supporting her emotional development." She said that there was a "high congruence between Dr List's concerns and the behaviour exhibited by Mr K at the access visit. For example, he was unable to respond to F's anxieties during access and showed no understanding or response to her emotional needs." Ms Abbey's view is that Mr K has had a role in the escalation of F's challenging behaviours in care but that he denies any responsibility for her current emotional state. She said that it was possible for this to change given increased access and family counselling. If access is positive and Mr K demonstrates an understanding of F's needs then, in Ms Abbey's view, the issue of restoration could be revisited. Discussion of evidence and findings of fact 24 There was very little conflict between the facts as disclosed in the Department's file and Mr K's version of events. Mr K admitted hitting his daughter and regretted having done so. He also admitted leaving her unattended at times, but sought to justify and explain his behaviour. Given Mr K's conviction for assault and neglect and the documentation on the Department's file, the Tribunal finds that Mr K has assaulted and neglected F in a way which cannot be justified. Mr K's main submission was that F's behaviour has deteriorated during the two years she has been in care and that she would be better off living with him. There is no doubt that F's behaviours have become even more challenging over the last two years, however the expert opinions of both Dr List and Ms Abbey are that F's welfare and interests are better served by her remaining a ward than returning to live with her father. The main reasons for this opinion are that while Mr K is concerned about F and is committed to caring for his daughter, he has an extremely limited understanding of her needs and how to meet those needs. This means that he is not currently able to provide a nurturing environment or to manage her behaviour in a safe and caring manner. Application of law and decision 25 F's wishes are relevant to the Tribunal's decision, however they are not determinative. There is consistent evidence from two independent experts that F's welfare would be promoted and it would be in her best interests to remain in care despite some indications that she wishes to return to her father's care. The Tribunal accepts the evidence of these two experts which is supported by evidence from Dalmar and the Department. 26 Both expert witnesses also recommended that access between the applicant and F be encouraged. The Department has indicated that it would be prepared to pay for Mr K to travel from his home in Melbourne to Sydney for access visits. The Tribunal urges Mr K to take up this offer and to speak to F regularly by phone. The Tribunal also recommends that Mr K participate in parenting courses and family therapy with the assistance of the Department. If access is positive and the parenting courses and therapy provide Mr K with the insights and strategies needed to meet F's needs, then restoration should be reconsidered. 27 Accordingly, the Tribunal makes the following orders pursuant to s 63 of the Administrative Decisions Tribunal Act 1997: The decision made by the delegate of the Minister for Community Services under s 112(1)(e) of the Children (Care and Protection) Act 1987, to refuse to terminate the Minister's guardianship of F, is affirmed. I HEREBY CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF THE ADMINISTRATIVE DECISIONS TRIBUNAL. REGISTRAR / ASSOCIATE 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.