CITATION: W & B -v- Minister for Community Services [1999] NSWADT 90 DIVISION: Community Services APPLICANT: W & B RESPONDENT: Minister for Community Services FILE NUMBER: 994016 HEARING DATES: 09/14/1999 SUBMISSIONS CLOSED: 09/14/1999 DATE OF DECISION: 27 September 1999 B Gelin - Judicial Member BEFORE: D Brennan - Member J Mason - Member PRIMARY LEGISLATION: Chidren (Care & Protection) Act 1987 APPLICATION: Review of decision to terminate the custody of a ward - MATTER FOR DECISION: Stay of primary decision Applicant: In person REPRESENTATION: Respondent: W Trugen, Department of Community Services Orders made on 14 September 1999 ORDERS: 1. Application for stay dismissed. 2. The process of movinf F from the Applicants' care to a new foster home must be gradual and with maximum possible involvement of the parties concerned. 3. The review of the primary decision is to be proceeded with as a matter of high priority, and the Tribunal is to arrange as soon as possible for an independent psychological assessment of the child. The primary decision appealed against 1 F, born 1998, is a state ward until age 18, currently in the care of the Applicants as a short term placement. On 10.09.99, the Minister, by her delegate the Manager of the Department of Community Services Bega/Batemans Bay approved a recommendation from Barnardos Find-a-Family, Sydney, to move F from the current placement to a longterm placement, thus making the decision ("the primary decision") which is the subject of the primary Application before the Tribunal. The Tribunal has jurisdiction to hear such Application: Section 112 (1)(f) of the children (Care & Protection) Act 1987. The stay application 2 The Applicants concurrently apply for an urgent stay of the primary decision, under Section 60(2) of the Administrative Decisions Tribunals Act 1997. Their arguments for such application are that the removal of F from their care would be psychologically detrimental to her, and that the assessment by Barnardos Sydney of their long term suitability as foster parents is biased, unreasonable and inaccurate. 3 The Tribunal moved expeditiously to hear this stay application. Although the relative merits of the primary decision are clearly relevant to any decision to grant or refuse the stay order sought by the Applicants, it was not possible to call for or assemble and examine all the evidence pertaining or relevant to that primary decision. By its very nature, an urgent application for a stay requires a decision – to grant or refuse such stay – in the absence of, and pending, all of the evidence required to properly review the primary decision. Evidence before the Tribunal 4 The Tribunal read and considered all the written evidence before it: (a) Decision, made by W and B, filed 13.09.99. (b) Report on Teleconference on F held on 01.09.99, submitted by Barnardos Australia. (c) Memorandum, J Reid District Officer Bega CSC to L Hickey Barnardos Find-a-Family, undated, presumably March 1999. (d) Order of Childrens Court, Bega, dated 10.09.99. (e) Minutes, dated 10.09.99, of a teleconference held 01.09.99, by R Bull, Assistant Manager Bega CSC. (f) Medical Report, by Dr Mark de Souza, 03.09.99. (g) Letter of Referral, Southern Health Service Bega, to L Ryan, Disabilities Team, DOCS Bega, 18.12.98. (h) Memorandum, A Sautelle, Physiotherapist DOCS Bega to Dr T Greenacre, 09.02.99. (i) Medical Report on F, by Dr Toby Greenacre, F 16.02.99. (j) Second Medical Report on F, by Dr Toby Greenacre, 08.06.99. (k) Report on the Placement of F, by J Kitchin, Director Barnardos Canberra, undated. (l) Letter/report, Theresa Lindfield, Clinical Psychologist, to L Moggach, Coordinator Family Care, Barnardos Sydney, 13.09.99; confidential. (m) Assessment Report on W and B, by Caroline Kyle, Caseworker, Adoption and Permanent Family Care, undated, presumably August 1999; draft. (n) Letter, Applicants to Caroline Kyle, in reply to above Assessment Report, 30.08.99; tabled at the hearing 14.09.99. 5 The Tribunal heard evidence, at the hearing, from Mr W Trudgen for the Department; Ms Caroline Kyle, Ms Lynne Moggach and Ms Tina Smith for Barnardos Sydney; from Ms Jenny Kitchin and Ms Robyn Brodie-Read for Barnardos ACT (by telephone link); and from both Applicants. The child, F, a sixteen-month old infant, was present at the hearing, mostly being held by either W or B. 6 A summary of the history and background facts, about which there appears to be no disagreement amongst the parties, is as follows: · F was born 1998. Three siblings were already in foster care. On 10.08.98 F was declared a ward of the state. She was in a short term placement in the home of a foster mother, E. Restoration was at some point attempted but resulted in failure. The likelihood of restoration in the future is considered virtually nonexistent. The child's present health and development appear normal and satisfactory. However, her family's health history indicate a high probability that she will suffer some degree of developmental disability. · The Applicants have lived together as a couple for about ten months. They applied to Barnardos Canberra to be respite carers. On 17.06.99 F was placed, by Barnardos ACT, under delegation from the Department of Community Services, with the Applicants. Although the documentation before the Tribunal, and oral evidence on behalf of the agencies involved, clearly indicate that this was to be a short term placement, the Applicants submit that shortly after the beginning of this placement they were told it could be a permanent one. · There are no complaints whatsoever concerning the Applicants' care of F, or doubts about their love, affection and support for the child. W and B applied to be considered for long term foster parenting subsequent to F's placement with them. The assessment of their suitability for long term placements has not been completed, but Barnardos points out that the Applicants would fail to meet their criteria for such suitability in some major respects, to wit, that they have lived together for less than one year (whereas their policy requires a minimum of three), that both of them work (whereas their policy requires a caregiver available full-time to look after a child this age), and that they do intend to become pregnant and have their own child in the near future. It is in this respect that the major differences appear between the parties: the Applicants submit that they are suitable as long term foster parents and that the agencies' policy should be bent in this case, and that such exception to policy is justified as being in the best interests of the child, given inter alia that she is already in a good home where she is dearly loved and well looked after. The agency argues that their policy is based on research and long experience as to what factors indicate or predict the best chances for long term stability for a child. It is also noted that the foster parents to whose home F is proposed to be moved are likely to adopt her. · On 01.09.99 there was a workers' teleconference to consider the case plan for F, and the primary decision was made. On 10.09.99 the Applicants were informed of that decision, and promptly lodged these appeals. Reasons for the decision 7 This Tribunal, like all persona or agencies who are in a position to make decisions under the Children (Care & Protection) Act 1987, is required to treat the welfare and interests of F as its paramount consideration: Section 89(1) of that Act. Section 60(3)(a) of the Administrative Decisions Tribunal Act 1997 allows the Tribunal to make orders, in the context of this stay application, "only if it considers that it is desirable to do so after taking into account the interests of any persons who may be affected by the determination of the application". Clearly, F's interests are paramount in this regard. 8 In arriving at its decision, the Tribunal considered the various possible scenarios which lie ahead for F. In the short, hopefully very near, term, the Tribunal will review the primary decision. Without in any way preempting the results of such review, and based – as recognised earlier in this document – on only preliminary and incomplete evidence relevant to that primary decision, this Tribunal felt that, on the preponderance of the evidence available, there is a reasonable likelihood that the review will result in a confirmation of the primary decision, that is, that F will be removed to the long term placement with more experienced, tested and approved foster parents, with a view to adoption. This possibility will be referred to as "Scenario A". 9 There is of course also the possibility that the Applicants' contention, that the agencies' policy should be more flexible in this case, that their suitability as long term foster parents should be accepted, and that F should remain in their care, may prevail. This is particularly so in view of the fact that, while the agencies contend that the Applicants do not meet, or on assessment are not likely at present to meet, the criteria laid down by their policy for long term foster parents, no evidence has been adduced that presently the Applicants are unfit as foster parents. If so, F would remain in their care, and this possibility will be referred to as "Scenario B". 10 If this Tribunal presently grants a stay of the primary decision, and if Scenario A will ultimately obtain, delaying F's removal is very likely to increase her difficulties with the separation from the Applicants. It is apparent to the Tribunal also that the Applicants' own pain and trauma is likely to be even greater. 11 If F is now removed to a new foster home, pursuant to the primary decision, and if it turns out that Scenario B ultimately prevails, provided that all the parties involved have conducted themselves professionally and cooperatively with one another, and that the review of the primary decision is completed in a relatively short time, the child is likely not to have suffered as deep a trauma. 12 The Tribunal's decision, not to grant the stay requested by the Applicants, represents a choice within the context of a risk management exercise. The Tribunal is confident that the parties have understood this context, and is gratified that the representatives of Barnardos have already expressed a commitment to handle the removal of F to a new foster home as a gradual process, with maximum involvement by both sets of foster parents. 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