M v Minister for Community Services [1999] NSWADT 2 (9 February 1999)

Last Updated: 25 February 1999

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION: M v Minister for Community Services [1999] NSWADT 2

REVISION DATE:

DIVISION: Community Services

APPLICANT:

M

RESPONDENT:

Minister for Community Services

FILE NUMBERS: 290

HEARING DATES: 18/12/98

SUBMISSIONS CLOSED: 18/12/1998

DECISION DATE: 09/02/1999

JUDICIAL MEMBER: Nancy Hennessy Deputy President

LAY MEMBER: Linda Monoghan-Nagle Member

LAY MEMBER: Deborah Brennan Member

APPLICANT KEYWORDS: Guardianship Application for review of Minister's decision to refuse to terminate the guardianship of two wards

MATTER FOR DECISION: Principal matter

PRIMARY LEGISLATION CITED: Children (Care and Protection) Act 1987

APPLICANT REPRESENTATIVE: unrepresented

RESPONDENT REPRESENTATIVE: unrepresented

ORDERS: Minister's decision to refuse to terminate guardianship of two wards affirmed.

DECISION:

Background to appeal

1 On 22 September 1998, M lodged an appeal against a decision of the Department of Community Services (the Department) refusing to return two of her children to her care. The children, A (aged 4) and B (aged 2 ½) were made wards of the state on 14 August 1996 for 12 months and placed in foster care. They were made wards for a further two years on 19 November 1997. The Department attempted to restore the boys to M's care on 4 March 1998 but removed them again on 5 August 1998. A and B are still in foster care.

Issues and legislation

2 Jurisdiction. Under s 40(1)(a) of the Community Services (Complaints, Appeals and Monitoring) Act 1993 (CAMA) a person may make an appeal to the Tribunal "on any ground expressly provided for by the community welfare legislation." The ground in this appeal is a decision of the Minister for Community Services to refuse to terminate her guardianship of a ward (Section 112(1)(e) of the Children (Care and Protection) Act 1987.

3 The Tribunal's powers. Appeals to the Tribunal are by way of a new hearing (CAMA s.45). The Tribunal has to consider all the material available to it and determine what the correct or 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 appealed against;

· vary the decision;

· set aside the decision and make a decision in substitution for the decision; or

· require the Minister to reconsider the decision in accordance with the directions of the Tribunal.

4 Principles guiding the Tribunal. The Tribunal is required to treat the welfare and interests of the children as its paramount consideration, and must have regard to their wishes if it is possible to determine what they are (Section 89(1) and (2) Children (Care and Protection) Act 1987). Consequently, the issue for the Tribunal to decide is whether it would promote A and B's welfare and be in their best interests for them to live with their natural mother or to remain in foster care. To ensure that their interests and wishes are known to the Tribunal we appointed a guardian ad litem, Anne Abbey, to represent them.

Evidence

5 M met R when she was 16 years old and was in a de facto relationship with him for 10 years. They had six children, one of whom died. All the others are now wards. A and B are the youngest of the children. According to the Department's files, R admitted frequently physically abusing the three older children. The files also reveal that M admitted being unable to protect them. The relationship between R and M ended in 1996. M is now in a de facto relationship with L and they have one child, a girl who is 6 months old.

6 In March 1998 the Department restored A and B to M's care and gave her financial and other support. These supports included the engagement of Campbelltown Family Support Service to work with M for 15 hours a week. Some of the goals of this service were to be a support person and advocate for M, to assist in implementing household routines and to implement behaviour management strategies in relation to the children. The Department also funded St Mary's Psychological Service to counsel M on a regular basis.

7 The Department made the decision not to return the children because of concerns including:

· ongoing instability of accommodation;

· M's reluctance to contact her children when they were in care;

· uncertainty about L's role and commitment to the relationship and the children; and

· uncertainty as to M's motivation and capacity to change.

8 Accommodation. During the five months that the boys were in their mother's care in 1998 they lived in three homes as well as three short term foster care or respite placements. In the view of District Officer, Pauline O'Neill, stability in carers and placement is a high priority especially given the age of the children. The Department interpreted these moves as reflecting a lack of motivation to find permanent accommodation.

9 M explained her difficulties by the fact that she had problems with her neighbours that meant that she had to move out. She moved in with her mother temporarily but this was not satisfactory because of the limited space available. She also gave birth to her daughter during this time and when she left hospital she and the boys went to live in L's one room flat. She said that if the baby woke, the other children woke as well and it was difficult to settle them all. On 5 August 1998 M asked the Department to provide the children with respite care until she found a house. It took her 6 weeks to find a suitable house.

10 Contact with the children. During the time the boys were in respite care, M did not contact them. She says that this was because she was too busy looking for a house. The Department maintains that M showed no initiative in contacting the children even though she had a mobile phone and lived, on and off, with her mother who has a phone.

11 L's role. M has only been living with L since their daughter's birth. L told the Tribunal that he worked long hours but usually had the weekends off. The Department was uncertain about the relationship between M and L and the role L would play if the two boys lived with them. Robyn Dolby and Judy Ungerer, child psychologists who conducted an assessment of L's relationship with M and the boys, concluded that L is still getting to know the boys but he was very accepting of them. M and L understood each others hardships but "are not in a relationship where intimate emotions are easily expressed and both seem to come from families where emotional constriction was a general style." "Each carries a history of traumatic experience which they haven't fully resolved which makes them vulnerable to distress. This is not a firm foundation for being able to support each other during hard times." Dolby and Ungerer concluded that relationship with the two children and M is still "essentially untested."

12 Harry Mayr, principal psychologist at St Mary's Psychological Services said in his report of 10 September 1998 that L's commitment to the relationship and the children is still a "slight mystery" partially because he is a quiet man and does not say much.

13 Motivation and capacity to change. The Department questions M's motivation and capacity to change. They say that in two meetings with Campbelltown Family Support, the worker, Jenny Field, questioned the service's ongoing involvement as M did not appear committed to the goals of the service.

14 Jenny Field worked with M for up to 15 hours a week. Her main aims were to integrate the children into the household, advise on discipline techniques and assist with household routine and budget. Most of the time was devoted to more practical assistance which was required in relation to a number of break ins and M's attempt to find accommodation. Ms Field prepared two reports which indicated that although M had a clear understanding of what she needed to do, she struggled with motivation. Ms Field put this down to a combination of having the children returned and practical difficulties with housing and other events. She said M relied on her quite a lot, although she took the initiative at times. In her opinion M has a lot of potential; she wants things to work with her children but she needs strong support. She could cope well with ongoing permanent support but it is a strong challenge for her to manage A and B plus the baby on a long term basis. When questioned by the Department Jenny Field agreed that she rang them with concerns that M was not meeting her goals.

15 M told the Tribunal that she feels better now, that she sleeps all night and eats three meals a day. She said she would need someone a couple of days a week to help with shopping and other household routines as well as respite care one weekend a month. She is happy to continue to see counsellors, attend play groups and visit her mother. She is also prepared to attend other courses such as self esteem or parenting courses.

16 Mr Mayr gave evidence that he has seen M since August 1997 approximately every 3 weeks. He said that he could see the benefits that counselling had brought for M including increased assertiveness and independence. But sometimes it "all gets too much" and she "becomes angry and annoyed and tends to blame the system, that is DOCS." He noted that M is going through considerable changes and adjustment at the moment with a young baby, a relatively new relationship and a new home. In 12 months time she should be much more stable and that would be a better time to consider returning the two children. If stabilisation continues during that time DOCS may consider a graduated return of the boys to her care. Meanwhile access needs to be frequent, at least twice a week.

17 Ungerer and Dolby assessed M's parenting skills as including: being able to read the boys' cues well, an ability to structure interactions so as to expand on the children's play and finding ways to make the interactions more personal. However they found that B related to Karen in a far less personal way than A. They concluded that M copes well when she has support and that she needs ongoing support.

Interests and wishes of A and B

18 Given the boys' ages Anne Abbey, the guardian ad litem, did not attempt to assess their wishes about where they would prefer to live. In her view the history of two failed restorations attempts indicates that the same outcome is likely if restoration is attempted again. She believed that M would need to demonstrate over at least 2 years that she is able to both care adequately for her daughter and resolve the issues which led to A and B being removed.

19 In relation to A and B, Harry Mayr wrote that "They do need long term, bonding, attachment and emotionally available adult(s) now - otherwise their long-term psychological and developmental progress may be hindered."

20 Ungerer and Dolby conducted a Strange Situation Attachment Assessment on A, B and M. They found that A's attachment to his mother is overall "insecure" but has a mixture of positive elements and some insecure elements. The presence of positive elements suggests that M is capable at times of responding appropriately and sensitively to A's needs. Other behaviours indicate that his attachment needs have at times, not been met. According to Dolby and Ungerer, the reason for this kind of attachment could be multiple experiences of placement away from his mother and from times when, due to her own distress, she may have been unable to meet his needs. B's attachment was assessed as more consistently insecure than A's.

Findings of fact

21 The Department's concerns about the ongoing instability of accommodation is justified. While this instability is partially attributable to factors beyond M's control, it is also partially attributable to her lack of motivation in securing long term, stable accommodation. M's failure to contact the boys on the phone, while not a significant factor in assessing her commitment to the children, does demonstrate her difficulty in putting herself in their shoes and imagining what the children must have felt like when their mother did not contact them for so long.

22 The Tribunal agrees that L's commitment to M and the children is untested and that his support cannot necessarily be assumed in the long term. For this reason the interests of the children need to be assessed exclusively on the basis of what M is able to offer.

23 The major factor in the Department's decision was their assessment of M's motivation and ability to provide a stable and caring environment for A and B in the long term. Despite M's commitment to A and B the evidence demonstrates that she has not been able to get herself organised or motivated enough to provide a secure and predictable environment for her children.

Overall assessments

24 Judy Ungerer recommended giving restoration another go with clear goals and a time limit of 6-8 months. However she recognised that the risk is that if another restoration attempt fails the children would be placed at an increased risk. If restoration is not attempted Ms Ungerer recommended regular (more than monthly) access with M for full days or overnight.

25 The Tribunal asked Harry Mayr to evaluate the options of a permanent foster placement for the boys as against returning them to M's care. He said that the Department should place the boys in care but keep open the option of returning them over the next two years and maintaining regular access during that time. In his view to return the boys now is not the best option because M's parenting skills still need a lot of work and she needs to be able to follow through on the goals set.

26 Anne Abbey told the Tribunal that based on her assessments and having listened to the evidence, the children should be placed in long term foster care with regular access to M for a full day, overnight or week-ends. She also recommended access with A and B's other siblings. She suggested that restoration should be kept open as an option and re-considered in six months time.

27 The Departmental officers concluded by repeating that they do not consider restoration to be in boys' best interests at this time. They would agree to monthly access for extended periods such as overnight or weekends and a further assessment in one or two years. The Department is willing to continue to provide psychological counselling and link M with Family Support Services. These services would be reviewed every three months.

Application of law and decision

28 The Tribunal must make a decision which gives paramount consideration to the welfare and interests of A and B. The Tribunal was particularly influenced by the evidence of Harry Mayr who has had a close and ongoing relationship with M for over 12 months. His view that the children should not be returned were supported by the guardian ad litem as well as the Department. Judy Ungerer was willing to recommend that the Department take the risk of another attempted restoration but the Tribunal believes that given M's history, she needs to be able to develop and consolidate her parenting and domestic abilities over an extended period before restoration should be considered again. Consequently the Tribunal affirms the Department's decision not to restore A and B to the care of their mother.

29 In making this decision we acknowledge the progress that M has made and her obvious commitment to and love for her children. The Department should also be congratulated on the significant effort they have made in supporting M.

Recommendations

30 The Tribunal also makes the following recommendations pursuant to s 47(5) of CAMA:

· Access of A and B to M should be monthly for long days or overnight.

· Counselling for M from St Mary's Psychological Services should be maintained.

· Practical assistance for M from Fairfield Parent Support Service should be continued subject to regular review.

I HEREBY CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF THE ADMINISTRATIVE DECISIONS TRIBUNAL.

REGISTRAR