ED v Department of Children, Youth Justice and Multicultural Affairs [2022] QCAT 102

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: ED v Department of Children, Youth Justice and Multicultural Affairs [2022] QCAT 102 PARTIES: ED (applicant) v DEPARTMENT OF CHILDREN, YOUTH JUSTICE AND MULTICULTURAL AFFAIRS (respondent) APPLICATION NO/S: CML496-20 CML174-20 MATTER TYPE: Childrens matters DELIVERED ON: 29 March 2022 HEARING DATE: 24 September 2021 Further submissions filed 18 November 2021 and 2 December 2021 HEARD AT: Brisbane DECISION OF: Acting Senior Member Traves Member Kent Member Knox ORDERS: The decision of the Department of Children, Youth Justice and Multicultural Affairs made on 30 October 2020, refusing to renew the certificate of authority as a foster carer is confirmed. The decision of the Department of Children, Youth Justice and Multicultural Affairs made on 1 May 2020 to remove the children from the care of the applicant is confirmed. CATCHWORDS: FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – CHILDREN IN NEED OF PROTECTION – PROCEEDINGS RELATING TO CARE AND PROTECTION – GENERALLY – review of Department’s decision to continue child’s placement with foster carer – review of Department’s decision to refuse to renew certificate of authority as a foster carer -- 1 of 20 -- 2 Child Protection Act 1999 (Qld), s 4, s 5A, s 5B, s 5BA, s 5C, s 89, s 99A, s 99C, s 99D, s 99U, s 99Q, s 122, s 134, s 135, s 136, s 247, Schedule 2 Child Protection Regulation 2011 (Qld), reg 16, reg 22, reg 26 Queensland Civil Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: Ms SAM Homer Ms A Yiakoupis, Court services advisor, Department of Children, Youth Justice and Multicultural Affairs Separate representative: Mr T Davidson, Legal Aid Queensland Direct representative for AJ Ms L Taylor REASONS FOR DECISION [1] There are two decisions under review in this matter: (a) the decision made on 1 May 2020 to remove two children, A (born 23/10/2006) and L (born 23/02/2017) from the care of the applicant pursuant to s 89 of the Child Protection Act 1999 (Qld) (‘the removal decision’); and (b) a decision made on 30 October 2020 to refuse to renew the applicant’s certificate of authority as a foster carer, pursuant to s 136 of the Child Protection Act 1999 (Qld) (‘the refusal to renew a carer’s certificate decision’). [2] On 25 November 2020 the Tribunal made a direction that CML174-20 and CML496- 20 would be heard together. [3] Although the matter first in time is the removal decision, the children can not be returned to the applicant unless she is an authorised carer. For that reason, we propose to deal first with the refusal to renew a carer’s certificate decision. Background [4] On 4 January 2019 the applicant (ED) applied to be approved as a foster carer. The assessment was undertaken on 4 March 2019 and included the Carer Applicant Health and Wellbeing Questionnaire dated 9 October 2018 and General Practitioner Report on Carer Applicant dated 2 November 2018. The application was granted for one year from 31 March 2019. [5] On 7 May 2019 A and L were placed in the care of ED. L attended a Day Care Centre at that time. A attended a local High School. -- 2 of 20 -- 3 [6] On 4 August 2019 ED advised Dr Heyer, Paediatrician at Townsville Aboriginal and Islander Health Services (TAIHA) that L could be very aggressive (bite and scratch) especially when he did not sleep well. Dr Heyer prescribed Melatonin to be reviewed in 3 months. [7] On 22 November 2019 Dr Heyer formally diagnosed L with Level 2 Autism which made L automatically eligible for support through the National Disability Support Service (NDIS). [8] On 3 February 2020 ED made an application to renew her certificate of authority as a foster carer. [9] On 28 February 2020 Dr Heyer referred L to an Occupational Therapist and psychologist to develop strategies to help manage his aggressive behaviours. L was also accepted to the Early Childhood Development Program. [10] On 21 April 2020 L was granted access to NDIS. [11] On 1 May 2020 a decision was made to remove A and L from the care of ED. [12] On 6 May 2020 L’s NDIS plan was submitted for approval. [13] On 17 June 2020 notice of the removal decision was issued to ED. [14] On 29 September 2020 a renewal assessment was completed by Ms Gibson, an external assessor of Sanctuary Family Solutions. The assessment included consideration of a revised Carer Applicant Health and Wellbeing Questionnaire dated 11 August 2020; revised General Practitioner’s Report on Carer Applicant dated 1 September 2020; letter from Dr Ho of Call to Mind dated 8 September 2020 and Household Safety Study completed 31 August 2020. [15] ED reviewed the assessment and provided comments in response to be included dated 30 September 2020. The assessment was submitted by Ms Gibson on 30 September 2020. [16] Upon receipt of the assessment, the foster carer support agency, Althea Projects- Shared Family Care, provided an Addendum to the Re-Approval Assessment dated 6 October 2020. [17] On 16 October 2020 Ms Gibson submitted an addendum to her assessment. [18] On 28 October 2020 the foster carer panel considered the renewal application and assessment and agreed with Ms Gibson’s recommendation that ED’s application for renewal not be approved. [19] On 30 October 2020 the decision was made to refuse to renew ED’s authority to act as a foster carer. [20] Stays were granted in respect of the decision to remove A1 and of the refusal to renew ED’s carer’s certificate.2 L has not been in ED’s care since 1 May 2020.3 A returned to ED’s care on 8 May 2020. 1 Tribunal Decision of 31 July 2020. 2 Tribunal Decision of 18 December 2020. 3 The application for a stay of the decision to remove L was withdrawn on 18 December 2020. -- 3 of 20 -- 4 Relevant statutory provisions and principles [21] Section 247 of the Child Protection Act 1999 (Qld) (CP Act) provides that an ‘aggrieved person’ may apply to the Tribunal for the review of a ‘reviewable decision’. Definitions of an aggrieved person and a reviewable decision for the purposes of the CP Act are set out in Schedule 2. [22] Reviewable decisions include, relevantly: (a) a removal decision made pursuant to s 89; and (b) a decision to refuse to renew a certificate of approval as an approved foster carer made pursuant to s 136, provided the decision is not made because the carer does not have a working with children authority (blue card). [23] ED, in her capacity as a carer and certificate holder, respectively, is entitled to review each of those decisions. [24] In exercising its review jurisdiction, the Tribunal must decide the review in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) and the CP Act. [25] The Tribunal has all the functions of the decision-maker for the reviewable decision being reviewed.4 The purpose of the Tribunal is to make the correct and preferable decision and the Tribunal must hear and decide the review by way of a fresh hearing on the merits.5 [26] In a review proceeding the Tribunal may confirm or amend the decision under review; set aside the decision and substitute its own; or set aside the decision and return the matter for reconsideration to the decision-maker with any directions considered appropriate.6 There need not be an error in the original decision for the tribunal to come to a different decision and there is no presumption that the original decision was correct.7 [27] Proceedings in the Tribunal that relate to the CP Act are subject to the provisions of Chapter 2A of the CP Act.8 Section 99C of Chapter 2A provides that the object of Chapter 2A is to provide for the Tribunal to make decisions in a review that promote the welfare and best interests of the child about whom the reviewable decision was made. [28] Section 99D provides that, in exercising its jurisdiction, functions or powers in relation to the CP Act, the Tribunal must have regard to the principles mentioned in ss 5A to 5C, to the extent the principles are relevant. [29] The purpose of the CP Act is to provide for the protection of children.9 Section 5A makes clear that the paramount consideration in administering the Act is the safety, 4 QCAT Act, s 19(c). 5 QCAT Act, s 20. 6 QCAT Act, s 24. 7 Kehl v Board of Professional Engineers [2010] QCATA 58. 8 CP Act, s 99A. 9 CP Act, s 4. -- 4 of 20 -- 5 wellbeing and best interests of a child, both through childhood and for the rest of the child’s life. [30] Section 5B sets out a list of principles for ensuring the safety, wellbeing and best interests of a child. Those principles are as follows: (a) a child has a right to be protected from harm or risk of harm; (b) a child’s family has the primary responsibility for the child’s upbringing, protection and development; (c) the preferred way of ensuring a child’s safety and wellbeing is through supporting the child’s family; (d) if a child does not have a parent who is able and willing to protect the child, the State is responsible for protecting the child; (e) in protecting a child, the State should only take action that is warranted in the circumstances; (f) if a child is removed from the child’s family, support should be given to the child and the child’s family for the purpose of allowing the child to return to the child’s family if the return is in the child’s best interests; (g) if a child does not have a parent able and willing to give the child ongoing protection in the foreseeable future, the child should have long- term alternative care; (h) if a child is removed from the child’s family, consideration should be given to placing the child, as a first option, in the care of kin; (i) if a child is removed from the child’s family, the child should be placed with the child’s siblings, to the extent that is possible; (j) a child should only be placed in the care of a parent or other person who has the capacity and is willing to care for the child (including a parent or other person with capacity to care for the child with assistance or support); (k) a child should be able to maintain relationships with the child’s parents and kin, if it is appropriate for the child; (l) a child should be able to know, explore and maintain the child’s identity and values, including their cultural, ethnic and religious identity and values; (m) a delay in making a decision in relation to a child should be avoided, unless appropriate for the child. [31] Further principles set out in s 5BA apply to best ensure the child experiences ‘permanency’ which is defined to mean the experience of the child in having the following things: (a) ongoing positive, trusting and nurturing relationships with persons of significance to the child, including the child’s parents, siblings, extended family members and carers; and -- 5 of 20 -- 6 (b) stable living arrangements, with connections to the child’s community, that meet the child’s developmental, educational, emotional, health, intellectual and physical needs; and Example— living arrangements that provide for a stable and continuous schooling environment (c) legal arrangements for the child’s care that provide the child with a sense of permanence and long-term stability, including, for example, a long- term guardianship order, a permanent care order or an adoption order for the child. [32] A child has the right to express his or her views to the tribunal about matters relevant to the review of a decision about the child.10 The child may be represented by a lawyer and may be separately represented.11 The Tribunal appointed a separate representative for A and J for the purposes of the review proceedings and to act in the child’s best interests having regard to the expressed views of the child and as far as possible to represent the views and wishes of the child.12 Specific provisions relevant to refusal to renew carer’s certificate decision [33] Section 134 sets out the process for renewing a certificate. A foster carer certificate expires 2 years from the day of issue.13 Before the certificate ends, the holder may apply to the chief executive to renew it.14 If the decision is made to renew the certificate the certificate must include the matters set out in s 134(6) which includes any conditions of the certificate.15 The conditions may only include conditions that applied immediately before the renewal.16 [34] Section 135 is the critical provision. It sets out the mandatory pre-conditions about which the decision-maker must be satisfied before renewing a foster carer certificate. They are: (i) the applicant is a suitable person to be an approved foster carer; and (ii) all members of the applicant’s household are suitable persons to associate on a daily basis with children; and (iii) the applicant and each adult member of the applicant’s household have a working with children authority; and (iv) the applicant is able to meet the standards of care in the statement of standards; and (v) the applicant is able to help in appropriate ways towards achieving plans for the protection of a child placed in the carer’s care; 10 CP Act, s 99U(2). 11 QCAT Act, s 43; CP Act, s 99Q. 12 CP Act, s 99S. 13 CP Act, s 134(8)(a). 14 CP Act, s 134(1). 15 CP Act, s 134(6)(e). 16 CP Act, s 134(7). -- 6 of 20 -- 7 [35] In relation to s 135(1)(iv) the standards of care are those set out in s 122 which provides: 122 STATEMENT OF STANDARDS (1) The chief executive must take reasonable steps to ensure a child placed in care under section 82 (1) is cared for in a way that meets the following standards (the "statement of standards")— (a) the child’s dignity and rights will be respected at all times; (b) the child’s needs for physical care will be met, including adequate food, clothing and shelter; (c) the child will receive emotional care that allows him or her to experience being cared about and valued and that contributes to the child’s positive self-regard; (d) the child’s needs relating to his or her culture and ethnic grouping will be met; (e) the child’s material needs relating to his or her schooling, physical and mental stimulation, recreation and general living will be met; (f) the child will receive education, training or employment opportunities relevant to the child’s age and ability; (g) the child will receive positive guidance when necessary to help him or her to change inappropriate behaviour; (h) the child will receive dental, medical and therapeutic services necessary to meet his or her needs; (i) the child will be given the opportunity to participate in positive social and recreational activities appropriate to his or her developmental level and age; (j) the child will be encouraged to maintain family and other significant personal relationships; (k) if the child has a disability—the child will receive care and help appropriate to the child’s special needs. (2) For subsection (1) (g), techniques for managing the child’s behaviour must not include corporal punishment or punishment that humiliates, frightens or threatens the child in a way that is likely to cause emotional harm. (3) For subsection (1) (j), if the chief executive has custody or guardianship of the child, the child’s carer must act in accordance with the chief executive’s reasonable directions. (4) The application of the standards to the child’s care must take into account what is reasonable having regard to— (a) the length of time the child is in the care of the carer or care service; and (b) the child’s age and development. [36] The Child Protection Regulation 2011 (Qld) (CPR) is relevant to the question of suitability to be a foster carer. Regulation 16 provides that the purpose of Part 7 of the -- 7 of 20 -- 8 CPR is to provide for who is a ‘suitable person’ for the CP Act and the matters that may be considered in deciding if a person is a suitable person. [37] Regulation 22 provides: 22 APPROVED FOSTER CARER A person is a suitable person to be an approved foster carer of any child if the person— (a) does not pose a risk to a child’s safety; and (b) is able and willing to protect a child from harm; and (c) understands, and is committed to, the principles for administering the Act; and (d) has completed any training reasonably required by the chief executive to ensure the person is able to care properly for a child. [38] Other matters that may also be considered are set out in regulation 26 as follows: 26 OTHER MATTERS THAT MAY BE CONSIDERED In deciding if a person is a suitable person under this part, the chief executive or a court may consider the following— (a) the person’s employment history; (b) the person’s physical or mental health; (c) any other matter relevant to deciding whether the person is a suitable person under this part. [39] If a decision is made to refuse an application to renew a certificate, written notice of the decision must be given to the applicant in accordance with s 136. Specific provisions relevant to removal decision [40] Section 89 provides: 89 REMOVAL FROM CARER’S CARE The chief executive may decide to remove the child from the care of the child’s carer if the chief executive is satisfied it is in the child’s best interests. [41] A child’s carer is entitled to have the removal decision reviewed if, relevantly, the stated reason for the decision is the carer is no longer a suitable person to have the care of the child or the carer is no longer able to meet the standards of care in the statement of standards for the child.17 The refusal to renew foster carer’s certificate [42] The respondent’s decision to refuse to renew ED’s certificate was based on the following grounds: (a) ED had not demonstrated an ability to provide a long-term positive placement experience for A and L; 17 CP Act, s 89. -- 8 of 20 -- 9 (b) ED had voluntarily relinquished the placement of A and L on 30 April 2020 and had been threatening to do so since November 2019. ED then requested they be returned the next day which indicated ED had no understanding of the impact of her actions that led up to the relinquishment and subsequent removal decision; (c) ED was unable to demonstrate an ability to manage a placement for L; (d) Worries for ED’s mental health at the time of the relinquishment which were unable to be fully assessed as the GP report and psychiatric evaluation stated there were no concerns for ED’s mental health; (e) ED’s demonstrated inability and inflexibility to work through challenges alongside the care team. (f) The members of the care team who worked alongside ED for 18 months prior to the decision were supportive of the decision. [43] It is necessary to assess ED’s suitability to be a foster carer as at the date of the hearing and on the basis of the evidence before the Tribunal. That said, the grounds relied upon by the Department provide a useful framework for our consideration. [44] We consider that the main issue with respect to ED’s suitability to be a foster carer is her ability to manage the placement of foster children with complex and challenging needs in the context of the mental health issues she has disclosed. We wish to emphasise that mental health issues alone do not necessarily make a person unsuitable to be a foster carer. The issue is whether, in the circumstances of each case, the carer’s mental health may pose a risk to the safety of children in his or her care or affect his or her ability to meet the standards of care. It may be that it is the applicant’s mental health in combination with other environmental factors that means the carer has demonstrated an inability to cope with the demands of being a foster carer. The applicant’s evidence ED [45] ED made it very clear that she blames her alleged inability to cope on the lack of support she received from the foster agency. ED says, in hindsight, she wished she had resigned from the agency in November 2019. ED considers she is not hard to work with but that things were left to go “for far too long”. [46] She said that she had made ongoing respite requests for 5 months which had gone unactioned. She said she needed respite to be able to manage long term and ‘not to have days like this’ (presumably in reference to being teary while giving evidence) when she could not manage if she got extremely stressed. ED explained that “respite was not to address an acute problem but for prevention and maintenance”. She said that when she finally got to a respite weekend she would be exhausted because she had had to make a fuss and ‘beg for it’. [47] ED gave evidence that she was citing serious mental health concerns towards the middle and end of the placement in an effort to get more respite. She said that she was a suitable person to be approved as a foster carer and that her mental health does not impact on her capacity or ability to care for A or L. Indeed, that she has continuously met the standards of care. [48] ED described her symptoms of PTSD as: -- 9 of 20 -- 10 (i) startled reflexes over small things; (ii) gaps in cognition, where it feels that “my brain just stops”; (iii) reduced appetite which “causes me to be unreliable as I become tired”; and (iv) not suited to fulltime employment. [49] ED said during the hearing that PTSD would sometimes make her tearful but that she would have no issue giving attention to a child or picking up that a child was in danger or reading their emotions. [50] ED said that her main source of income is a disability pension for her diagnosis of PTSD. ED has been a recipient of this pension since 2013/2014 upon the conclusion of a court hearing in relation to her childhood abuse. [51] ED also gave evidence that she had had a stillbirth and that when asked what ‘losing a day’ meant, said that “days like Mother’s Day are difficult for me so I would just be organised for that and not leave things to the last minute”. [52] ED said, in relation to L, that once he started therapy his violent behaviours decreased and conceded that a certain amount of stamina is required for a four year old with the types of behaviour that L has. When cross-examined as to what she meant by her conversation with Community Visitor Amy Lambert on 22 April 2020, “if she’s not provided with regular respite”, ED clarified she: …was not sure she could keep going on, without support as she wouldn’t be able to continue to provide a high level of care to the children. Ms Riggs [53] Ms Riggs is an art therapist. Ms Riggs opined that mental health was like an injury and that there is capacity to recover from it. Ms Riggs has not observed ED with children. Dr Rathnayake [54] Dr Rathnayake is a general practitioner. He prescribed THC to ED in January 2021 to alleviate symptoms of endometriosis and mental health disorders (anxiety and PTSD).18 Mr Rathnayake had prescribed 0.25ml of THC5 CBD20 oral solution nightly. Dr Rathnayake said that a standard dose of 2.5mg of THC can make a person feel tired so they start with a low dose. Dr Rathnayake said that if a person had a history of cannabis use, that medical cannabis was not an endorsed treatment. He said that when determining a prescription for THC, he would ask a patient to tell him about their history, pain, previous use of cannabis, mental health diagnosis and build a profile from there. Dr Rathnayake said that he was not aware whether ED was using or had in the past used non-medicinal cannabis. Ms Sutton [55] ED was a paid nanny for Ms Sutton for seven years and helped care for Ms Sutton’s two children, on occasion staying overnight. Ms Sutton was happy with the care that 18 Exhibit 5: Report by Dr Rathnayake dated 12 July 2021. -- 10 of 20 -- 11 ED provided and said that ED spoke about wanting foster children and that she had a plan to have children and provide care to other children. Ms Scully [56] Ms Scully is the mother of A and L. She gave strong evidence in favour of ED and said that ED was a suitable person to provide care to her children. She confirmed that it was important for anyone caring for children to be emotionally and mentally well. She said that if her three children could be placed with family in Brisbane that she would let them go as they would be together”. ED said that A was happy with ED and that ED had gone ‘above and beyond’ to try and keep the sibling bond. Ms Scully said that A had called her fearful when she was moved to stay with older brother J for one week and that A had told Ms Scully she wanted to go back to ED as she felt spoilt in her care and had her needs met. Mr Johansen [57] Mr Johansen is the father of A and L. Mr Johansen provided a written statement to the effect that he believed his children, J, A and L should be together and that as Ms Scully, J, A and L had an existing relationship with ED that placement with her would be favourable and most beneficial. Evidence of separate representative Ms Richards [58] Ms Richards, psychologist, is the author of the Social Assessment Report and was briefed by the Separate Representative. [59] In cross examination, Ms Richards attested that ED could not care with the care of L based on the information related to ED’s mental health, her difficulty in coping with L, delay in obtaining NDIS funding and the stress of not getting respite. Her assessment was that ED struggled with L’s high needs. Ms Richards confirmed in her oral evidence that it is in the best interests for A to be placed with ED. Mr Davidson [60] Mr Davidson, as the appointed separate representative of the children advised that it was in the best interests of A and L that the decision to remove them from ED’s care be confirmed. Mr Davidson, in particular relied upon ED’s unlawful use of cannabis while A self-placed with her and to ED’s email of 30 April 2020 when she made clear she was no longer willing to care for the children. Mr Davidson submitted that it was entirely reasonable for Child Safety to take action upon receipt of such communication and also given ED’s presentation with stakeholders prior to 30 April 2020 due to her dissatisfaction with the provision of respite. [61] In relation to A, given ED’s unlawful cannabis use, Mr Davidson did not support the placement. In relation to L, Mr Davidson relied on Ms Richards’ report which concluded that L’s current placement should not be disturbed due to the extended time L had not had contact with ED and that his current ‘one on one’ placement was stable and seemed to have had a beneficial impact on his behaviours. Evidence of direct representative of A -- 11 of 20 -- 12 [62] Ms Falcomer, A’s direct representative,19 advised in written submissions that A’s views and wishes were that she continue to live with ED. Ms Falcomer advised that A considered it important that her biological parents get along well with ED, she is comfortable living in ED’s home, that there is some flexibility in the home and that contact is maintained with her siblings, L and J. [63] Ms Falcomer advised that A’s views and wishes support the decision that the removal of her from the care of ED be set aside. Evidence of the Department Ms Gibson [64] Ms Gibson is an external assessor and was commissioned by Althea Projects to undertake an assessment in response to ED’s application to renew her certificate as a foster carer. Ms Gibson completed the Carer Renewal Assessment in relation to ED on 29 September 2020. In the course of her assessment Ms Gibson conducted 5 face to face home visits. Referee reports were compiled by Ms Gibson from information/comments provided by Tony Hopkins (Team Leader at Child Safety Service Centre), David De Jong (Child Safety Officer) and Mikayla Johnstone (Fostering Case worker). [65] Ms Gibson’s main concern was ED’s ongoing threats to relinquish care for the five months prior to their removal. Ms Gibson referred to emails sent by ED to people about not coping and saying things like ‘take me off my ledge’. Ms Gibson said that ED did tick psychological disorder in the Health and Wellbeing Questionnaire but that it was for an incident sixteen years ago and that in fact ED checked in with a psychiatrist every 3 months. Ms Gibson said that the information she had on record did not add up with ED being depressed or having clinical depression and not coping. Ms Gibson said that the information she had did not align with what ED was saying. [66] Ms Gibson said did not know if she would have given ED a positive assessment if a working diagnosis had been known for ED. Ms Gibson said that “had a diagnosis been known, the assessment could have looked at triggers and would have explored maladaptive behaviours of not coping and asking for respite”. [67] Ms Gibson confirmed that it was not the case of a blanket non-recommendation for applicants with a mental health diagnosis and that it all comes down to ‘if there is a risk of harm to a child based on their treatment and insight and triggers to their mental health. Ms Gibson said that ED’s mental health was a ‘big reason’ to her not working as part of a team and her ability to meeting the standards of care. [68] Ms Gibson said that ED’s threats to relinquish care, which began 4 months after providing care, raised concerns for the emotional stability of the children as they would start to feel unsure, unwanted and it would bring on more grief and loss and all the types of things that children in care already experience. It would, in her view, be traumatising them again. [69] Ms Gibson also questioned ED’s coping mechanisms would be to say “I’m not coping, I’m depressed.” Ms Gibson said that if ED was not coping or not well enough then she would not be able to care for the children. 19 Ms Taylor appeared as direct representative for A in the Hearing. -- 12 of 20 -- 13 [70] Ms Gibson also raised issues she had with a suggestion that ED read A’s diary. ED said it was not a diary but a piece of paper left on the kitchen table. We do not consider this incident to be of significance. Ms Gibson also referred to a concern that ED may have disclosed the name of the children’s father to a person she was seeing at the time. This was not however, able to be substantiated. Finally, Ms Gibson relied on a referee report ostensibly provided by ED’s nominated referee, Jodie Bourke, a staff member at the child care centre which L attended. It became apparent during the hearing that the report, unknown to Ms Gibson, had in fact been provided by Natalie Moore, Ms Bourke’s supervisor. In those circumstances we have not relied upon that aspect of Ms Gibson’s report. [71] Ms Gibson, during the hearing, said that her main concern was in relation to s 122(c) in relation to the risk of abandonment for the children and their exposure to ED’s threats of relinquishment. Ms La Rosa [72] Ms La Rosa is the CEO of Althea Projects. Ms La Rosa had a supervisory role at the agency and explained that, while she was not involved in day to day issues, she had supported staff and listened to their concerns during 2020. [73] Although Ms La Rosa had not provided a statement in the matter, it had been agreed during a Directions Hearing that Ms La Rosa would attend and give evidence at the Hearing in light of Mr Pascoe’s inability to do so. [74] Ms La Rosa’s evidence centred upon ED’s inability to work as part of a team. Ms La Rosa said that, as an agency, they had tried to support ED and to engage her in a process but that ED was not engaged and getting increasingly angry and frustrated. [75] Ms La Rosa said that they had attempted to offer ED support where they could and that she believed ED had been given monthly respite. When questioned by the Tribunal in relation to what factors were taken into account in determining respite, in particular for a child of 3 with Autism, Ms La Rosa said, in effect, that they were conscious of L’s separation anxiety and wanted to make sure they got it right and that for autism, respite needed to be planned and consistent. [76] Ms La Rosa admitted in cross examination that the fact ED had an assigned direct support worker from the agency for only two of the 12 months of the placement, was unacceptable. Ms Johnstone [77] Ms Johnstone was ED’s family case worker at Althea Projects from April 2019 to May 2020. [78] Ms Johnstone’s evidence focussed on the support she had provided to ED, namely weekly visits and assistance in preparing for the placement. Ms Johnstone’s observations of ED’s relationship with A was that they had a friend rather than carer relationship and that this impacted on “boundaries and discipline”. Ms Fiamingo [79] Ms Fiamingo is a family case worker with Althea Projects Foster and Kinship Program. Ms Fiamingo confirmed that there was a shortage of carers in the sector. Dr Hay -- 13 of 20 -- 14 [80] Dr Hay is ED’s treating psychologist. Dr Hay gave evidence that she saw no reason, professionally, why ED could not look after children as a foster carer. She also diagnosed ED with depression and anxiety and PTSD. Mr de Jongh [81] Mr de Jongh was the assigned Child Safety Officer for A and L from 11 July 2019 to 4 January 2021. [82] Mr de Jongh said his concern was with the care of the children from November 2019 onwards. That is when he began to see ED stressed about the placement and when he re-directed her to the care agency. In his view, ED’s stress was related to the care of L. [83] Mr de Jongh said he was concerned about ED’s ability to meet standard s 122(1)(b) in terms of her ability to provide food and shelter as when she was unwell, she did not eat properly and inadequate food had been provided to L according to information provided to him by the director of the Child Care Centre. [84] Mr de Jongh was concerned for ED’s future ability to meet standards of care give the fractured relationship with the Department and the care agency. He thought ED would be unable to work as part of a team in the future as she had difficulties with both the care agency and Child Safety. Consideration Mental health and use of medicinal cannabis [85] ED did not disclose any mental health conditions or her regular appointments with her psychologist on her initial Health and Wellbeing Questionnaire dated 9 October 2018 as part of her initial assessment process. [86] In her renewal application of 11 August 2020 ED notified by ticking the relevant box that she has had the following: Psychological/Psychiatric Disorders; Anxiety/Depressive Illness and Blood Borne virus (Hep C, HIV etc). [87] A GP report dated 1 October 2020 provided by Dr Tripathi, who reports having known ED for over a year, does not include any mental health conditions. [88] ED stated in her application that she lost a child at 38 weeks when her unborn child contracted syphilis as a result of her then husband being unfaithful and transmitting the disease to her. ED was 25 years old at the time. She said that this ‘tragedy’ led to her suffering psychological issues, namely depression and anxiety from 2004 to 2005. ED said that at the time she lost routine around sleeping and eating and generally lost interest in life. ED said that she received treatment from a psychologist and that she has seen a professional every 3 to 6 months since, although, as she reported in her foster carer application, has no symptoms. [89] ED gave evidence in the hearing that she ended up getting lots of counselling following a compensation hearing regarding her childhood abuse involving her step father grooming her for a number of years. ED said that it was a compensation hearing because her step father had committing suicide during the process. ED obtained ‘compensation’ which comprised unlimited psychiatric and psychological treatments -- 14 of 20 -- 15 and unlimited acupuncture treatments.20 ED has also been on a disability support pension for PTSD from the conclusion of this matter in 2014. [90] A report from Dr Ho, psychiatrist, obtained following a referral by Dr Tripathi, ED’s GP, stated that ED had a still birth 16 years ago which was followed by a 6 month period of depressed mood. He said that ED had had psychotherapy from a psychiatrist for one year and that she currently saw a psychologist every 3 months. Dr Ho said that ED denied any childhood trauma. Dr Ho concluded that ED did not meet the diagnostic criteria for depression or any other DSM-5 diagnoses. [91] ED gave evidence somewhat contradictory to the history provided by Dr Ho. ED said in the hearing that following the stillbirth of her child and in view of the childhood trauma she had experienced she commenced an intensive therapy regime which lasted over 10 years to ‘remove the bad patterns taught to me by my family, my parents’ and ‘to better enable [her] to enjoy [her] life and be successful and be able to give back to the community’. ED said that it had been a lot of hard work and at some points she has had two counsellors a week for years at a time and that ‘she [has] tried absolutely everything to regain…the joy for life that [she] once had’.21 ED then said in the hearing that she still tries different things and referred to the experimental drug she was taking.22 [92] ED gave evidence in the hearing that she is currently taking the following prescribed medication: 400mg of Fluvoxamine daily; 5mg of Donepezil; and monthly usage of THC (or CBD) oil; and twice monthly usage of other cannabis product (with a higher THC content). [93] It was unclear from the evidence when ED commenced using the cannabis products. ED said that she was first prescribed them in July 2020.23 However Dr Rathnayake confirmed in his evidence that he initially prescribed THC to ED in January 2021. [94] ED’s evidence is consistent with Dr Hay’s. Dr Hay’s clinical notes indicate that she recommended to ED that she reduce her THC use from October 2020. Dr Hay’s refers in her notes to her advising ED that she needed to reduce her THC so as to ensure a better sleep routine for herself rather than sleeping during the day. [95] In an interview on 14 July 2021 between ED and representatives of the Department, ED said that she had commenced using medicinal marijuana in March 2021. ED said that she had been prescribed CBD oil as well as the “flower” which is the leafy material. ED said the CBD oil was for endometriosis and insomnia and the “flower”, which she inhales using a vaporiser, is for her nightmares. ED said she generally has nightmares when she is not looking after herself, which she explained meant when she got herself into stressful situations. ED said that she also tries Buddhism, meditation, exercises and journaling to help alleviate stress. [96] ED said she does not use medical cannabis around the children or drive for 3 days after inhaling the medical cannabis. ED said that she postponed her use until she knows the children will be at contact. The children are dropped home after contact 20 T1-46. 21 T1-43. 22 Ibid. 23 T1-45, evidence of ED. -- 15 of 20 -- 16 and ED will then not drive over the weekend or have the children walk home as she ‘can’t start the car’. [97] ED also takes Fluvoxamine for her PTSD, a medication which ED described as “tame”. ED said she was going to try alternatives, and referred to an experimental drug ‘Donepezil’ which she said may help with her symptoms of PTSD but she would not know for another six months. [98] ED gave evidence in the hearing that she has a “chronic condition” which requires her to manage stress and anxiety or she will become unwell.24 ED admitted in the hearing that her health did decline during the placement, but that it was due to the stress caused by the agency, not the children.25 [99] Dr Hay gave evidence in the hearing that after the children were removed from ED, she briefly had suicidal thoughts and that her antidepressant medication was increased.26 Dr Hay said that ED had become so overwhelmed in terms of stress that the thoughts had come to her. Dr Hay said that ED had not acted on the thoughts and that at no time had she thought ED was a danger to herself or others.27 Dr Hay said that ED was concerned about not getting respite because she knew she needed it ‘as part of her keeping well’.28 Dr Hay also admitted that a lack of sleep was probably making her more vulnerable to symptoms.29 At that time, when Dr Hay records the lack of sleep issue, Dr Hay notes ED has self-medicated by increasing her prescription of Fluvoxamine and recommends she undergo Dialectical Behavioural Therapy to assist her in managing negative thoughts.30 Dr Hay admitted that ED’s mental health worsened from January to July 2020 which corresponded with increases in her medication from 250mg in January, 300mg in March to 400mg in June (self- prescribed) and 400mg in July 2020 (prescribed by Dr Hay).31 [100] In our view, ED’s use of THC is likely to affect ED’s ability to care for children in her care, particularly young children with special needs or difficult behaviour. ED was clearly reliant on THC to help alleviate the symptoms of her medical conditions and the side effects of using THC include tiredness and impaired cognition from the sedative effect. We note ED’s evidence that she would only use it when the children were on contact and then not drive over the weekend. However, the children, even if not being driven places, would still need her to be alert and mentally and emotionally aware. We find it unlikely that this would have been the case if ED had taken THC on a Friday evening. We also consider it unlikely, given ED’s dependence, that she would have been able to confine its use to the weekend. Alternatively, assuming she had, it would explain, in part, her insistence on being given respite. [101] On balance, we find that ED’s mental health condition makes it difficult for her to care for L or for children of a similar age with similar behavioural issues and, because we cannot impose conditions on her certificate, is a factor against her having her foster carer certificate renewed. The full circumstances surrounding ED’s mental health 24 T1-43. 25 T1-42. 26 T1-76. 27 Ibid. 28 Ibid. 29 T1-79, referring to her clinical notes of 5 March 2020. 30 T1-80. 31 T1-84. -- 16 of 20 -- 17 were not known at the time her foster carer’s certificate was initially approved. This was due to ED not fully disclosing it. We understand the reasons why ED may have avoided disclosing details associated with events that caused her pain and led to her depression, anxiety and PTSD however, it is critical that the Department have that knowledge when assessing a person’s suitability to care for children, particularly when those children themselves have suffered trauma and have difficult and challenging behaviours. [102] ED has variously downplayed or exaggerated the extent of her mental health issues, depending upon the outcome she is seeking, which has made it difficult to assess the actual state of ED’s mental health and its impact on her ability to be a foster carer. That said, we find that in view of the fact ED has seen a psychologist regularly every 3 to 4 months for 16 years; that she is in receipt of a disability support pension for PTSD; that she takes medication for PTSD; that she takes medicinal cannabis to alleviate symptoms of PTSD (as well as endometriosis); and in view of the many other therapies she has undertaken in an effort to alleviate stress which can lead to a ‘loss of a day’, like meditation, Buddhism, art therapy and journaling, we find that ED’s mental health is a factor, at this point in time, that weighs against the renewal of her foster carer’s certificate. Relinquishing care [103] ED had been making threats to relinquish the care of A and L from November 2019. ED said that she had told the agency on six separate occasions that she was not willing to continue the placement without respite.32 [104] ED relinquished the care of A and L on 30 April 2020, after having cared for the children for 11 months. The next day, on 1 May 2020, ED asked for them to be returned to her, stating that she had “lost the plot yesterday”. L was at that time a young child with Level 2 Autism. It appears that ED found it difficult to manage L’s behaviour despite having him attend day care four to five times a week, sometimes for long periods of time, and having access to respite, though not as often as she would have liked. [105] We accept, as the Department has submitted, that although the event of relinquishment in itself is potentially damaging to the emotional health and security of the children, it is also the pattern of behaviour leading to that event that is important. We accept, as the Department submits, that the uncertainty of ED maintaining the placement would have impacted her emotional presence to the children and was likely to have affected her response to their physical, emotional and basic needs. [106] The situation within the care environment ultimately became heightened which is evidenced by the relinquishment, and then, when calm, by ED reneging on that reactive response. We find this behaviour to be erratic and had the potential to have seriously undermined the security and confidence of the children in her care. [107] We do not accept ED’s claim that her conduct was a “manufactured breakdown” to obtain more respite. We consider that ED was sufficiently caring and loving towards the children for her not to have taken that step unless she felt it necessary to do so. We find that ED had accepted at that time that the demands of the placement were too much for her and had acted accordingly, by relinquishing the children. In any event, 32 T2-103. -- 17 of 20 -- 18 even if it had been ‘manufactured’ that too would have indicated a lack of insight as to the harm such actions may have caused the children. Need for respite [108] ED submitted, in effect, that any problems she had with the placement, were due to the lack of support, principally in the form of a lack of respite, that she received from the Department. ED became increasingly frustrated with the lack of reliable and consistent respite, particularly for L. ED said that she needed respite most at the beginning of covid and over the Mother’s Day week when ED was particularly vulnerable. [109] While we accept that caring for L was particularly challenging and that ED’s arrangements for respite were not as definite or as frequent as she required, ED did, generally speaking, receive monthly respite for the period from August 2019 to April 2020.33 [110] In those circumstances, it is concerning that ED’s demands had such an overlay of desperation to them, including coupled with ongoing threats of relinquishment. In our view, in circumstances where respite can not be guaranteed, it is important that carers be able to demonstrate an ability to care for children notwithstanding a lack of respite. [111] We are not satisfied that ED has demonstrated such an ability. This does not of itself make ED not suitable for renewal of a foster carer’s certificate but it is, in our view, a relevant factor in assessing her suitability. Other relevant matters [112] ED said that she created a career where she could choose her work hours as she found she could not cope with the demands of fulltime employment.34 ED’s working history has been spent largely working in isolation as opposed to collaboratively. In our view, ED’s inability to cope with the demands of fulltime work is relevant to her ability to cope with the fulltime demands of being a foster carer, particularly of a young child with special needs and highly challenging behaviour.35 Although ED disputed this in the hearing, she then agreed that a person needed a certain amount of stamina to deal with a four year old with behavioural issues. ED said that this is why she would organise monthly respite so that she was organised for those days when she could not do ‘mathematical things’ which would ‘stress her out’.36 [113] ED had repeatedly stated to various members of the care team that she was not coping with L and that she held concerns for her ability to provide a placement for both children. ED said in emails and in conversations with members of the care team that she was “depressed” or “clinically depressed”. She also requested to change the nature of her carer’s role to that of respite carer as opposed to a primary carer. [114] Further, members of the Department also reported that ED’s engagement with them was at times ‘erratic’ and ‘highly distressed’.37 Mr Hopkins, Team Leader, stated that ED presented behaviours that indicated mental health issues, in particular in terms of 33 Excluding September 2019. 34 T1-44. 35 cf T1-52 where ED disputes this. 36 T1-52. 37 Ms Lambert, community visitor from Office of the Public Guardian, reported content of phone call with ED to her manager, Ms Martin on 22 April 2020: T1-17. -- 18 of 20 -- 19 her criticisms to members of the care team; an inability to compromise; and an inability to emotionally meet L’s needs. Mr Hopkins also said that ED had told him that the home was a “lot more stress free without L there”. [115] Ms Johnstone, former case worker at Althea Projects, said that she believed ED “burned out” and identified the “middle to the end” of the placement as the turning point. Ms Johnstone thought that ED’s definition of “support” differed to that being provided by the care teams. [116] ED had reported that she had placed L on the front veranda and locked him out of the unit when he had an outburst, indicating that she was unable to deal with his behaviour appropriately. [117] The Day Care Centre L attended at the relevant time reported that they had on occasions needed to contact ED to ask her to collect him and that there were times she was late in dropping him off. This was in the context of L attending the Centre from 8:30am to 9am to 6pm five days a week. We note that ED disputes this and said that she was only 5 minutes late once and only had insufficient food for him once. [118] ED reported issues with bathing/changing L and with getting him to sleep. ED said that the Melatonin she had been prescribed for L to help him sleep was not working. The current carers have not experienced the same issues and the Day Care Centre reported an improvement in his behaviours with his current carers. [119] We take into account that ED was a full-time carer/nanny for two young children in Melbourne for a year in 2003, one of whom had cerebral palsy. She also worked for another family on and off for 12 years where she had the care of a young girl with Down’s Syndrome and autism. ED was clearly highly valued by the families that she worked for, both of whom gave very positive evidence regarding her interaction with and care for their children. [120] We also take into account that ED has provided A and L with a loving home and a safe space for 11 months and that the children are both attached to her. We note also that Ms Scully, the children’s mother, was very happy with the care that ED provided and that A feels safe with ED and has expressed a wish to remain living with ED. [121] We accept that ED is well motivated and a loving carer for those children under her care. [122] We are of the view that ED at the time of the hearing was a suitable person to be a foster carer of A but not L. The nature of ED’s mental health conditions are such, in our view, that the extra stress associated with the care of L was a factor that caused ED’s mental health to decline. We accept that ED’s interactions with the Department and Althea Projects contributed to this but, in a sense, that was secondary to the demands of caring for L. Although we have found ED at the time of the hearing to be a suitable carer for A, we are constrained by the legislation, which does not permit us to grant a renewal of a carer’s certificate with conditions unless the certificate was already subject to those conditions.38 [123] We do not intend this decision to preclude ED from applying in the future for certification as a foster carer. 38 CP Act, s 134(7). -- 19 of 20 -- 20 [124] On balance, taking into account all the circumstances, we are of the view that the correct and preferable decision is to refuse to renew ED’s foster carer’s certificate at this point in time. For the reasons we have earlier provided, it follows that the decision to remove A and L from ED’s care is confirmed. -- 20 of 20 --