Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DTE v Lifestyle Solutions (Aust) Ltd [2019] NSWCATAD 218 Hearing dates: 5 August 2019 Date of orders: 25 October 2019 Decision date: 25 October 2019 Jurisdiction: Administrative and Equal Opportunity Division Before: S Scarlett, Senior Member S Davison, General Member Decision: The Tribunal affirms the decision of the Respondent made on 14 December 2018 to remove the child known as WH from the care of the Applicants. Catchwords: ADMINISTRATIVE LAW – where administratively reviewable decision – where decision to remove from authorised carers the responsibility for the daily care and control of a child Legislation Cited: Administrative Decisions Review Act 1997 (NSW), s 63 Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 8, 9, 13, 138, 140, 245 Civil and Administrative Tribunal Act 2013 (NSW), s 65 Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW), s 28 Cases Cited: DDR v Lifestyle Solutions (Aust) Ltd [2017] NSWCATAD 266 Category: Principal judgment Parties: DTE (First Applicant) DTG (Second Applicant) Lifestyle Solutions (Aust) Ltd (Respondent) Maree Turner (Guardian ad Litem) Representation: Solicitors: First Applicant (Self Represented) Second Applicant (Self Represented) Marque Lawyers (Respondent) Hansen Legal (Guardian ad Litem) File Number(s): 2019/00074133 Publication restriction: In accordance with the provisions of section 65 of the Civil and Administrative Tribunal Act 2013 a person must not, except with the consent of the Tribunal, whether before or after the proceedings are disposed of, publish or broadcast the name of any person who appears as a witness before the Tribunal in any proceedings, or to whom any proceedings in the Tribunal relate, or who is mentioned or otherwise involved in any proceedings in the Tribunal. Note that a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. REASONS FOR DECISION 1. The Applicants in this matter, who are referred to by the pseudonyms "DTE" and "DTG", seek administrative review of a decision made by the Respondent under s 140 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) to remove a child, who is to be referred to by the pseudonym WH, from their care. 2. The Respondent opposes the Application and asks that the decision should be affirmed. Jurisdiction 1. The decision is an administratively reviewable decision which the Tribunal has the jurisdiction to review under s 245(1)(c) of the Children and Young Persons (Care and Protection) Act and s 28(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW). 2. The Tribunal has the jurisdiction to affirm the decision by virtue of s 63(3) of the Administrative Decisions Review Act 1997 (NSW). Background 1. The child WH was born on 26 November 2008. 2. In October 2012, the Children's Court of NSW ordered that all aspects of parental responsibility for WH and his siblings be granted to the Minister for Family and Community Services until each child attains the age of 18 years. 3. The Department of Family and Community Services placed WH and his elder brother, to be referred to as MH, with the Applicants as authorised carers that year. 4. In June 2015, the Respondent took over responsibility for the children from the Department of Family and Community Services. 5. The children's mother died in 2017. 6. On 12 September 2018, the Applicants advised the Respondent that they wished to relinquish care of the older boy, MH, with effect from 12 December 2019. He is 18 months older than WH and had been exhibiting behavioural problems. However, whilst the Respondent agreed to remove MH from the Applicants' care, they decided to remove WH as well, and place him in an alternative placement with his brother. The decision was confirmed by the Respondent on 23 November 2018, and on 14 December 2018, WH and MH were placed with other Authorised Carers. 7. On 25 December 2018, the Applicants made a written complaint to the Respondent about the decision to remove WH. On 16 January 2019, the Respondent rejected the complaint but engaged Marque Lawyers to conduct an internal review of the decision. 8. On 20 February 2019, Marque Lawyers informed the Applicants that their review of the decision supported the removal of WH. 9. On 5 March 2019, the Applicants applied for a stay of the decision and an order that WH should be returned to their care pending the Tribunal proceedings. The Stay Application was heard on 14 March and was dismissed. A Guardian ad Litem was appointed for the child WH. The Application was listed for final hearing on 5 August 2019. Evidence 1. The Applicants relied on a statement by DTE, who attended the hearing by telephone, and an affidavit by DTG, who attended in person. DTE was accompanied by the Applicants' son, D, who took the role of a McKenzie friend. 2. The Respondent relied on three statements by Sarah Thompson, the Senior Operations Manager of the Respondent. She was cross-examined by Ms Hansen for the Guardian ad Litem. 3. The Guardian ad Litem relied on her affidavit affirmed on 11 June 2019. She was not required for cross-examination. 4. The Respondent did not seek to cross-examine either of the Applicants. 5. The principal evidence of the Applicants came from the affidavit of DTG, affirmed on 3 May 2019. 6. In his affidavit, DTG stated that the child WH and his brothers MH and DH were placed in his care and that of his wife in February 2012. They relinquished the care of DH in December 2012, due to his "inappropriate behaviour" towards the other two boys. 7. He deposed that he and his wife had experienced difficulties in managing MH's behaviour, especially towards WH, including physical and verbal abuse. As a result they placed WH in a local Christian school and paid the necessary fees out of their own funds. 8. On 19 June 2018, he and his wife attended a case planning meeting with members of the staff of the Respondent, where no current concerns for WH were identified in his placement with the Applicants. 9. However, on 12 September 2018, DTE sent an email to the Respondent advising that she and her husband proposed to relinquish care of MH because of difficulties in managing his behaviour and "allegations made against [DTE] of psychological harm towards MH" (Affidavit of DTG 3 May 2019 paragraph [13]). 10. He deposed that on the same day, the Respondent replied to the email saying that a decision had been made to remove both children from the Applicants' care on 12 December. The reason given was that "As per placement principals (sic) and best practice siblings will be kept together" (Affidavit of DTG 3 May 2019 paragraph [15]). 11. DTG deposed that, after hearing of the Respondent's decision to remove both boys from the Applicants' care, WH expressed the view quite strongly that he did not wish to be removed from his current home. This information was conveyed to the Respondent in several emails between 25 November and 10 December 2018. 12. The children were placed with their new carers on 15 December 2018. 13. On 25 December, the Applicants were permitted to speak to WH and MH in a telephone conversation that was monitored by Ms Sarah Thompson. The Applicants complained that when they asked WH if he was happy in his new placement, Ms Thompson prevented the child from speaking any further on the subject. 14. In his affidavit, DTG set out the process that he and his wife followed to complain about the decision to remove WH from their care. They sought a review of the decision on 25 December 2018, which was refused on 16 January 2019. On 20 February 2019, they received a letter from Marque Lawyers, who had conducted their own review. The decision was again supported. 15. On 28 February 2019, the Applicants submitted a complaint to the NSW Ombudsman. The Ombudsman referred them to the Tribunal. 16. On 5 March 2019, the Applicants lodged their Application for Administrative Review with the Tribunal. 17. DTG set out in his affidavit the Applicants' efforts to have some contact with MH and WH between 3 January and 12 April 2019. They took exception to the Respondent's statement that the proposed visit would be cancelled if they asked WH any questions about his new placement. As it turned out, no contact visits took place. The Applicants were informed by email on 12 April that contact would be cancelled that afternoon. The reason that they were given was that the boys had been vey unsettled since WH spoke with Maree Turner, the Guardian ad Litem and had asked not to have contact with the Applicants until they felt more comfortable. 18. DTG deposed that the child WH was distressed when he was told that he would not be continuing at the Christian school which he had previously attended. He expressed the view that WH should undergo an independent psychological assessment to determine if his views on returning to the Applicants' care had changed. 19. DTE set out the Applicants' proposals if WH were to be restored to their care and also if he were not. 20. The Applicants' proposals if the child were not to be restored to their care were set out in paragraph [49] of the affidavit (summarised): 1. To pay the school fees so that the child could resume at the Christian school; 2. To provide the child with fortnightly respite care from after school on Friday until Sunday afternoon or Monday morning; 3. To take the child to church on Sundays; 4. To provide the child with respite care during school holidays; 5. To allow the child to attend contact visits with his brother MH; and 6. To continue to support WH to participate in contact visits with his other siblings who are in out of home care. 1. The Applicant DTE provided a statement dated 4 August 2019 in which she detailed meeting MH and WH that same day at a supermarket. She stated that the boys approached her and she had a brief conversation with them. 2. DTE also stated that she had previously met MH in June at that same supermarket. The child called out to her and they had a conversation before he went off after his carer. 3. DTE stated that: "(l)t is clear to me that both boys were happy to see me and communicate with me. On both occasions, the boys approached me (I did not approach them) and they were both happy to hold conversation." (Statement of DTE 4.8.2019 paragraph [11]). 1. Neither of the Applicants was cross-examined. 2. The Guardian ad Litem, Maree Turner, relied on an affidavit affirmed on 11 June 2019. 3. In her affidavit, Ms Turner described how the Respondent had sought to have her removed as Guardian ad Litem on the basis that WH did not wish to communicate with her, and therefore she would not be able to perform her role as Guardian ad Litem. 4. She denied the allegation that the child WH had been unsettled after speaking to her, saying that he did not convey any stress in talking to her and "he was not reticent in presenting his views." (Affidavit of M. Turner 11.6.2019 paragraph [8]). 5. Ms Turner went on to depose that breaking relationships between children and trusted adults is not in children's best interests and the negative impact of sudden removal from parents or carers and the importance of continuing relationships is common knowledge. 6. Her concern was that the child would think that the Applicants had abandoned him. However, she went on to depose: "Now that [WH] is settled in his new Placement and has said to me that he is happy there, I do not see any possibility of [WH] returning to the applicants." (Affidavit of M. Turner 11.6.2019 at [13]). 1. Ms Turner also expressed the opinion that WH should be able to have an ongoing relationship with the Applicants. She proposed an independent assessment of the child's views and wishes. 2. Ms Turner also offered to attend a mediation and speak with the child again if that would be considered useful. 3. Sarah Thompson, the Senior Operations Manager for the Respondent, had prepared three statements, dated 14 March, 23 May and 31 July 2019. Although the Applicants said that they did not wish to cross-examine her, Ms Hansen for the Guardian ad Litem wished to do so. 4. Ms Hansen asked Ms Thompson about the procedure for interviewing children when someone who is not their carer is present. She said she was not concerned about the possibility that the children might be influenced. She also said that the children WH and MH were definite that they did not want to go back to live with the Applicants, and that it would be better for the children to have the choice as to whether they wished to see the Applicants themselves. 5. In answer to a question from the Applicant DTG, she said that they would facilitate contact between the boys and the Applicants if the boys requested it. Legal Principles 1. The Respondent removed the child WH from the care of the Applicants and placed him with other carers under the provisions of s 140 of the Children and Young Persons (Care and Protection) Act 1998. The decision to remove the child is administratively reviewable by the Tribunal under s 245(1)(c) of the Act. 2. As was stated in DDR v Lifestyle Solutions (Aust) Ltd [2017] NSWCATAD 266 at [12]: "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: section 9(1) of the Children and Young Persons (Care and Protection) Act." 1. Subsection 63(1) of the Administrative Decisions Review Act 1997 sets out the way the Tribunal is to go about an administrative review: (1) In determining an application for an administrative review under this Act of an administratively 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. 1. As the solicitor for the Respondent has correctly submitted, the applicable written law to which the Tribunal is to have regard is contained in sections 8, 9 and 13 of the Children and Young Persons (Care and Protection) Act. 2. Section 8 sets out the objects of the Act, which are, inter alia, to provide children and young persons with such care and protection as is necessary for their safety, welfare and well-being, by providing them with long-term, safe, nurturing, stable and secure environments through permanent placement in accordance with permanent placement principles. 3. Section 9 of the Act sets out the principles for administration of the Act, in particular paragraph 9(2)(f), which states: If a child or young person is placed in out-of-home care, the child or young person is entitled to a safe, nurturing, stable and secure environment. Unless it is contrary to his or her best interests, and taking into account the wishes of the child or young person, this will include the retention by the child or young person of relationships with people significant to the child or young person, including birth or adoptive parents, siblings, extended family, peers, family friends and community. 1. Section 13 contains the principles for placement of Aboriginal and Torres Strait Islander children and young persons. Subsection 13(1) sets out the general order for placement of Aboriginal or Torres Strait Islander children, summarised as being, in descending order: 1. A member of the child's or young person's extended family or kinship group; 2. A member of the Aboriginal or Torres Strait Islander community to which the child or young person belongs; 3. A member of some other Aboriginal or Torres Strait Islander family residing in the vicinity of the child's or young person's usual place of residence; or 4. A suitable person approved by the Secretary after consultation with the child's or young person's extended family or kinship group and appropriate Aboriginal and Torres Strait Islander organisations. 1. However, in this case s 13(1) does not apply to WH, as he was placed with carers who are not Aboriginal. Subsection 13(6) therefore applies. It states: The following principles are to determine the choice of a carer if an Aboriginal or Torres Strait Islander child or young person is placed with a carer who is not an Aboriginal or Torres Strait Islander: (a) Subject to the best interests of the child or young person, a fundamental objective is to be the reunion of the child or young person with his or her family or Aboriginal or Torres Strait Islander community. (b) Continuing contact must be ensured between the child or young person and his or her Aboriginal or Torres Strait Islander family, community and culture. These principles are subject to subsection (2). 1. Subsection (2) states: Relevance of self-identification and expressed wishes of child or young person In determining where a child or young person is to be placed, account is to be taken of whether the child or young person identifies as an Aboriginal or Torres Strait Islander and the expressed wishes of the child or young person. Submission 1. Mr Bradley, for the Respondent, submitted that no decision had been made by the Respondent about ongoing contact between the Applicants and WH, so that issue is not before the Tribunal. All that is before the Tribunal arises from the decision of the Respondent to remove WH from the care of the Applicants. The Respondent asks the Tribunal to affirm the decision not to return the child to the care of the Applicants. 2. Mr Bradley submitted that WH is a child aged ten who is one of seven siblings. The child's mother died in 2017. 3. The Respondent, Lifestyle Solutions, is a designated agency under the Children and Young Persons (Care and Protection) Act. 4. The triggering event took place in late September 2018 when the Applicants decided to relinquish care of WH's brother MH because of MH's behaviour. The Respondent then decided to remove WH as well as MH. Both children were placed with other carers, following the general policy that siblings in out-of-home care should be kept together as far as possible. 5. The Applicants' decision to relinquish the care of MH led to his being placed with new carers, which meant that WH had to be placed with the same carers if the siblings were to be kept together. 6. It was submitted by the Respondent that there are no circumstances militating against the mandatory requirements of s 13(6) of the Children and Young Persons (Care and Protection) Act. The Respondent also submitted that its decision was also the preferable decision and that the child is happy and well in his new placement. 7. The Respondent submitted that the relationship between the two brothers has improved over the previous eight months, and that if the decision were to be set aside, it would not be in the subject child's best interests. If WH were returned to the Applicants' care he would be separated from his brother. It was submitted that WH had shown distress at the prospect of being separated from him. The Carer Review Report discloses that WH does not wish to be separated from MH. Further, he misses his foster sister but does not want to have contact with the other members of the family. 8. In short, it is the Respondent's position that WH is happy and well where he is and also wants to stay with his brother, and that it would be detrimental to his best interests to be separated from his brother. 9. It was submitted by the Respondent that there is no evidence that there is something better for WH than his current placement and separation of the two brothers would be detrimental to both of them. 10. Ms Hansen, for the Guardian ad Litem, submitted that the Guardian ad Litem did not cavil with the need for the child to stay in the current placement with his brother. He is settled and it is in his best interests to stay where he is. 11. However, Ms Hansen noted that the child had not had any contact for eight months with the Applicants, who had been, effectively, his mother and father for seven years. 12. Ms Hansen referred the Tribunal to the provisions of Sections 9 and 10 of the Children and Young Persons (Care and Protection) Act. In particular, she referred to paragraph 9(2)(f), quoted at [53] above, saying that there is a need for both boys to have a continuing relationship with their former carers. 13. Whilst she conceded that there is no application for contact before the Tribunal, there had not been an independent person to ask the child about his wishes. Ms Hansen referred to a "closed system" where there had been no interview with the child where the current carers were not present. 14. It was submitted by the Applicants that contact should be arranged between the child and the Applicants. The Guardian ad Litem supported contact with the Applicants and noted that, as at the date of the hearing, there had been no independent assessment of the child's views about ongoing contact. 15. The Applicants' son D made submissions on their behalf, including in relation to the appropriateness and reasonableness of the decision to remove WH and the nature and level of care provided by the Applicants to WH. He noted that there was a clear difference between the parties as to the factual issue of the child's views including on whether he was happy in his new placement. Conclusions 1. The Tribunal is required by s 63(1) of the Administrative Decisions Review Act to decide what is the correct and preferable decision at the time the matter is determined, having regard both to the relevant factual material and the applicable law, being ss 8, 9 and 13 of the Children and Young Persons (Care and Protection) Act. 2. In this case, the facts are that the Applicants made the decision to relinquish the care of the child MH, the older brother of the subject child WH, because of MH's behaviour. The Respondent then made the decision to remove both children and place them with another set of carers, on the principle that it would not be in either of the children's best interests that they should be separated from each other. 3. It is the Respondent's contention that the children are happy and settled in their new placement and have expressed a reluctance to have any contact with the Applicants at this stage. It is also the Respondent's contention that the children's relationship with each other has improved significantly and they do not wish to be separated from each other. 4. The Guardian ad Litem concedes that the child WH is happy and settled where he is and does not wish to be separated from his brother, and that it is therefore conceded that it is in his best interests to remain in his current placement. However, the Guardian ad Litem is of the view that WH should have some ongoing contact with the Applicants, his former carers, noting that there is no independent evidence that he does not wish to have contact with them at this stage. 5. The Applicants seek that WH should be restored to their care, or, if that is not to happen, that they should have ongoing contact. 6. The Applicants made the decision that they should relinquish the care of MH because of his behaviour and to protect WH. It was never their intention to relinquish the care of both boys. They seek that WH should be restored to their care, although that would mean that the boys would be separated. 7. The Respondent made the decision to remove both boys so that they would remain together, relying on the provisions of s 13(6) of the Act, which is couched in mandatory terms. 8. It is a fact that the two children are brothers and are Aboriginal. There is evidence that WH wishes to remain living with his brother. 9. The Children and Young Persons (Care and Protection) Act provides clear directions on how the care of children and young persons is to be determined. Relevant here are the objectives of the Act: 8 What are the objects of this Act? (a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them (a1) recognition that the primary means of providing for the safety, welfare and well-being of children and young persons is by providing them with long-term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles. 1. The permanent placement principles, in turn, provide at s 13(6)(a) that a fundamental objective when considering placement of a child or young person in the care of a person who is not an Aboriginal or Torres Strait Islander, is: …reunion of the child or young person with his or her family or Aboriginal or Torres Strait Islander community. Put simply, the decision of the Tribunal requires it to consider whether there is any reason why the two Aboriginal boys should not be kept together as required by s 13(6)(a). 1. The Applicants did not provide evidence as to why the requirements of subsection 13(6) of the Act should not be followed. 2. The Tribunal is also satisfied that the decision to keep the boys together in their current placement is the preferable decision. If the decision were to be set aside and WH were to be returned to the care of the Applicants, this would have a disruptive effect on him, and separate him from his brother. It is conceded by the Guardian ad Litem that he is well settled in his current placement. 3. The Tribunal's decision must reflect the correct and preferable decision as at the date that it makes its decision. As such, the decision to affirm the decision to remove WH should not be interpreted as any reflection on the suitability or otherwise of the care provided by the Applicants for WH. 4. The Respondent submits that the Tribunal should also take into account that the Respondent is currently considering revoking the Applicants' carer authorisation. If the child were to be restored to the Applicants' care and their carer authorisation were to be subsequently revoked, it would follow that he would have to be removed again, which would cause more disruption. 5. While the Respondent may be entertaining such a decision, at the time of hearing, the Applicants' carer authorisation had not been revoked. The Tribunal should only act on established fact, not on supposition or conjecture. As such, the intentions of the Respondent have been given no weight in the decision. 6. It is a source of grievance to the Applicants that there are no arrangements in place for them to have ongoing contact with either of the children. The Guardian ad Litem submits that it would be in the children's best interests for them to do so and notes that there is no independent evidence of the children's reluctance to have contact with the Applicants at the present time. 7. However, the Applicants' case was for the restoration of the child WH to their care and there was no application before the Tribunal for the Applicants to have contact with either child. As such, the Tribunal is unable to make a determination on future contact. Order 1. The Tribunal affirms the decision of the Respondent made on 14 December 2018 to remove the child known as WH from the care of the Applicants. ********** 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: 25 October 2019