Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DEN v Benevolent Society [2018] NSWCATAD 131 Hearing dates: 9 March and 24 April 2018 Date of orders: 26 June 2018 Decision date: 26 June 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: M Hitter, Senior Member D Crowley, General Member Decision: 1. The decision of the respondent to remove from DEN the responsibility for the daily care and control of "S" and "J" is affirmed. 2. The decision of the respondent to cancel DEN's authorisation as an authorised carer is affirmed. Catchwords: ADMINISTRATIVE LAW- administratively reviewable decision – where decision to cancel authorised carer status and remove the responsibility for the daily care and control of children under the care of the Minister. Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Children and Young Persons (Care and Protection) Act 1998 Children and Young Persons (Care and Protection) Regulation 2012 Civil and Administrative Tribunal Act 2013 (NSW) Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) Evidence Act 1995 (NSW) Cases Cited: CMJ v Secretary Department of Family and Community Services [2017] NSWCATAD 52 DDR & DDS v Lifestyle Solutions (Aust) Ltd [2017 NSWCATAD 266 DEN v Benevolent Society [2017] NSWCATAD 309 Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 Roberts v Bianco (1987) 8 NSWLR 436 Category: Principal judgment Parties: DEN (Applicant) Benevolent Society (Respondent) Representation: Solicitors: Care Legal (Applicant) R McLachlan (Respondent) Dr Ainsworth (Guardian Ad Litem) File Number(s): 2017/00265980 Publication restriction: Disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal is prohibited. Note: 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. REASONS FOR DECISION Introduction 1. The applicant ("DEN") seeks a review of a decision made by the Benevolent Society ("the Respondent") concerning the cancellation of her status as an authorised carer and the removal of two children from her care, "S" (aged 11 years) and "J" (aged 9 years). S and J are DEN's maternal grandchildren ("the children"). DEN sought an internal review of this decision where the decision was upheld. DEN then sought a stay or to otherwise affect the operation of the reviewable decision, which was refused (DEN v Benevolent Society [2017] NSWCATAD 309). 2. There is no dispute that the Tribunal has jurisdiction to hear this application pursuant to the Children's and Young Persons (Care and Protection) Act 1998 (NSW) ("Care and Protection Act") and the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW). 3. A Guardian Ad Litem was appointed for the children who was present throughout the Hearing. 4. The Hearing was held in Sydney over two days. 5. DEN seeks re-instatement of her status as an authorised carer and the children returned to her care either on a full-time basis or as a respite carer. The Respondent is opposed to DEN's authorised carer status being re-instated but is amenable to DEN having regular contact with the children in her capacity as a grandparent. 6. The Guardian Ad Litem told the Tribunal that his view was that the Respondent's decision to de-authorise DEN as a foster carer was "excessive and punitive". The Tribunal did not agree with this view in light of the evidence presented at the Hearing. The Tribunal however agreed with the Guardian Ad Litem that it is important for the children to maintain contact with DEN particularly in the context of the children's cultural background and religion. The Tribunal was told that this can be maintained through regular contact with DEN, which has in fact occurred since the children were removed from her care. 7. DEN argued that the Respondent acted prematurely in cancelling her authorised carer status and in removing the children from her care. Her view is that she was not provided with sufficient opportunity to address the Respondent's concerns and was not provided with enough support to sustain the foster care placement. DEN argues that the Respondent did not take into account that these concerns were also only raised after more than four years, during which time no concerns were raised about DEN's capacity to care for the children. 8. DEN's case before the Tribunal focused to a large extent on the Respondent's process of investigating the allegations and concerns in relation to DEN's capacity to care for the children and the basis on which the Respondent made the decision to cancel her authorised status and to remove the children. DEN maintains that she is best placed to provide parental care for the children. 9. The Tribunal concluded on the basis of the evidence presented to it that the Respondent's decisions should be upheld and that it would not be in the best interests of the children to return them to DEN's care for the reasons set out below. The relevant law 1. The relevant legislative provisions are set out in CMJ v Secretary Department of Family and Community Services [2017] NSWCATAD 52 and DDR & DDS v Lifestyle Solutions (Aust) Ltd [2017 NSWCATAD 266. 2. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) or the Civil and Administrative Rules 2014 (NSW) do not otherwise make provision. The rules of evidence do not bind the Tribunal (except in relation to privileged disclosures, for example under s 128 of the Evidence Act 1995 (NSW)), and it is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal forms: NCAT Act, s38,; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15] – [17]. 3. Where the Tribunal has a discretion to act on material which is rationally probative, subject to the rules of procedural fairness and other aspects of natural justice, the Tribunal must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Roberts v Bianco (1987) 8 NSWLR 436. 4. The "guiding principle" under the NCAT Act (NSW) and the procedural rules in their application to proceedings in the Tribunal, "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings", subject to a principle of proportionality to the importance and complexity of those proceedings: NCAT Act, ss 36(1) and (4). 5. The Tribunal may review of decisions made by a "relevant decision-maker" if it is a decision referred to in s 245 of the Care and Protection Act. 6. The parties did not assert that the permanency plan for the children had any relevance to the decisions under review. DEN asserted that cultural identity is enhanced by the placement of the children with her and that was envisaged in the permanency plan for the children to remain with her until they turned 18 years of age. However matters specifically referencing cultural identity were not embodied in the Orders putting in place the permanency plan for the children and so s 245(1B) does not come into play in this matter. 7. Section 134 of the Care and Protection Act provides objects specifically in relation to out of home care, which are: 1. to create a high standard in the provision of out of home care, and 2. to provide a model for the organisation of out of home care, and 3. to clarify the roles and responsibilities of those involved in the provision of out of home care. 1. The Respondent has obligations to supervise placements of children with authorised carers under s 140 of the Care and Protection Act. The supervisory powers granted to the Respondent include the power to move a child from one placement to another in order to protect the child from neglect or risk of harm and where the provision of care does not attain the high standard stated in the Care and Protection Act. 2. The Tribunal is required to determine "the correct and preferable decision having regard to the material before it" including material that might not have been before the decision maker, which in this case is the Respondent: Administrative Decisions Review Act 1997 (NSW), s 63. 3. The paramount principle in any action or decision under any provision of the legislation concerning a particular child is the safety, welfare and well-being of the child: Care and Protection Act, s 9. The material before the Tribunal 1. The Tribunal was provided with the following material: 1. Applicant's written outline of submissions (A1). 2. Bundle of Additional Documents filed on behalf of the Applicant dated 20 February 2018 (A2). 3. Affidavit of DEN dated 12 February 2018 (A3). 4. Bundle of Additional Documents filed on behalf of the Applicant dated 15 December 2017 (A4). 5. Bundle of Additional Documents filed on behalf of the Applicant tendered at the Stay Hearing on 14 September 2017 (A5). 6. Bundle of Additional Documents filed on behalf of the Applicant on 29 August 2017 (A6). 7. Submissions on behalf of the Respondent received 5 March 2018 (B1) 8. Section 58 documents filed by the Respondent (volumes 1 to 4) received on 21 September 2017 (B2). 9. Affidavit of AM received 4 December 2017 (C1). 10. Affidavit of JB received 20 February 2018 (replacing Affidavit filed on 4/12/17) (C2) 11. Affidavit of NF received 20 February 2018 (C3) 12. Affidavit of AH received 20 February 2018 (C4) 13. Further Affidavit of AH received 1 March 2018 (C5) 14. Expert report provided by GB received 23 January 2018 (C6) 15. Bundle of documents from NSW Health and Family and Community Services (C7). 16. Submission provided by the Guardian Ad Litem received 20 April 2018. Background to Ministerial parental responsibility of the children 1. The children were placed under the parental responsibility of the Minister due to parental drug use, mental health issues and homelessness leading to their inadequate care. DEN had been involved with the children since their birth but they were only placed in her care from about July 2012. The care plans filed in the Children's Court envisaged DEN would care for them until they turned 18. This was a culturally appropriate kinship placement. 2. The final orders were made by the Children's Court in September 2012, which gave parental responsibility of the children to the Minister until they reach 18 years of age. Relevantly, the Court accepted undertakings from DEN that: 1. she would not allow either parent to have any unauthorised contact with the children; 2. she would work collaboratively with the Department or a designated agency; 3. she would not allow either parent to reside in the home where the children are residing at any time; and 4. if she is supervising contact between the children and the parents she will terminate contact immediately if either parent is drug affected or appears drug affected. 1. In September 2012, DEN gained approval as an authorised carer with the Respondent. An arrangement was also put in place from January, 2014 for respite care when needed with NF and her husband SM. 2. The children were removed from DEN's care in April, 2017 and her authorised carer status was cancelled in May, 2017. Since June, 2017 the children have been placed with JB, who is an approved foster carer. 3. The children are cared for under the Respondent's "Fostering Young Lives" Program (FYL). The Tribunal saw evidence of significant psychological, developmental and educational difficulties experienced by both children. The children have required and continue to require, a high degree of support and care, which includes access to various therapeutic and other support services. The decision to de-authorise DEN as an authorised carer 1. Chapter 8 of the Care and Protection Act makes provision for out of home care placements and the authorisation of carers to provide these placements. 2. Section 137(2) provides that regulation may make provision for the cancellation or suspension of this authorisation and cl 42 of the Children and Young Persons (Care and Protection) Regulation 2012 provides that: A designated agency may, by notice in writing, cancel or suspend the authorisation of an authorised carer if the agency is of the opinion that the authorised carer: (a) is no longer a suitable person to be an authorised carer, or (b) has failed to comply with any condition of the authorisation, or (c) has failed to comply with any obligation or restriction imposed on the authorised carer by the Act or this Regulation, or (d) has failed to comply with a written direction to the authorised carer by the designated agency or the Children's Guardian under section 157 (3) of the Act, or (e) has failed to uphold the Chapter of Rights prepared under section 162 of the Act. 1. The Respondent wrote to DEN in May 2017, advising that her authorised carer status had been cancelled for the following reasons: "You permitted the children to have unsupervised contact with their mother after signing a safety plan stating you would not allow this; The children missing a combined total of 40 percent of school last year; You organised multiple holidays during school terms, and have continued to organise more despite being counselled about it undermining the children's schooling; Lack of attendance and/or ongoing rescheduling of appointments meaning the children do not receive or received delayed medical and therapeutic treatment; Lack of supervision over social media and the internet; Lack of or no supervision and assistance with the children's homework; A physical altercation between you and a neighbour where you were arrested in front of the children; A current Apprehended Violence Order taken out against you (still pending); A deterioration in your health; Advising the children to lie to case managers; and An ongoing concern which has been raised with you, that you do not fully accept your primary responsibility as an Authorised Carer, concerns raised by the agency and the impact of trauma on children." 1. Following DEN's request for an internal review of this decision, in August, 2017 the Respondent provided DEN with a report written by AL, who had conducted this internal review (the internal review report). The internal review report cites the material on which the Respondent based its decision to cancel DEN's authorised carer status and to remove the children as well as material provided by DEN in response to the concerns raised about her capacity to care for the children. 2. The internal review report stated that DEN "often does not understand process, concerns and her responsibilities which leads to the Carer becoming frustrated with Fostering Young Lives, causing a further communication and lack of trust". It noted DEN did not feel supported by the Respondent especially during the period from around the middle of 2016 to the middle of 2017. But this was despite "daily contact from the beginning of 2017" and "regular and frequent respite arrangements including alternate weekends and all of school holiday periods". It further noted there was "a level of distrust by the Carer towards FYL, which led her to not disclosing relevant information to FYL as it occurs". 3. The internal review report concluded there was sufficient evidence to find there had been supervisory neglect in relation to "lack of appropriate supervision; schooling; and the medical needs of the children". However the report concluded there was insufficient evidence to support a finding that DEN had advised "the children to lie to FYL" or that they had been exposed to "Domestic Violence leading to psychological harm". 4. The internal review report had also concluded that DEN was provided with "more than adequate support" as well noting that DEN had been suffering from significant mental and physical health issues, which had affected her capacity to care for the children. The internal review upheld the Respondent's decision. 5. DEN argues that the Respondent's decision to cancel her authorised status were premature because there had also been an investigation in progress into "reportable conduct allegations", which had not yet been finalised. 6. The internal review report refers to this investigation of "reportable conduct", which was in relation to alleged neglect and psychological harm of the children. This investigation was undertaken by MB, an employee of the Respondent. Her findings were supported to by TF, who was the Manager of the FYL Program. MB's report addressed two specific 'reportable conduct' allegations: 1. "Neglect of medical, educational, emotional needs and safety by permitting unsupervised contact including an outing with the mother. 2. Behaviour that causes psychological harm – neighbour dispute resulting in verbal aggression and physical altercation leading to her being handcuffed and removed by police – in front of children causing them distress." 1. MB's findings were contained in a report dated 12 July 2017, where she found that allegation (1) was sustained. The report stated "there is sufficient evidence that supervisory neglect occurred, but insufficient evidence to sustain a finding of carer neglect". It noted under the heading "Relevance & Reliability of evidence" that the evidence seems "reliable and strong: (DEN's) own admission and responses regarding children's contact with the mother, not giving medication, and missing schooling. Care workers' observations, school attendance records, discussion with medical offices re appointments". Under the heading of "Comments" it notes: "there is strong evidence to show (DEN) has neglected the children's medical and educational needs and has not adequately supervised the children. The question is whether the neglect, or the cumulative effect of the neglect, has the potential to result in death or significant harm for the children. The harm caused by neglect of medical and educational needs will in time mount in terms of damage to the children's development. Of itself however it may not be considered to be grossly inadequate as to deprive them of basic necessities of life, which is necessary to establish carer neglect". 1. The report further states: "There is strong evidence of supervisory neglect – where (DEN) permitted the mother to reside in the home with the children and to permit her to take the children on an unsupervised outing during which they may have been exposed to drug use by the mother. This contact is contrary to court orders which have been clearly explained to (DEN). It exposed the children to the risk of significant harm. It can be considered a gross breach of professional standards and has the potential to result in significant harm to the children". 1. DEN argued that MB's investigation was not compliant with the guidelines set by the NSW Ombudsman and was not conducted with procedural fairness or in accordance with the principles of natural justice. DEN's solicitor raised these issues with MB in cross examination. MB told the Tribunal her role was to review all the available evidence, which she referred to as a "matrix of evidence" in relation to the reportable conduct allegations, which had also included material provided by DEN. 2. MB said she had 23 years of experience in public administration and had also practiced as a solicitor. MB said the evidence included admissions made by DEN and reported conversations with the children. DEN's solicitor asked MB if she thought there was any conflict of interest arising as a result of her conducting this investigation given that she was also an employee of the Respondent. MB said this did not create any conflict of interest. MB said it was not unusual for investigations of this kind to be undertaken internally by non-government organisations. She said whether investigations of this kind are outsourced to another agency usually depends on funding and it is not a matter of course. The Tribunal accepted MB had undertaken a fair and appropriate approach to the investigation and her conclusions were reasonable on the basis of the evidence available to her. 3. DEN argued she was also not given sufficient opportunity to respond to the Respondent's concerns and she should have been given more time and support before making a decision to cancel her authorised carer status and removing the children. 4. However the evidence suggests that concerns about DEN's capacity to care for the children had been mounting over a period of some time and had ranged over a number of important areas concerning the children including their health and education as well as exposure to potential risk to their well-being and safety. These concerns were raised at various times with DEN over a period of nearly a year. Faced with these concerns, the Respondent was required to take action. DEN had been provided with opportunities to address the Respondent's concerns as well as substantial support from the Respondent and other agencies. The Respondent said that DEN required support beyond what could be reasonably accommodated and there was an unacceptable risk if the children were to remain in DEN's care. DEN's capacity as an authorised carer 1. DEN is 62 years old and currently lives with her partner "A". DEN was born in Russia. She was married at an early age and had two children. The family moved to Australia in the early 1990's. DEN separated from her husband shortly after but they maintain contact with each other. DEN began to experience depression about 30 years ago after her children were born. 2. GB's expert report is based on a series of psychological tests he undertook with DEN as part of his assessment. GB said that DEN's profile does not suggest she is experiencing symptoms at a level of severity to meet diagnostic criteria of any distinctive clinical syndromes. However GB said DEN demonstrates "elevated histrionic compulsive, turbulent and paranoid personality traits". He adds DEN "continues to show poor emotional regulation skills and demonstrates considerable emotional volatility and reactivity when stressed". 3. Until about September 2016, no concerns were raised with DEN by the Respondent about the care of the children. The Respondent undertook carer reviews from 2012 and it was not until the carer review in March 2017, which was undertaken by AM the case manager at the time that it was noted that DEN had "poor organisational skills", which had resulted in the children missing appointments. It also noted DEN had been experiencing depression and anxiety. DEN had not agreed with the contents of this carer review and she did not sign it. The Tribunal was told that the relationship between DEN and AM had been at times problematic. DEN says in her affidavit that she did not feel supported by AM and that she was "negative and looking for fault". 4. Following this carer review in March 2017, the Respondent received further information, which raised more concerns about DEN's care of the children. There is dispute between the parties about the facts which surround some of these concerns. Unsupervised contact with the mother 1. The Orders made by the Children's Court in 2012 indicated that unsupervised contact with the children by their mother was perceived to be a significant risk. DEN gave an undertaking to the Court that this would not occur and an undertaking that the children's mother would not live with them. 2. DEN says there was only one occasion when the children were "unintentionally exposed" to their mother. She said she was in a very difficult situation when her daughter was homeless after she was released from custody. She realised it "was a serious error in judgment on my part and it did not occur again. I certainly would not ever again allow that situation to happen again". She said "I understand that this incident should not have happened, and I regret that it occurred and will do what I can in my power to prevent any future unauthorised contact between the children and their mother". 3. The Respondent's evidence suggests that unsupervised contact with the children's mother had occurred on more than just one occasion and the children's mother had in fact been living or staying with DEN and the children for a period of time after she was released from custody. 4. Around this time AM conducted an unannounced home visit and found the children's mother "in her pyjamas". NF said in her affidavit that on the weekend of 27 and 28 August 2016, when S and J were staying with her, they told her that their mother had been staying with them at DEN's place. NF said on another occasion of respite care on 9 and 10 September 2016, S was unsettled because the Respondent had found out about it. 5. The Respondent also had evidence that around this time the children's mother also took the children on an unsupervised outing. This is supported in GB's report, where he notes that S told him that her mother had taken her and J to the city without the Respondent's permission. S said her mother "was a bit crazy" and "running around everywhere" and appeared to not know where she was. S said to GB that her mother had stayed with them 2 nights after her release and left the following morning after their day in the city. 6. GB told the Tribunal despite DEN's assertions that unsupervised contact would never happen again, it was unclear to him how DEN would be able to follow through on this promise. He said "conflicted loyalties to her daughter versus those of her grandchildren pose a continuing risk for the children, should they be returned to her care". GB was not confident that DEN could manage this conflict in favour of protecting the children. The Tribunal accepted this aspect of GB's evidence and is not satisfied that DEN is able to manage the conflicting priorities between her daughter and the children in favour of protecting the children. This poses a significant and unacceptable risk to the safety and well-being of the children. Education 1. NF describes in her affidavit why she was increasingly concerned that the educational needs of the children were not being met while they were in DEN's care. This was consistent with assessments that identified the children's lack of progress at school and that both children were assessed as below average in their learning components and two years behind in their learning. 2. DEN said in her affidavit that the only time she took the children on holidays during the school term was a ten-day cruise during a school term in 2016 and both the Respondent and the school had approved this. The Respondent said there was another occasion when DEN arranged for the children to stay with their paternal grandparents without permission during the school term. 3. JB described in her affidavit the considerable difficulties that S was having at school when she arrived to live with her and the steps that she has since taken to help S address them. JB also described the additional supports that J has needed as well. JB said this has made a demonstrable positive impact in a relatively short period of time. The Tribunal found this aspect of JB's evidence to support the Respondent's view that the children did need more support to help them with their education than what had been provided while they were in DEN's care. Medical appointments 1. DEN said in her affidavit that there were "two missed appointments for the children". She said there "was one psychological appointment which I cancelled because I was not well enough to take the children". She said she informed the Respondent before the appointment, "but they were unable to offer any help". She said another appointment was when the children were with their respite carers and they did not know about the appointment. DEN says she takes the mental and physical well-being of the grandchildren "very seriously". 2. AM said DEN had not made sure that S took medications prescribed for her psychological difficulties. AM said the Respondent needed to help S get to medical appointments over a period of some months in late 2016 and early 2017. AM said DEN also missed appointments for J at a behavioural clinic because she had not been well and no alternative arrangements were made to ensure his attendance. 3. An Educational and Development Psychologist had been engaged to support DEN and S, especially in relation to problematic behaviour. This psychologist reported to AM that DEN required constant reminders of appointments and often rescheduled and did not attend. AM provided dates and times of five missed appointments. 4. The parties dispute the extent and reasons for missed appointments. DEN's solicitor submits that appointments were missed during a period when DEN was not well and she had made that clear to the Respondent. She says "there appears to be no empathic consideration of this" by the Respondent, only "harsh criticism". In contrast the Respondent points to the evidence provided by NF, AM and AH, who each provide accounts of the efforts made by the Respondent and others to assist the children to attend medical appointments. 5. Notwithstanding the extent of missed appointments and the level of support DEN required to ensure that the children could attend them, JB sets out in her affidavit the extent to which the children require support from a number of professionals in relation to both their physical and mental health. It is clearly a significant aspect of the care that is required for the children. This is also consistent with GB's findings in relation to the children. 6. DEN said in her affidavit that she "can ensure that the children will attend relevant medical and psychological and other appointments" but does not elaborate on how she would ensure this in light of the difficulties she had doing so in the past. 7. GB said in his report that DEN's capacity to "access medical and allied-health professional support both for herself and the children could only be considered limited at best, but at worst, potentially avoidant given the (likely) increasing complexity of the children's developmental needs, must be considered counter-intuitive. Any of these factors individually could be considered sufficient to call into question whether (DEN) will be able to cope as a primary carer, but their combined effect, would certainly weigh heavily against the prospect". 8. The Tribunal was ultimately not satisfied that DEN could manage this important aspect of the children's care. Increased respite care 1. DEN says she has always been open with the Respondent about her own health, which include chronic health issues, which she describes as "arthritis and depression". DEN said it was mostly well managed but she had experienced an episode of depression during transition of antidepressant medications she says "were being ill-managed by treating professionals". She says her psychological condition is now stable. DEN provides evidence in support of this by her treating practitioner but it is limited and does not provide much detail of DEN's current capacity and health status, particularly in light of the issues raised by GB in his report. 2. GB spoke to DEN's psychologist and in an email to both parties he said "I believe it would be reasonable to indicate that (DEN's psychologist) had only a superficial knowledge" of the Respondent's concerns about DEN's capacity to care for the children and remain complaint with undertakings. GB said that the nature of the therapy provided was limited to supportive counselling and that nothing from the updated material provided to him about the psychologist's involvement would warrant amending the opinion he expressed in his report. 3. The Tribunal concludes from the evidence that from about 2015, DEN needed increasing support to care for the children. This may have been because of a combination of the children getting older and needing more intensive support and the deterioration of DEN's own mental and physical health. NF states in her affidavit that she kept contemporaneous records and notes of her observations and concerns while the children were in DEN's care and sets out the extent to which she provided respite care. In 2015, the children stayed with NF on 37 nights. In 2016 it was for 95 nights. And in 2017, it was 19 nights in January and every second weekend from 30 January to 26 March. 4. NF makes a number of references in her affidavit to DEN's difficulties meeting the needs of the children. NF said that in March 2017, DEN mentioned "in passing" that perhaps the children could "do one week with her and one week with us". This was in the context of DEN saying to NF that she was having difficulties coping mentally and physically. NF also describes the deterioration in the relationship between DEN and the Respondent around this time, which she says continued to deteriorate. 5. NF's evidence was directly not challenged by DEN. The Respondent told the Tribunal this might be because DEN was concerned about preserving her relationship with NF. The Respondent submits this did not detract from the weight of NF's evidence and the Tribunal agrees. The Tribunal found NF's evidence persuasive in relation to the deterioration over a significant period of time in DEN's capacity to care for the children. 6. AH stated in her affidavit that there was a meeting in April 2017, where DEN suggested she was unable to care for the children on weekends because she was not able to "look after then all day while they were not at school". AH said DEN also said this to AM at a meeting in March 2017. AH said that DEN suggested a shared care arrangement where the children stayed with her Monday to Friday and then rotated each weekend between NF and their maternal grandfather. 7. The Tribunal was referred to minutes of a meeting contained in the Respondent's material where it is noted that the Respondent told DEN that this suggestion would not be in the children's best interests because they would be moving between three houses. The minutes record that DEN disagreed with this and did not see a problem with this arrangement. 8. GB said DEN told him that she never said that she did not want full-time care of the children. GB reported that DEN did not propose any plans for managing her own mental health more effectively. Although indicating she had seen a psychologist for stress management and it had been helpful in reducing anxiety and depression, GB said "she did not indicate any intention to continue to access this support in the future". 9. However DEN said in her affidavit she has support available to her from the children's maternal grandfather and her current partner. DEN also referred to support from other family support services and said she is willing to attend parenting training and other courses. DEN said she has been seeing a psychologist since February 2017 and would be willing to engage in more intensive sessions if required. The Tribunal was not persuaded that this would be sufficient to overcome the deficits and concerns identified by GB in relation to DEN's capacity to care for the children. 10. DEN said if the children were returned to her care, they could continue seeing JB on a respite basis as well as their paternal grandfather. DEN said the children do not need to keep spending time in respite with NF. This is despite the children clearly having had a long standing relationship with NF. 11. GB refers to changes in DEN's medication, which DEN reports to have improved her mental health, but GB says "the timing of this relative to the prolonged period of her decrementing function from mid-2015 onwards, appears open to question regarding this issue being the predominant causal factor. DEN reported to GB no other strategies or supports to better manage her stress in the future. He says "it is therefore unclear as to how (DEN) intends to manage her own mental health and look after the children should they be restored to her care". 12. GB said in his report that "throughout her interviews, (DEN) displayed a concerningly (sic) limited ability to reflect on her own shortcomings and remained reluctant to assume any responsibility for the concerns" raised by the Respondent. GB states "she displayed little ability to put the needs of the children above her own, engaging in minimal reflection on how her own actions and behaviours may have impacted the children's mental health". GB also said that DEN's interview and the documentation provided "suggested a limited understanding of the actions she needs to take in order to fulfil the children's needs". Relationship with the respondent 1. DEN argues the Respondents did not taken into account the "years of good care and stability" that she provided to the children, with "minimal input and no real carer support" until the latter half of 2016. DEN is critical of the Respondent taking a punitive and unsupportive approach towards her. 2. AM was cross examined by DEN's solicitor, particularly in relation to the observations she made, which contributed to DEN's authorised carer status being cancelled. The Tribunal was not persuaded that AM had any personal vendetta or bias against DEN. The Tribunal accepted AM's evidence as genuinely concerned to protect the children and address their needs. 3. AM was supervised by AH, a qualified social worker who has been working with vulnerable children, adults and families for about 10 years. AH told the Tribunal that the decision to remove the children from DEN's care was based on an accumulation of events over a period of time and made in consultation with FaCS. She said there were a number of discussions with FaCS about increasing support to DEN, and there had been a significant increase in respite care and other supports, but there were growing and significant concerns about DEN's capacity and ultimately it was considered that there was an unacceptable risk if the children remained in her care. The Tribunal accepted AH's evidence as also focussing on meeting the needs of the children. 4. GB said that throughout his interview with DEN, she sought to "portray herself as being unjustly 'punished'" by the Respondent. He said discussions around the impact of her actions on the children remained "limited, seeking mainly to deny allegations or justify her actions when acknowledging she had contravened Court Orders". 5. The Tribunal is concerned that DEN appears to have limited insight into how her actions contributed to the genuine concerns identified by the Respondent and the circumstances that eventually led the Respondent to make the decision to cancel her authorised carer status and remove the children from her care. DEN's criticism of the expert report 1. The parties agreed to the appointment of an independent expert. GB was asked by letter from DEN's solicitor to "complete a thorough independent assessment of (DEN's) capacity to provide out of home care as authorised carer. The Benevolent Society utilises the Step by Step tool to assess applicants and review authorised carers. Authorised carers must meet the requirements of the Children's Guardian NSW Child Safe Standards for Permanent Care. Noting these requirements, please provide an express opinion as to whether (DEN) should be authorised as an authorised carer and if so, whether there should be any conditions imposed on her authorisation. [Please also advise if you identify any matters to address or areas of carer training that (DEN) may need to undertake.]". The letter goes on to list a number of specific issues which relate to the children that GB is asked to address. 2. GB is a registered clinical psychologist. He has graduate and post graduate degrees in Psychology and Clinical Psychology. In addition to clinical positions he has been appointed to the Children's Court Clinic since its inception in 2001. 3. DEN's solicitor submitted that GB had not undertaken a "carer's review" as he was briefed to do and this was a deficit in his report. Also that GB had not taken into account attributes or positive aspects of DEN and his findings were based on a pre-conceived view that grandparents could not be full-time carers. GB was criticised for not taking a holistic view in his assessment and not giving sufficient weight to DEN having cared for the grandchildren for a considerable period of time when no concerns or problems were identified. 4. Under cross examination GB gave a detailed account of how he assessed DEN's capacity to care for the children. When asked about the first 4 years of the children's placement with DEN, GB said that there was evidence in the documents he reviewed of behavioural programs that were started and not completed, and concerns about lack of engagement with homework. He wondered whether these concerns went "under the radar". When asked if DEN could manage the current needs of the children he responded "not at present", which he said was based on his review of the documents and his assessment of DEN. 5. GB was asked whether he had addressed in his report the request to provide an assessment of DEN's capacity to provide out of home care with reference to the Step by Step tool used by the Respondent. He said that he might not have articulated it to that degree but the Step by Step tool was commonly used to assess carer competency and he was familiar with it. His view is that, based on his assessment and review, that DEN's authorised carer status should not be reinstated. 6. GB's report lists the conditions upon which his report is based. It includes the documentary material provided by DEN's solicitor and his psychological assessment of DEN. GB also interviewed: DEN's partner; JB; and both of the children. GB observed DEN and her partner with S and J. At the Hearing GB told the Tribunal he was also provided with a further bundle of documents from both parties. He said this material did not change or effect his conclusions or recommendations in any substantial way, but he sought to clarify one particular aspect. In his report he entertained the possibility that DEN could provide occasional respite care for the grandchildren. He said he would now take a more cautious approach to this particular recommendation on the basis of the additional material provided to him. He remained supportive of contact between DEN and the children but he was concerned about lengthy unsupervised contact. 7. GB addresses in his report the specific questions that were put to him in his brief. It is clear from GB's evidence that he does not consider that DEN has the capacity to provide parental care for the children. 8. The Tribunal accepted GB's evidence and his overall assessment of DEN's capacity and the risk that would be posed if the children were returned to her care. Views expressed by the children 1. GB said that both children expressed a view that their preference is to live with DEN. S indicated that DEN was "family" and prefers DEN to JB as she has lived with DEN most of her life. GB said in his report that "importantly, based on her interview, it appeared that (JB) is relatively firmer (though reportedly in a far more calm manner) than (DEN) and has placed more boundaries on when and how (S) access the Internet and communicates with family. This, this may be a contributing factor to (S's) preference for (DEN) who reportedly allows (S) unlimited access to the Internet without any supervision". 2. The Guardian Ad Litem said that when he asked the children where they wanted to live, S said she wanted to live with DEN but J indicated a preference for JB. 3. GB said that neither of the children indicated any concerns about the current level of contact with DEN. S said if she continued to live with JB she would not be sad as she presumed she would continue to have regular contact with DEN. 4. The views of the children are an important consideration as are the understandable feelings they have towards DEN. However the safety and welfare of the children must be the paramount consideration and the Tribunal is satisfied that there would be an unacceptable risk if the children were to return to DEN's care. Cultural and religious considerations 1. The Guardian Ad Litem said the children must be in a safe placement and "must not be allowed to lose their identity as this will have a negative long-term impact on their self-esteem". He said it was also important that the siblings stay together. 2. The Respondent agrees the cultural needs of the children are important and foreshadows that the primary source of this can be DEN. The Respondent said it is happy to engage and enhance the Cultural Plan that is in place. Current placement 1. DEN is critical of the children's current placement. She said she is concerned the children are afforded little time to complete their homework. This is not supported by the balance of evidence presented to the Tribunal. 2. DEN said she holds additional concerns for the permanency of this arrangement because JB is a single carer and the demands placed on her. DEN says JB is an "inexperienced carer" who has not had any children of her own. She said she queries why the Respondent have placed S and J with JB, given that the Respondent has told her that "on a number of occasions: that they have "high needs". 3. JB states in her affidavit that she works as a Human Resources Director and has worked in that profession for 25 years. She has undertaken foster care training and was actively involved with her nieces in their upbringing. She said in the five months she has been caring for S and J, she has been "acutely aware of the complexity of their mental and physical health and emotional and social needs". 4. GB interviewed JB and reports that JB "evidenced a reasonably informed understanding" of the needs of the children together with a "sensitive and nuanced approach to managing the needs of both children as they adjust to living in her care". 5. The Tribunal is satisfied on the evidence available that JB is providing adequate and appropriate care of the children. Conclusion 1. A principle of intervention under the Care and Protection Act is that removal of a child from a care giver may only occur where it is necessary to protect the child from the risk of serious harm. In deciding what action is necessary, the course to be followed must be the least intrusive intervention in the life of the child and family and consistent with the paramount concern to protect the child from harm and promote the child's development. 2. DEN's view is that the Respondent was overly critical of her and did not give her an opportunity to demonstrate that she could address their concerns prior to deciding to cancel her status as an authorised carer and to remove the children. The Tribunal is not persuaded that this was the case. 3. The Tribunal found that the Respondent had taken necessary steps to support DEN. But it became increasingly apparent that DEN was struggling to care for the children. This seemed to be at a time when the children's needs were escalating and DEN's mental and physical health was deteriorating. The Respondent was obliged to take action to protect the children and ensure that their needs are met. 4. DEN has not persuaded the Tribunal that she is able to resume parental care for the children. DEN has not sufficiently addressed the deficits and risks identified by GB, who provides the only independent expert evidence of DEN's current capacity to care for the children. The correct and preferable decision 1. The correct and preferable decision is to uphold the Respondent's decisions to cancel her status as an authorised carer and to remove the children from her care. 2. The Tribunal does not have power to make any Orders for contact with the children but recommends that DEN remain having regular contact with the children as assessed to be suitable and in the best interests of the children. Orders 1. The decision of the respondent to remove from DEN the responsibility for the daily care and control of "S" and "J" is affirmed. 2. The decision of the respondent to cancel DEN's authorisation as an authorised carer is affirmed. ********** 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: 26 June 2018