SL v Minister for Community Services [2005] NSWADT 228 (7 October 2005)

Last Updated: 7 October 2005

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL COMMUNITY SERVICES DIVISION

CITATION: SL v Minister for Community Services [2005] NSWADT 228


PARTIES: APPLICANT
Mr & Mrs SL
RESPONDENT
Minister for Community Services



FILE NUMBERS: 054022

HEARING DATES: 02/06/2005, 11, 12 & 19/08/2005

SUBMISSIONS CLOSED: 10/09/2005



DECISION DATE: 07/10/2005

BEFORE: Britton A - Judicial MemberSmyth M - Judicial MemberMoss J - Non Judical Member





LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Children and Young Persons (Care and Protection) Act 1998
Community Services (Complaints, Reviews and Monitoring) Act 1993

CASES CITED: McDonald v Guardianship Administration Board [1993] 1 VR 521
YG & GG v Minister for Community Services [2002] NSWCA 247

APPLICATION: Removal of children from authorised carer

MATTER FOR DECISION: Principal matter


APPLICANT REPRESENTATIVE: APPLICANT
H Ginges, solicitor

RESPONDENT REPRESENTATIVE: RESPONDENT
E Robertson, solicitor

ORDERS: The decision to remove the children who are the subject of this application is affirmed.


Reasons for Decision:

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(1A) This section applies only to the following:

(a) proceedings in the Community Services Division of the Tribunal,

(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,

(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983

(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.
(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a) who appears as a witness before the Tribunal in any proceedings, or

(b) to whom any proceedings before the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,
whether before or after the proceedings are disposed of.
Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(3) For the purposes of this section, 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 On 25 May 2005, three siblings aged ten, eight and six, were removed from the care of their foster carers by the Department of Community Services. The children had lived with the carers, the Applicants in these proceedings, since September 2003. The Applicants seek a review of the decision to remove the children.

2 On 2 June 2005, on the application of the carers, the Tribunal ordered that the decision to remove the children be stayed providing the Applicants gave a number of Undertakings previously requested by the Department. The following day, the Applicants gave those Undertakings and the children were restored to their care where they remain.

3 The Department argues that the risks involved in leaving the children with the Applicants far outweigh any potential risks in changing the placement. The Guardian ad litem appointed to represent the children in these proceedings agrees with the Department that the children should be removed and argues that the Applicants do not understand the importance to the children of their birth mother and that their "rigid family philosophy ... would be likely to penalise them [the children] unless they, albeit progressively, abandoned their birth mother". The Applicants argue that the children’s best interests would be served if they are allowed to remain in the stable and loving home that they have provided for the past two years. They argue that there is no basis to support the contention that they are dismissive of the role of the birth mother.

Procedural matters

4 The Tribunal has the power to review the decision to remove the children: (Children and Young Persons (Care and Protection) Act 1998 (Care and Protection Act), s 245 (1)(c) read in conjunction with the Administrative Decisions Tribunal Act 1997, s 38 and s 40(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993).

5 The proceedings were heard over three days. The Applicants and the Department were legally represented. All parties made written submissions.

6 In these reasons, because of the sensitivity of this matter, we have decided not to publish any details that could identify the Applicants, the children or their biological mother. In these reasons we refer to the Applicants as Mr and Mrs SL; the eldest girl, who is aged ten, as SM; the middle child, a girl aged eight, as SN, and their brother, who is aged six, as SO. The proposed foster carers are referred to as Mr and Mrs SQ. For ease of reference we attach a table setting out these pseudonyms given.

Background

7 In January 2001, the Children’s Court ordered that the Minister for Community Services be given parental responsibility for the three children who are the subject of this application. In September 2003, all children were placed in the care of the Applicants, a married couple in their late twenties. Before that, they had lived with an elderly couple, Mr and Mrs SQ, for over 12 months. DoCS advise that if the decision under review is affirmed, the children would again be placed in the care of the SQ’s.

8 Since being placed in care in October 2000, the children have had supervised two-hour weekly visits with their mother.

9 The Minister also has parental responsibility for the children’s older brother who is now aged 16. He has been at boarding school for the past 12 months and, as of this year, spends school holidays with his mother.

10 In mid-2004, the Applicants decided for financial and family reasons to move to Queensland and take up an offer by Mrs SL’s mother to build a home on land she would make available to them. The Applicants approached the children’s mother and asked if she would consent to adoption and to the move to Queensland. The mother initially supported the idea but soon after changed her mind. DoCS, on learning of the proposal, sought an opinion from psychologist, Teresa Lindfield, who recommended in a report dated 11 October 2004 that neither the adoption nor the proposed move proceed.

11 Following receipt of Ms Lindfield’s report DoCS, in early 2005, engaged two of its officers, Vanessa Gonzales and Bronwen Smith, to prepare a Risk of Harm assessment. That assessment became the basis for various Undertakings that DoCS drafted and requested the Applicants sign. In final form the Undertakings obliged the Applicants:

Not to use physical punishment to discipline the children.

To support and encourage the children to maintain relationships with their birth family.

Not to speak negatively about the children’s birth family.

Not to discuss adult issues with the children including adoption or a move to Queensland.

Not to denigrate the Department in the presence of the children.

To participate in family therapy.

To work cooperatively with the Department.

12 In addition, the Undertakings required Mrs SL to release her medical records to DoCS.

13 The Applicants’ failure to sign those Undertakings was the trigger for the decision to remove the children.

14 The Applicants contend that any delay on their part was because of the form of the original Undertakings, which DoCs itself later stated required amendment. The background to the negotiations surrounding the Undertakings was set out in the reasons given in the stay proceedings, a transcript of which has been issued to the parties.

15 It was a condition of the stay that the carers sign the Undertakings, which they did the day following the Tribunal’s orders, on 3 June 2005.

The Birth mother

16 The children’s mother was called by DoCS to give evidence in these proceedings. She said it was her intention to apply to have the children returned to her care in the near future. She claimed she had not done so to date or raised the matter with DoCS as she could not afford a lawyer.

17 She said that when she relinquished the care of her children in September 2000, she was a "mess", heavily reliant on alcohol and drugs. Since that time she has been in regular contact with all the children except for a four-month period in early 2005. Contact recommenced in May 2005 and since then has been regular and without incident.

18 Ms Lindfield believes that all the children have a significant relationship with their mother and that the girls’ primary attachment is to her.

19 DoCS and the GAL question the ability of the Applicants to understand and to support the need for the children to maintain a relationship with their mother. DoCS points to a number of examples which it contends indicate that the Applicants do not fully appreciate the importance of the children’s relationship with their mother: the alleged obstacles to access visits and the subsequent refusal of the children to see their mother; the alleged instruction that the children not call their mother "Mum"; the adoption proposal, and various comments made by Mrs SL about the birth mother.

20 Girls refuse to see birth mother. The girls reported to DoCS in January 2005 that they no longer wished to see their mother. In April 2005, the eldest girl, SM, wrote to her mother and enclosed a list of rules prepared by her sister. She wrote, "Why do you want us back after a few years now?" She also asked why her younger brother, SO, had been put up for adoption. In addition SM accused her mother of getting drunk and "having sex all the time". SN’s rules included no smoking, drinking, asking questions, fighting, lying and "I call you [mother’s first name]".

21 The next month the mother responded and contact resumed soon after. The mother gave evidence that SM told her shortly after the visits resumed that she had missed her.

22 In separate interviews with DoCS’ officers in February 2005, both girls said that their mother had lied to them about going to Queensland.

23 The Applicants deny playing any part in the girls’ decision not to see their mother and also deny saying negative things about her in their presence. In an interview with Departmental officers in February 2005, Mrs SL claimed that it had been SM who had initiated discussions about concerns she had about her mother. Mrs SL said she believed it was important that the children could talk about these things if they wanted as they felt unable to talk to DoCS. She agreed that she encouraged SM to write to her mother but otherwise had no input into her correspondence with the mother. Mrs SL stated that it was her belief that the girls had decided not to see their mother because "they just don’t want that part of their life any more. They don’t want the bad part anymore. They just want to be normal."

24 In cross-examination, Mrs SL denied prompting the children to "dob in the birth mother".

25 Girls refuse to call birth mother Mum. According to the birth mother, SN told her that Mrs SL had insisted she put in the rule about calling her by her first name.

26 It is not in issue that the children started calling the carers mum and dad shortly after moving to the placement. The Applicants deny encouraging the children to do so and claim it was initiated by SM and that the younger children followed. Both deny encouraging the children to call their mother by her first name or having any input into any of SN’s rules.

27 In an interview with the GAL in July of this year, SM said "I call her [birth’s mother first name] because otherwise it gets confusing. I don’t say mum [birth’s mother first name] or mum [foster mother’s first name] it’s too hard, I used to, but mum [foster mother] used to say aren’t I your mum...she doesn’t like it if we say real mum because it’s hard knowing that [birth mother] is our biological mum and it’s hard for her because um... we say real mum when mum and dad are going to be there forever... [foster mother] finds it really hard..."

28 Obstacles to access. DoCS asserts that the carers made visits with the mother difficult throughout 2004 by first, enrolling the children in numerous after school activities and second, making demands on the mother, such as bathing and changing the children into their pyjamas, which interfered with the children’s enjoyment of the visits.

29 Mrs SL asserts it has been the Department and the mother who have been inflexible in the contact arrangements. She claims the girls had been insistent that they attend Girl Guides, which clashed with their scheduled Tuesday visits with their mother and that she had requested an alternative time but DoCS refused.

30 Mrs SL suggested to DoCS in 2004 that it explore whether a more suitable access arrangement to the current weekly two-hour visits could be found. In her view, the children and their mother would benefit if the visits were less frequent but for longer duration, for example, overnight stays.

31 It is argued for the Applicants that this is not only a sensible proposition but consistent with the contact orders made by the Children’s Court which they had not seen before these proceedings.

32 Applicants’ relationship with birth mother. It is not in issue that the relationship between the carers and the birth mother had been good until about mid-2004 when the adoption issue was raised. Before then, on occasion, the carers had invited the mother to join them on family picnics and dropped in with the children to see her at work.

33 Mrs SL told DoCS in an interview in February 2005, that she felt "indifferent" to the birth mother. She said she believed the birth mother did not nurture the kids enough. "She sits there sometimes when they watch a video but she doesn’t nurture them, she doesn’t give them the little things...they say they don’t want to live with [birth mother] ...they say they can remember things". She said she gets upset "for the kids sake" when the mother cancels access visits.

34 Mrs SL told the Tribunal that she saw the relationship between the mother and the children as akin to a relationship with a special relative you might see every few months or so. She gave evidence of efforts she had made, beyond that required by DoCS, to involve the mother in the lives of the children, for example, by sending her school photographs and buying presents for the children to give her.

35 Mrs SL denied trying to exclude the mother from the children’s lives and said her philosophy was, as she kept telling SN, "the more people you love the more people love you back".

36 Future access. Both carers gave evidence that if it was decided that the children should be restored to their mother they would support that and would be happy to work towards that end and/or share the care of the children with her. This is consistent with what they told Ms Lindfield in September 2004 and DoCS in February 2005.

37 In an affidavit filed in these proceedings, the mother stated that she was not confident that the Applicants would support her relationship with her children but in cross-examination said she was comforted from the statements made by the Applicants that they would support the children being returned to her care. Nevertheless, she had doubts that this would work. She said she was more confident that her relationship would be maintained if, as proposed, the children went to live with Mr and Mrs SQ.

38 Findings and Conclusions. One of the more difficult issues to determine in this matter is whether the Applicants will be true to their word and support the children in their relationship with their mother. Before considering this, it is necessary to deal briefly with the relevance of the mother’s announcement that she intends to apply to have the children restored to her care. It is of course impossible to know with any certainty whether she will make that application or, if so, whether it will be successful. While the restoration of the children to the mother might be ultimately in their best interests, this is not a matter for us to decide. The issue here is whether the Applicants can and will support the children in maintaining a relationship with their mother in whatever form that might take in the future. These proceedings are not a contest between the mother and the Applicants. Our focus must remain on whether it is in the children’s best interests to remain with the Applicants, at this point in time.

39 We think that the Applicants have probably learnt from the events leading up to these proceedings and now recognise that, if they want the children to remain in their care, they have no option but to co-operate with arrangements put in place by DoCS. What is more difficult to say is whether there is a risk that, consciously or otherwise, they might undermine the relationship between the children and their mother. DoCS believes that, at least as far as Mrs SL is concerned, this has already happened and point to the girls’ correspondence with their mother in the early part of 2005 and their uncharacteristic decision not to see her.

40 It is unlikely, as we understand DoCS to suggest, that the girls wrote to their mother in the terms they did or refused to see her on the urging of Mrs SL alone. While it is uncontroversial that both girls have a strong bond with their mother, it is equally plausible, as SM’s letter would suggest, that they might also be starting to ask why their mother relinquished them in the first place and might be starting to contrast the chaotic life with her with the relative stability of life with the Applicants. While we accept the mother’s account that the younger of the girls told her that she had put in the "I call you [first name]" rule on Mrs SL’s urging, it is equally possible that she said this to spare her mother’s feelings. This is the only direct evidence to indicate that Mrs SL directed the girls on what to write.

41 Nevertheless, it cannot be ignored that the girls’ refusal to see their mother came close on the heels of the proposed move to Queensland. When interviewed by DoCS in February 2005, both girls blamed their mother for standing in the way of the move. SN claimed that her mother had lied to her by changing her mind about the adoption. This indicates, at best, that the Applicants took no steps to disavow the children of the idea that their mother was in part responsible for the move not going ahead.

42 The record of interview with Mrs SL and Ms Gonzales in February of this year is, in our view, probably the best evidence of Mrs SL’s real thoughts about the mother. It makes clear that Mrs SL does not think highly of her commitment as a parent. We suspect negative views about the biological parents of children in their care are not uncommon among foster carers. They are required to accommodate a birth parent(s) who may well hold conflicting aspirations for the children and/or have a different parenting style. The carers have taken us to a number of studies which indicate that many foster parents report feeling threatened by, and have ambivalent feelings towards, the birth parent(s). (See Waterhouse S. (1999). How Foster carers view contact in M. Hill (Ed), Signposts in Fostering (pp 250-262). London: British Association for Fostering).

43 It would too much to demand of foster carers that they like and respect the biological parent(s) of the children placed in their care. The issue is not so much what the Applicants think of the mother but whether any negative views they might hold will be disclosed to the children.

44 Given the views held by Mrs SL about the mother, it is certainly possible that, despite her claim to the contrary, that she will, consciously or otherwise, indicate to the children that she does not approve of their mother and might frustrate increased contact. If we were satisfied that such conduct is probable, rather than merely possible, we would have no hesitation in upholding the decision under review.

45 Much of the real significance of Ms Lindfield’s reports is to be found in the interviews with Mrs SL and the children concerning their relationship with their mother. The weight of her evidence suggests that, consciously or unconsciously, Mrs SL has been attempting to detach the children from their mother, to the extent that she sought to persuade their mother to allow her to adopt them and also sought to move them to Queensland where, in practical terms, they would have had little opportunity to maintain regular contact with their mother. Mrs SL thinks that it is in the best interests of the children that she adopts them. If she genuinely believes this to be the case, that, in one sense, does her credit. Ms Lindfield, however, implies that her real psychological agenda is probably that she wants exclusive custody of the children because they meet an unfulfilled need on her part. Too much should not be made of this. The most devoted and unconditionally loving of parents will often speak of the pleasure that their children give them – one of the rewards of being a kind and unselfish parent is a return of affection from the child or children and a sense of fulfilment. While foster carers are expected to remain disinterested on one level, it would defy human nature if good and affectionate people caring for children did not form close attachments to them. Attachment works both ways.

46 Nevertheless, the evidence indicates that it is more likely than not that it would be a struggle for Mrs SL to accommodate the mother in any significant way in the lives of the children. In our view, this is borne out by the ongoing dispute with DoCS throughout 2004 over weekly contact. Mrs SL might well be correct that an option other than weekly visits would benefit both parties. However, we are left with an uneasy feeling that one of the reasons she resisted this arrangement was because deep down she was uncomfortable with the notion that the children might have loyalties to two mothers.

47 That would not necessarily result in the original decision being upheld. The problem we have is that Mrs SL, in particular, appears to have been antipathetic to the notion that anyone else ought have a say in how the children were cared for. We would discount here the GAL’s opinion that the SL’s are "old-fashioned" and "rigid" in their approach. This merely reflects a clash of relative values. A person may be "old-fashioned" (whatever that may mean) and yet be tolerant of others, open-minded and altruistic. We are not critical of the values of Mr and Mrs SL. Our concern arises from the fact that, despite assurances having been given by them, we have difficulty accepting that they sincerely acknowledge that DoCS and the children’s mother have an interest in, and in DoCS’s case, ultimate responsibility for the well-being of the children. One critical aspect of DoCS’s role in seeking to preserve the children’s well-being is to nurture their relationship with their mother.

48 We would concede that some foster carers find it difficult to balance perfectly the demands of providing the quality of child care needed by children and the requirement that they not bond so closely with the children they care for that they are unable to give way, when it is appropriate, to the legal guardian or birth parents. It is asking much of good foster carers to both care for children in more than a perfunctory way and to remain appropriately disinterested, knowing that they stand, in effect, in loco parentis but are not the actual parents.

Mrs SL’s mental health

49 Mrs SL has been diagnosed as suffering from a Major Depressive Disorder following problems at work in 2000. Since that time she has not been in the paid workforce and has received weekly compensation payments until late last year.

50 DoCS is concerned that Mrs SL’s mental health has and will continue to interfere with her ability to care for the children. The Applicants argue that Mrs SL’s condition is being successfully treated and refute the suggestion that it interferes with her ability to care for and nurture the children.

51 Mrs SL says that her condition is controlled by medication and therapy and she no longer suffers anxiety attacks, feels sad or is fearful of leaving the home. She concedes, however, that she avoids large public gatherings.

52 DoCS tendered medical reports about Mrs SL held on the Insurer’s file. These paint a conflicting picture. Her treating physiatrist, Dr Pusic, for example, in a report dated 19 April 2005, stated that, in his opinion, her condition was is in "partial remission" but that she continues to "display fluctuating levels of dysphoria present on most days leading to emotional lability with tearfulness, lack of motivation and difficulty with sleep...[she] also experiences a constant sense of apprehension and at times has experienced bouts of acute anxiety with palpitations, hyperventilation and a feeling of overwhelming dread. [Mrs SL] has been able to manage this anxiety by primarily avoiding stressful situations".

53 The Insurer’s doctor, Dr John Lam-Po-Tang, on the other hand thought that when he last saw Mrs SL in August 2004 that she no longer qualified for a diagnosis of major depressive disorder and thought a diagnosis of "Panic Disorder with Agoraphobia" to be more appropriate. On the basis of Mrs SL’s self-report he thought the condition was in the "moderate to severe" range. However, in light of the daily activities Mrs SL reported undertaking - driving significant distances, spending a day at school a week and so on - Dr Lam-Po-Tang thought she suffered from only mild agoraphobia.

54 While the experts disagree on the nature of and severity of Mrs SL’s condition, none indicated that she was unfit to care for children and all were aware that she was doing so.

55 Solicitor for the Applicants, Mr Ginges, argues that the medical evidence must be read in context. It was obtained for the purpose of a contested workers compensation claim. It is not surprising, therefore, that Mrs SL’s own doctors would provide the bleakest assessment.

56 It is difficult to say exactly where the truth lies when discussing a psychiatric illness but what is unequivocal is that Mrs SL has been compensated for a proven psychiatric disability. It surely cannot now be her case that she feigned or exaggerated her illness in order to obtain compensation to which she was not entitled. The result of the previous case is that Dr Pusic’s assessment must have been considered correct as far as the ultimate decision-maker was concerned at least up until compensation was stopped in December 2004.

57 One major difficulty that this case presents is that Mrs SL has been diagnosed with and is being treated for a major depressive illness and anxiety. Such diagnoses may be somewhat equivocal, and these illnesses are, by and large, able to be effectively treated. However, it appears that in Mrs SL’s case she remains prone to mood swings, occasional losses of temper and mild agoraphobia. The combination of these conditions has disabled her from undertaking paid work. There have been ongoing tensions between Mr and Mrs SL which have resulted in short-term departures from the family home. (It may be too much to call them separations because they were so short, but, certainly, on occasions it has been the case that the SL’s have walked out of the house for a time as a result of disputes or breaches in their relationship.) Blame is not the issue here. The question is whether this is a suitable environment for fragile children.

58 Ms Lindfield thinks not. Her view is that the children are being required, in effect, to mother Mrs SL. In her opinion they are being required to cater for her emotional needs to the detriment of their own. Ms Lindfield considers that Mrs SL is not capable of doing a great deal for them, apart from housing, feeding and educating them, while they are being required to provide her with the emotional buttressing she needs. She regards this as "role-reversal": her needs come first and afterwards, if ever, theirs.

59 Ms Lindfield has had limited opportunities to actually meet and assess the Applicants and the children, and her initial report was prepared in the context of the controversial Queensland proposal. However, the strength of her reports is considerable. There is some evidence from the Applicants to offset the concerns she raises. However they do not negative her reports as a whole, the central thrust of which is that the children are providing an inappropriate degree of emotional support to Mrs SL, to a degree that Ms Lindfield considers detrimental to the children’s welfare. The obvious reason for this is the mental illness – depression and anxiety – from which Mrs SL has suffered for a considerable period.

60 Anger management. The evidence reveals that the children have, over an extended period, witnessed both heated arguments between their foster carers and Mrs SL’s mood swings. In September of last year, when assessed by Ms Lindfield, all children spoke of a disturbing level of conflict within the home. SM for example said that both parents "got angry" and Mrs SL, "gets really angry when we muck up...she says she’s going to kill someone but she’s just being sarcastic". SN said "this mum gets angry a lot...a real lot...especially with [SO]".) They reported to DoCS, five months later: "[Mrs SL] gets ballistic. We all go to our bedrooms and let her cool down.": SN. More recently SM told the GAL that "mum and dad will just yell at each other [if SO is naughty] and I don’t like it, we kids know to stay out of their way". This suggests that while things might have improved, the problem still exists.

61 The children also reported to Ms Lindfield and DoCS that Mrs SL constantly threatened to leave the family.

62 This picture is in conflict with the evidence given by a number of witnesses called by the Applicants. The Tribunal heard evidence from a neighbour of the Applicants and a family friend to the effect that the children did not appear to be afraid of or guarded with either foster carer. The neighbour gave evidence that both carers were a model of forbearance in dealing with SO’s "challenging behaviours".

63 Nor would the evidence of the older brother and birth mother suggest that the things are quite as tense in the SL household as the disclosures to Ms Lindfield and DoCS might suggest. When interviewed by DoCS about his stay with the Applicants in Easter 2004, the older brother acknowledged that Mrs SL "gets really angry when the kids are really bad" but also made a number of positive comments about how the Applicants’ treated the children: "If [SO] was having a psycho-maniac attack, [Mr SL] would try and cuddle him." The mother stated in an affidavit filed in these proceedings that she is concerned for the children’s well being if they were to stay with the SL’s. However, she conceded that she only became aware of the problems raised in Ms Lindfield’s report when she read the risk of harm report earlier this year. It would appear that the mother has properly avoided quizzing the children about their carers during access visits. Nevertheless, if the children were very unhappy, it is likely that something would have been said or that she would have picked up some sense of that.

64 In evidence given in these proceedings, Mrs SL conceded she and her husband argued in front of the children and yelled at each other. She said the kids were good at pushing the button but she had learned how to "switch off". She said when she is a bad mood she tells the kids to give her space and believed in being open with them.

Wishes of the children

65 All children have repeatedly stated that they wish to remain with the Applicants. They made this clear to Ms Lindfield in September of last year, to DoCS officers in February 2005 and most recently to the GAL. This is also the understanding of the mother although she commented that she was surprised at their reaction when it was announced in her presence that they would not be returning to the Applicants. On her account, SM and SO were only briefly upset and SN "wanted her stuff but was otherwise not upset".

66 The children also reported to the GAL that they enjoyed living with the Applicants and wanted to remain with them and were "absolutely certain they were moving to Queensland". According to the GAL, when the children were questioned about some of the negative incidents set out in Ms Lindfield’s reports their response was the same, "it didn’t happen, I don’t remember, it doesn’t happen any more." The GAL remarked that the children might "[h]ave chosen to present a united and happy front to strengthen their true desires or they may have been coached to present a united prepared position".

67 The difficulty we have with this evidence is that it is an opinion based on speculation only. There are no objectively proven facts to provide a foundation for it. The GAL has a view that the children ought not to remain with the Applicants, that their best interests would be served by moving them but the evidence that the children are apparently happy with the Applicants tends to support an opposite approach. For children whose lives have been so chaotic or unstable in the past it may be that the Applicants’ virtues and strengths outweigh the imperfections that have been discussed at length in the course of these proceedings. There is nothing to suggest that the children’s reactions to the Applicants are insincere and, when it is all put together, a fair amount suggests they are reasonably happy with the Applicants most of the time.

68 According to Ms Lindfield, the children’s views must be seen in the context of children who have suffered "significant attachment damage" and their ability to bond with the Applicants or indeed other carers had been significantly compromised by events such as the proposed Queensland move. Ms Lindfield points to the superficial things the children nominated when asked what they liked about the Applicants - "nice dinners, clothes, toys" - as evidence that the children are not strongly attached to the Applicants. In her view, they are not of an age where they could make a decision that was in their best interests.

69 If the children are not very strongly attached to the Applicants, this evidence is unsurprising. If that is the case, a move for the children might not cause them significant further harm, but it would certainly be a further experience of instability for them. We agree with Ms Lindfield that the children might not be in the best position to determine their own best interests. This is particularly the case for the younger children. Given their life experiences so far, the children probably have relatively low expectations of adult carers, including their own mother. It might take a considerable time for them to bond firmly to any carers. Nevertheless, the best evidence suggests that they are doing fairly well with the Applicants and that the Applicants genuinely care for the children.

70 It is unsurprising to us that children may describe what they like about living with the Applicants in purely materialistic terms. It is, we think, common knowledge that young children tend to speak in very concrete terms about their experiences. They do not have sophisticated psychological vocabularies or concepts at their command. If children are well-fed, have clothes that they like, are taken on enjoyable excursions and so forth, commonsense and experience of the world suggests that children are likely to report that these are the things they like about staying with relatives or friends. We expect that this might be the case in respect of foster carers as well.

Early period

71 In our view, no useful purpose is served in reciting the respective accounts given by the parties about the initial stages of the placement. What emerges from the evidence is that the Applicants, not surprisingly, found it taxing to care for three young children with behavioural problems. In the early stages of the placement, on occasion, inappropriate discipline was used, including physical punishment. At times life within the home was very stressful. It would appear that throughout this period the carers argued frequently and that the primary care-giver, Mrs SL, was under a great deal of stress. Both Applicants gave evidence that they acknowledged that they had made a number of mistakes. We accept that both now recognise that it was inappropriate to smack the children. It seems to us that things within the home have improved significantly since this time.

72 It seems to us that the problems between the Applicants and DoCS had their genesis in this period. According to the Applicants, they were crying out for help with the children’s behaviours but were provided with intrusive and un-coordinated assistance by the Department. Mrs SL set out her repeated requests for family counselling, which were never acted on.

73 DoCS contend that from day one the Applicants and Mrs SL in particular were not open to guidance and attempted to isolate the children from external supports. The couple’s resistance to the offer of respite with their previous carers was but one example, according to DoCS. The Applicants deny that they tried to cut the children off from their previous carers and explain that the reason they questioned the appropriateness of weekend respite was because they believed that in the early part of the placement it was important that the family took every opportunity to spend time together and that the weekend provided an ideal opportunity.

Development of children

74 The evidence indicates that the children have developed in many ways throughout the course of the placement. According to Mrs SL, they have come along in "leaps and bounds". While she is not an independent witness, we accept the account given by Mrs SL’s mother that throughout the placement the children have developed in a number of ways. For example, SO’s speech has improved dramatically and he no longer wets the bed. Ms Lindfield confirmed that SO’s overall skill development had improved markedly since September 2002.

75 Ms Lindfield noted, on testing in September 2004, that SM’s overall IQ had declined from the bright average range, from the 81st to the 39th percentile since she was last tested two years earlier. Ms Lindfield could not explain why this marked deterioration might have occurred and thought one possibility was that SM might have been distracted by the emotional upset surrounding the proposed move to Queensland. In contrast, SN’s score had improved slightly placing her in the superior range of intelligence. According to Ms Lindfield SO’s score placed him in the low average range for intelligence.

Proposed foster carers

76 DoCS proposes to return the children to their previous carers, Mr and Mrs SQ, if the decision under review is affirmed. Mr SQ is aged 64 and Mrs SQ, 59. The children lived with the SQ’s for about 14 months before being placed with the Applicants in September 2003. The children stayed with Mr and Mrs SQ for a short period after their removal from the Applicants in May of this year.

77 The SQs had asked for the children to be removed in 2003 because they believed they were too old to provide the children with a long-term placement.

78 There is little evidence before the Tribunal about the SQ’s. In Ms Lindfield’s opinion SO’s primary attachment figure is Mr SQ. The children appear to have a generally positive view of the SQs although all state they would prefer to live with the Applicants.

79 According to Mrs SL, the children were overjoyed when they returned to their care and SO had complained that the SQs had locked the fridge, as had been the case when the children previously lived with them.

Relationship with DoCS

80 The evidence demonstrates the Applicants’ lack of appreciation of the demarcation between the responsibilities and role of foster carers, on one hand, and the children’s guardian, the Minister, on the other. We would accept that the Applicants have sought to be good foster carers and to be advocates for the children’s best interests. It is surprising however, that, given their desire to foster children and their obvious attachment to these children in particular that they have found it so difficult to understand the point of view of the DoCS caseworkers who bear the official responsibility for the children. In our opinion, Mrs SL is inclined to take a narrow and defensive approach to any perceived criticism, direct or implied, from DoCS. This does not bode well for the future if the children are left with them.

81 The Applicants now say that they are willing to comply with the requirements of DoCS and to undertake any appropriate training to accommodate the concerns the Respondent has raised. These undertakings appear to us to have been given somewhat begrudgingly and it concerns us that problems could be merely stored up for the future rather than resolved if the Application is granted.

Findings and Conclusions

82 In these proceedings we ‘stand in the shoes’ of the administrator, and make the ‘correct and preferable’ decision having regard to all relevant material (Administrative Decisions Tribunal Act 1997, s 63), including any material that postdates the decision under review to remove the children (See YG & GG v Minister for Community Services [2002] NSWCA 247 at [25].) We are obliged to conduct our review of the decision to remove the children "without any presumption as to the correctness of the decision": McDonald v Guardianship Administration Board [1993] 1 VR 521 at 530 (SupCtVic, Appeal Div).

83 The Care and Protection Act instructs us, to give paramount consideration to the safety, welfare and well-being of the children (s 9(a)). A determination of whether it is in the best interests of the children to remain with the Applicants requires us to balance what are, at times, the competing principles set out in s 9 of the Act. We must have regard to the views of each child, to the extent their development permits (s. 9(b)) and endeavour to retain their relationships with significant people including their mother and older brother, unless contrary to their best interests, and taking into account the wishes of each child (s 9(g)). In addition, any course to be followed as a result of our decision must be the "least intrusive intervention" consistent with the paramount concern to protect each child from harm and promote his or her development (s 9(d)).

84 In summary, there are many good things to be said about the Applicants: they have been meticulous in caring for the children’s physical, educational and health needs; they obviously care for the children; they are actively involved in the children’s education and, while there is a question mark over the eldest girl’s intellectual development the other children appear to be doing reasonably well in terms of education. The Applicants are energetic and resourceful carers and have gone to great lengths to provide the children with an array of recreational activities, which the children find enjoyable. Importantly they offer the children a devoted extended family and network of friends. Mrs SL’s mother now occupies a very important place in the children’s lives as the much loved "granny".

85 As stated, we agree with Ms Lindfield that the children might not be in the best position to determine their own best interests. However their views cannot be discounted. The girls, SM in particular, are of an age where they can assess the relative merit of a placement. Despite the ups and downs with this placement the children are unanimous in their wish to stay.

86 Importantly, the Applicants offer the children the opportunity to stay together as a sibling group. It is a matter of common knowledge that it is often difficult to find suitable foster carers who are able and willing to care for three children. While we have no basis to question the preparedness of the SQ’s to "take on" the children for a second time, as Mr Ginges points, out the longevity of that placement must be questioned given SQ’s original view that they were "too old" to care for the children in the long term. Even if the children are not emotionally bonded to the Applicants as Ms Lindfield believes, their removal will nevertheless be a further episode of instability in their lives which might well compromise their development and adjustment in the future.

87 On the other hand, we have serious concerns about the long-term prospects for the children if they remain with these carers. While it is true that Ms Lindfield has had limited opportunities to actually meet and assess the Applicants and the children, and her initial report was prepared in the context of the controversial Queensland proposal, the strength of her reports is considerable. While there is some evidence from the Applicants to offset the concerns she raises, ultimately they do not negative her reports as a whole, the central thrust of which is that the children are providing an inappropriate degree of emotional support to Mrs SL, to a degree that Ms Lindfield considers detrimental to the children’s welfare. The obvious reason for this is the mental illness – depression and anxiety – from which Mrs SL has suffered for a considerable period.

88 We also consider that the evidence shows that there have been inappropriate efforts made by the Applicants, especially Mrs SL, to consciously or otherwise weaken the children’s relationship with their natural mother. This probably stems not from malice but from a view held by the Applicants that they know how to provide for the children better than the birth mother did and from a natural desire for the emotional warmth and fulfilment that can be brought by caring for children. Nevertheless, even putting the best light on their conduct, in their efforts to break the bonds between mother and children they demonstrated a fallibility of judgment that, in the circumstances, was deplorable. While, as Mr Ginges has pointed out, the Applicants have repeatedly stated throughout these proceedings that they are prepared to accommodate the birth mother in whatever care plan is developed by DoCS, we believe there to be a real and material risk that they, and Mrs SL in particular will not fulfil the spirit of that commitment.

89 While people with depression or similar disabilities may make excellent foster carers, in these particular circumstances Mrs SL’s condition or, rather, its impact on the children, remains a source of concern. It is undesirable that children ought to have to tiptoe around their own home afraid of upsetting their parents or their carers. In an ordinary family not subject to the supervision of DoCS, there is not much children can do about irascible parents. Where the children are being cared for by DoCS it is because the children’s welfare and well-being has already been jeopardised. They are vulnerable and often damaged children. Insofar as circumstances allow, they should not be subjected to further psychological stress or trauma or inappropriate psychological burdens. Quite the reverse, they generally need to be treated with "kid gloves". While the Applicants have led some evidence which suggests that matters were never quite as bleak as the children reported to Ms Lindfield or have now improved, we could not be satisfied on the evidence before us that Mrs SL’s health has now improved to such an extent that there is no longer a risk that that the swings of mood the children reported over twelve months ago are a thing of the past.

90 Mrs SL’s own evidence does not provide us with any great comfort on this point. While she conceded that she "lost it" at times with the children and her husband she, in our opinion, downplayed the extent to which this occurred. On her account, except for these occasional outbursts her condition has been stable and controlled for some time. It is difficult to get a clear picture on where the truth actually lies. We are left with some uncertainty that she has been able to develop durable coping mechanisms that she can call on in difficult times. While we do not doubt that Mrs SL believes she is able to keep her moods in check at least as far as the children are concerned, we question her ability to do so especially if in the face of external stressors which inevitably, as with any family, will arise.

91 The children are well aware of the significant conflict between the Applicants and DoCS, the Applicants and their mother and the carers themselves. We are concerned by the failure of the Applicants to take adequate steps to spare the children from exposure to the disputes between the adults charged with responsibility for their welfare. Questioning them about whether they would prefer to return to their mother (Report of Ms Lindfield, 11 October 2004, p 18); telling them that the move to Queensland will proceed with or without them; announcing that Mrs SL will "walk out", are but a few examples. This is troubling for a number of reasons. First, it shows a remarkable lack of insight of how such conflict might affect the children. Second, it could lead to a situation where the children feel compelled to "take sides" and as a consequence censor what they report to the Department. There is some evidence that this might have already happened (see reports of contact supervisor, Jamie Duncan 24 May 2004 and 4 February 2005). It goes without saying that DoCS’ ability to monitor an out of home care placements will be severely hampered unless the children in those placements can raise any concerns they might have about their carers.

92 We do not believe that the Applicants have exposed the children to these issues and tensions out of malice. Nonetheless, it is grounds for concern. While to their credit the Applicants have conceded that they have made mistakes with the children, we remain unconvinced that they fully comprehend why exposure to conflict of this nature might be harmful to the children.

93 This is no easy decision. While the Applicants may not be ideal foster carers for these children, nonetheless they have a lot to offer them, not the least being the continuation of a placement which has now been on foot for two years and which all children wish to continue. We think that the concerns of DoCS are largely made out but they would not necessarily be insuperable but for the difficulty Mrs SL seems to have in dealing with DoCS. We are not here to defend DoCS or the GAL. We consider that the GAL’s value-laden criticisms of the Applicants ought to be discounted to some degree. Essentially, however, a foster placement requires not only a determination on the part of the carers to seek the best interests of the children but an acceptance on their part that they are not operating solo but are part of a team and that, as important as their role is, the decisions concerning the children require consultation. They also have to allow that the ultimate decisions concerning the children must be made by DoCS and might not be exactly in accordance with their desires or recommendations. While it seems to us that Mr SL accepts this, we are not confident that Mrs SL does, despite her evidence to the contrary. This is especially concerning given DoCS’ role in brokering contact arrangements with the birth mother. While it would be unfair to judge anyone on the basis of a one-off incident in stressful circumstances, Mrs SL’s outburst at the meeting with DoCS the day following the granting of the stay suggests that there is real risk that she will struggle to work with DoCS.

94 For all their obvious virtues, the Applicants, unfortunately, appear to have had a great deal of difficulty in operating in a consultative partnership with DoCS and the birth mother in respect of the children. This may, again, be a consequence of Mrs SL’s depression and anxiety. Whatever the reason, however, it is not in the best interests of the children that they be placed with people who have as much difficulty as the Applicants have had in working with their legal guardian and who, seemingly, do not have sufficient respect for their attachment to their mother.

95 We would, therefore, affirm the decision of the Minister.

TABLE of PSEUDONYMS

SL	The Applicants
SM	Eldest girl, aged 10
SN	SM and SO’s sister, aged 8
SO	SM and SO’s brother aged 6
SP	Birth mother of SM, SN and SO
SQ	Proposed foster carers