ABV v Department of Human Services, Community Services

Case •

[2013] NSWADT 134

•

12 June 2013

Administrative Decisions Tribunal


New South Wales

Medium Neutral Citation: ABV v Department of Human Services, Community Services [2013] NSWADT 134
Hearing dates:13 and 14 December 2012
Decision date: 12 June 2013
Jurisdiction:Community Services Division
Before: S Higgins, Deputy President
Professor P Foreman, Non-Judicial Member
Professor J Goodman-Delahunty,
Non-Judicial Member
Decision:

Decision of the respondent is affirmed.

Catchwords: Children and young persons -out-of-home care - authorised carer - cancellation of authorisation
Legislation Cited: Administrative Decisions Tribunal Act 1997
Children and Young Persons (Care and Protection) Act 1998
Children and Young Persons (Care and Protection) Amendment (Code of Conduct) Regulation 2013
Children and Young Persons (Care and Protection) Regulation 2012
Children and Young Persons (Care and Protection) Regulation 2000 (repealed)
Community Services (Complaints, Reviews and Monitoring) Act 1993
Category:Principal judgment
Parties: ABV (Applicant)
Department Human Services, Community Services (Respondent)
Representation: ABV (Applicant in person)
P Bartley, Department of Human Services, Community Services (Respondent)
File Number(s):124001
Publication restriction:Section 126 of the Administrative Decisions Tribunal

REASONS FOR DECISION

Introduction

  1. The applicant, ABV, seeks review of a decision of the respondent, the Department of Human Services, Community Services, to cancel her authorisation as an authorised carer under section 31 of the Children and Young Persons (Care and Protection)Regulation 2000 (2000 Regs). That decision was made on 14 June 2011. ABV sought internal review of that decision, as she was entitled to do. On 4 November 2011, the respondent determined that the original decision should be affirmed. It is that decision which is the subject of review in this application.

  1. There is no dispute that the decision of the respondent is a reviewable decision: see section 28(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993, section 245(1)(a) of the Children and Young Persons (Care and Protection) Act 1998 (the Act) and section 38 of the Administrative Decisions Tribunal Act 1997 (ADT Act).

  1. The role of the tribunal in reviewing the decision of the respondent is to 'decide what the correct and preferable decision is having regard to the material' before it, including (a) any relevant factual material, and (b) any applicable written or unwritten law: subs 63(1) of the ADT Act. In doing so the tribunal sits in the shoes of the respondent and considers the matter afresh, as at the time of the hearing.

  1. ABV's application was heard, on 13 and 14 December 2012, at Dubbo. At the commencement of the hearing ABV made an application for an adjournment as she did not have legal representation. The application was opposed and after hearing short argument from both parties, we refused that application. A further application for adjournment was made later that day. We again refused that application, as we were satisfied that ABV was able to deal with the matters in issue, especially as she had the assistance of a number of support persons also present at the hearing.

  1. At the conclusion of the hearing, we reserved our decision. In doing so we gave the parties an indication of our preliminary views on the matters in issue. Having considered all the relevant material, in accordance with our preliminary views, we have determined that the decision of the respondent should be affirmed. Our reasons for decision are set out below.

Relevant law

  1. Part 3 of Chapter 8 of the Children and Young Persons (Care and Protection) Act 1998 (the Act) makes provision for out-of-home care for children and young persons. Section 138 of the Act provides that arrangements for the provision of out-of-home care can only be made by a 'designated agency' or by a child's guardian. The respondent is a 'designated agency' and under section 137, it can authorise a person to be an out-of-home carer of a child or young person. If so authorised, that person becomes an 'authorised carer' under the Act and is required to comply with the provisions of that Act and the relevant regulations.

  1. ABV became an authorised carer on 24 October 2003 and the applicable regulations, made pursuant to the Act, were the Children and Young Persons (Care and Protection) Regulations 2000 (2000 Regs). Regulation 23 of these regulations provided that an authorised carer was to comply with the Code of Conduct for Authorised Carers as set out in Schedule 2 of the Regulations. That Code of Conduct relevantly provided:

2 Furniture, furnishings and equipment
The home must have:
(a) adequate furniture, furnishings and equipment for use by the children or young persons who reside at the home, having regard to their ages and physical and intellectual development, and
(b) adequate facilities for the preparation, refrigeration and hygienic storage of food and refreshments, and
(c) ...
(d) sufficient equipment suitable for the indoor and outdoor recreational needs of the children, having regard to their ages and physical and intellectual development, and
(e) ...
4 Care of children and young persons
The authorised carer must, in relation to each child or young person in out-of-home care, ensure that:
(a) the health, education, safety, welfare, well-being and progress of the child or young person are promoted, and
(b) the child or young person is encouraged to participate, as far as is reasonably practicable, in the ordinary life of the community, and
(c) ...
5 Bedrooms
The authorised carer:
(a) must provide adequate sleeping accommodation for each child or young person who resides in out-of-home care, and
(b) must ensure that sleeping accommodation that is provided for a child or young person in out-of-home care is appropriate for the age of the child or young person and takes into account the child's or young person's requirements for privacy, and
(c) must ensure that:
(i) each such child or young person is provided with a separate bed or cot, equipped with a clean and comfortable mattress and bed clothing that is appropriate to the climate, and
(ii) ...
7 Health and medical attention
(1) The authorised carer must ensure that each child or young person in out-of-home care is supplied with such medical and dental treatment as is necessary, and
(2) ...
9 Discipline of children and young persons
An authorised carer:
(a) must not physically coerce or physically punish a child or young person, and
(b) must, in any event, comply with the behaviour management policy of the designated agency.

  1. Regulation 30 of the 2000 Regs dealt with the management of children in out-of-home care. It provided:

30 Management of behaviour of children and young persons
(1) An authorised carer, in correcting and managing the behaviour of a child or young person in out-of-home care:
(a) must not use physical coercion or physical punishment, and
(b) must, in any event, use only behaviour management practices approved by the designated agency.
(2) An authorised carer who finds that the approved behaviour management practices are not sufficiently effective to correct or manage the behaviour of a child or young person is to notify that fact as soon as practicable to the designated agency.
(3) On receiving a notification under subclause (2), the designated agency, after assessing the situation, is to determine if the problem should be addressed:
(a) by providing appropriate advice, support and training to the authorised carer and appropriate support to the child or young person, or
(b) by changing the placement arrangements

  1. Regulation 31 of 2000 Regs set out the basis on which a designated agency could suspend or cancel a person's authorisation. It relevantly provided:

31 Cancellation or suspension of authorisations by designated agencies
A designated agency may, by notice in writing, cancel or suspend the authorisation of an authorised carer if the agency is of the opinion that the authorised carer:
(a) has failed to comply with any condition of the authorisation, or
(b) has failed to comply with any obligation or restriction imposed on the authorised carer by the Act or this Regulation, or
(c) ..., or
(d) has failed to uphold the Charter of Rights prepared under section 162 of the Act, or
(e) has failed to comply with the Code of Conduct for Authorised Carers ...

  1. The 2000 Regs were repealed on 31 August 2012 and were replaced with the Children and Young Persons (Care and Protection) Regulations 2012 (2012 Regs).

  1. Reg 34(4) of the 2012 Regs, as originally enacted was in similar terms to repealed reg 31(e) and the Code of Conduct for Authorised Carers was set out in Schedule 2 of the 2012 Regs. Reg 34(4) and Schedule 2 were repealed on 28 February 2013 with the enactment of the Children and Young Persons (Care and Protection) Amendment (Code of Conduct) Regulation 2013. That amending Regulation inserted a new reg 34(4), provides that a condition of an authorisation is that the carer comply with the 'code of conduct for authorised carers' as approved by the Minister and published on the relevant website of the respondent. The code of conduct on the respondent website is more comprehensive than the previous Code of Conduct in that it sets out what authorised carers are expected to do, as well as what they can expect to be provided with and what action can be taken if there is non-compliance with the code. One of the matters an authorised carer is expected to do is to maintain the rights of the child or young person in their care in accordance with the provisions of the NSW Charter of Rights for Children and Young People in Out-of-Home Care in NSW.

  1. Regulation 41 of the 2012 Regs deals with the management of behaviour, by an authorised carer, of children and young people in care. This provision is in similar terms to regulation 30 above.

  1. Regulation 42 of the 2012 Regs sets out the basis on which an authorisation can be cancelled or suspended. It provides:

42 Cancellation or suspension of authorisations by designated agencies
A designated agency may, by notice in writing, cancel or suspend the authorisation of an authorised carer if the agency is of the opinion that the authorised carer:
(a) is no longer a suitable person to be an authorised carer, or
(b) has failed to comply with any condition of the authorisation, or
(c) has failed to comply with any obligation or restriction imposed on the authorised carer by the Act or this Regulation, or
(d) has failed to comply with a written direction to the authorised carer by the designated agency or the Children's Guardian under section 157 (3) of the Act, or
(e) has failed to uphold the Charter of Rights prepared under section 162 of the Act.

  1. Section 9 of the Act sets out the principles under which the provisions of that Act, and the regulations made under it, is to be administered. It relevantly provides:

9 Principles for administration of Act
(1) This Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount.
(2) Subject to subsection (1), the other principles to be applied in the administration of this Act are as follows:
(a) Wherever a child or young person is able to form his or her own views on a matter concerning his or her safety, welfare and well-being, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child or young person and the circumstances.
(b) In all actions and decisions made under this Act (whether by legal or administrative process) that significantly affect a child or young person, account must be taken of the culture, disability, language, religion and sexuality of the child or young person and, if relevant, those with parental responsibility for the child or young person.
(c) ...
(f) If a child or young person is placed in out-of-home care, the child or young person is entitled to a safe, nurturing, stable and secure environment. Unless it is contrary to his or her best interests, and taking into account the wishes of the child or young person, this will include the retention by the child or young person of relationships with people significant to the child or young person, including birth or adoptive parents, siblings, extended family, peers, family friends and community.

The evidence

  1. At the hearing the respondent relied on two affidavits, sworn by its employees. These were an affidavit, (a) sworn on 26 April 2012, by Renee Moore, Manager Caseworker, and (b) affirmed on 16 July 2012, by Julianne Carroll, Manager Client Services. Attached to the affidavit of Ms Carroll were a number of additional affidavits by the following employees of the respondent:

  • Robert McKechnie, Caseworker;
  • Julianne Carroll affirmed on 7 July 2011;
  • Neil Goodwin, Acting Manager Casework;
  • Leanne Greenaway, Acting Manager Casework;
  • Leanne Biles, Aboriginal Caseworker.

  1. Also attached to the affidavit of Ms Carroll, affirmed on 16 July 2012, was a copy of a psychological report of Dr Natalie Greene dated 27 July 2011.

  1. During the course of the hearing, Mr Bartley, solicitor for the respondent, also tendered into evidence:

  • a copy of Dr Greene's curriculum vitae;
  • a copy of the respondent's running sheets in which Ms Jo Breeze, the Reportable Unit investigator, had recorded her telephone conversations with ABV, in March and April 2011;
  • a copy of a psychological report by Mr Stephen Ralph, a forensic psychologist dated 12 September 2012. The report had been prepared at the request of ABV's legal representative at that time. ABV did not rely on the contents of the report. However, the respondent did rely on the conclusions reached by Mr Ralph.

  1. The applicant filed into evidence an affidavit sworn by her on 18 June 2012.

  1. During the course of the hearing, Ms Breeze, Dr Greene, Ms Biles and Ms Greenaway gave oral evidence and were cross-examined by ABV and her support person, Ms Riley.

Factual background to the decision to de-authorise ABV

  1. As we have mentioned, ABV became an authorised carer on 24 October 2003. She was approved as a carer for children on a long term, short term, respite and crises basis. In authorising her, the respondent also said it would endeavour to only place children with her who were under the age of 10. The first placement into her care was on 8 November 2003. Between that date and 28 October 2010, the respondent placed 35 children into the care of ABV. Many of these were short-term placements, but many were also long term placements.

  1. ABV has not had any children in her care since 28 October 2010, when the respondent removed the four children who were in her care at that time. The grounds on which the respondent removed the four children from her care are essentially the same grounds relied on by the respondent in deciding to cancel ABV's authorisation. Accordingly, it is necessary to set out these grounds in some detail, especially as ABV asserts she has not been treated fairly, or been given an opportunity to respond to allegations made against her.

  1. Of the four children in ABV's care, child A and child B (siblings) had been in ABV's care since March 2006, after the respondent had removed them from the care of their birth mother. At the time, child A, a boy, was 8 years of age and child B, a girl, was 4 years of age.

  1. The other two children in ABV's care, child C and child D (also siblings and cousins of child A and child B) were placed into ABV's care in August 2008. The respondent had also removed these two children from the care of their birth mother. At the time, child C, a girl, was 10 years of age and child D, a boy, was 8 years of age. During 2009, ABV informed the respondent about a number of incidents of unacceptable behaviour of child C, which were causing her concern.

  1. On 8 December 2009, the respondent received three incident reports about child A, child B and child C. The reports concerned allegations of physical discipline and psychological abuse, by ABV, while the children were in her care. These reports were referred to the Allegations Against Employees Unit (AAEU) for investigation. The Unit is based within the respondent department and is responsible for investigating 'reportable conduct', which includes reports of alleged physical abuse and physical discipline.

  1. Six months later, on 25 June 2010, the AAEU wrote to ABV advising her of the allegations. In the letter to ABV, the respondent identified nine alleged incidents, seven of which involved allegations of physical abuse/discipline and the remaining two involving alleged negative commentary by ABV about the children, their family and their rights.

  1. In regard to the alleged incidents of physical abuse/discipline, four were alleged to have occurred in December 2008, one was alleged to have occurred in August 2009, and the remaining two were alleged to have occurred 'on numerous occasions'.

  1. The AAEU completed its investigation in regard to the allegations in July 2010. It did so without interviewing the children as the incidents had occurred 'a long time ago'. Instead the AAEU made its findings on the basis of the material provided by the case-workers and the response received from ABV. In summary, it found that of the seven allegations of physical abuse/discipline, one allegation was sustained. This was the allegation that ABV hit child C on numerous occasions. In making that finding the AAEU said 'Whilst the investigation found that an incident did occur, it was considered to be of a minor nature.' In regard to the other allegations, the AAEU found that these did not involve reportable conduct as the allegations were not specific and there was 'no evidence of physical harm' to the children and 'no issues of neglect' appeared to have been made in these allegations.

  1. Nevertheless, the AAEU recommended:

  • a placement review for child A, child C and child D,
  • a carer review of ABV, the focus of which was to be whether ABV 'requires any training and support for "caring for children"', and
  • ABV be advised that 'her conduct in relation to smacking children is against the Authorised Carer's Code of Conduct and that physical discipline is not appropriate for children in her care' and that she be advised that any future allegations would be treated more seriously.

  1. On or about 4 August 2010, the AAEU wrote to the Ombudsman and provided him with a copy of its investigation report. The Ombudsman responded to the AAEU, in a letter dated 31 August 2010. In that letter the Ombudsman noted that ABV had not been offered a face to face interview or telephone discussion but was only offered 'one avenue for response' to the allegations, the children had not been formally interviewed, and there had been delays of over twelve months between the allegations having been made and the investigation having commenced. The Ombudsman noted the AAEU recommendations and requested that he be provided, by 22 October 2010, with advice as to the implementation of the recommendations, including copies of the placement and carer reviews. The Ombudsman also suggested that 'Aboriginal consultation be considered in the implementation of these recommendations.'

  1. On 12 October 2010, Ms Leanne Biles and Ms Roz Loriner, visited ABV at her home to inform her about the placement review and also the carer review recommended by the AAEU. ABV was informed that Ms Biles, an Aboriginal Caseworker, had been allocated to do a placement review and Ms Loriner had been allocated to do the carer review. On this day, Ms Loriner gave ABV a copy of the carer's Code of Conduct and at the request of ABV she read the contents out to her. ABV then signed the bottom of the document acknowledging that she had read and understood the terms of the Code of Conduct.

  1. On 27 October 2010, Ms Biles, together with another Aboriginal Caseworker, Ms Leanne Greenaway attended the school of child C for the purpose of interviewing her about her placement with ABV. Child C informed the caseworkers that she was not very happy being placed with ABV. She is recorded as having said ABV 'growls' at her and that she does not give her enough freedom.

  1. The following day, 28 October 2010, Ms Biles and Ms Greenaway again interviewed child C at her school. During that interview, child C is recorded as having said:

'I'm going to tell you what she did last night.
I went into my room because the other girl was annoying me and I had the door closed, the Fostercarer (sic) came in and grabbed me, scratched my nose (injuries sighted; right hand side behind ear about 3cm long, right shin below knee, deep scratch to nose).
She grabbed me and dug her fingers in.
I then was sitting on my bed ... She then shaped up to me, grabbed me by the arm and said "I'm going to give you something to show them."'

  1. At the conclusion of the interview, Ms Greenaway told child C that she and Ms Biles would be talking to child A, child B and child D and they would be looking for another placement for her.

  1. On the same day, Ms Biles and Ms Greenaway spoke to child A, who attended the same school as child C.

  1. Accompanying child A at the interview was an Aboriginal teacher's aide as his support person. The record of the interview with child A states that he also said he did not like it very much at ABV's place as she 'gets growly sometimes' and when she does she 'chucks the scooter' and has hit him with a broomstick on the leg. He said he slept in the same room as ABV and that he would like to sleep in his own room. He went on to say that he did not want to live there long term and that he liked school better than home. He said that ABV would not let him stay at friends' places but sometimes he did go to friends' places on a Saturday. He said he did not feel safe and that he and child D were fighting and ABV's adult grandson grabbed him by the neck.

  1. Ms Biles and Ms Greenaway spoke to child D and his teacher at his local primary school. Child D's teacher is recorded as having said that child D was very sad at ABV's place, he came to school with sores on his leg and ABV would not attend meetings about child D or attend plays and activities in which he was involved. The teacher is also recorded as having said that ABV would not allow child D to participate activities, organised by the school, after school hours and that child D's uniform was often unclean and he came to school when he was sick. It is also noted Ms Greenaway explained to the teacher that child D could be placed into a new placement.

  1. In the respondent's record of Ms Biles and Ms Greenaway's interview with child D, it is noted that child D said he did not like it at ABV's and that, on the previous evening, she had scratched his sister (child C) on the nose and neck. It is noted that child D said he liked sleeping in ABV's bedroom because he 'gets scared'. He said he and child A sleep in the bunk bed in ABV's room. He explained that ABV and child B also sleep in the room in separate single beds. Child D is recorded as having said that ABV hit him with a wooden stick. He said he could not remember the last time this had occurred. It is noted that child D became upset during the interview and when Ms Greenaway asked if he was alright to go back to ABV's home that day he said 'I'm alright to go home'. It is noted, Ms Greenaway told child D, 'if you get frightened you can ring the police' to which child D said 'she won't let us go near the police.'

  1. On their return to the office that day, Ms Biles and Ms Greenaway reported to their manager, Mr Neil Goodwin, on what they had been told by the children. Mr Goodwin decided that all four children should be immediately removed from ABV's care. Accordingly, Mr Goodwin instructed Ms Greenaway and Mr Robert McKechnie, to remove the children from ABV's care that afternoon. In a letter addressed to ABV, Mr Goodwin set out his decision to remove the children from ABV's care and the basis on which he had made that decision, namely that 'three of the children in your care have disclosed physical and psychological abuse'. No details of the alleged disclosures were provided. The letter went on to inform ABV of her review rights (i.e. apply, within 28 days, to have the decision reviewed internally).

  1. Ms Greenaway and Mr McKechnie attended ABV's home late that afternoon and removed all four children. ABV was not there, however her daughter was there. It should be noted that the children did not at any time return into ABV's care. However, ABV did seek an internal review, followed by an external review by the tribunal (file no 114011 lodged on 14 March 2011) of the decision of the respondent to remove the children from her care. Subsequently, on 8 September 2011, ABV withdrew her external review application in regard to the decision to remove the children from her care. This withdrawal occurred shortly after ABV was informed of the respondent's decision to de-authorise her as an authorised carer.

  1. On the day after the removal of the children from ABV's care (i.e. 29 October 2010), Ms Biles and Ms Greenaway again interviewed

  1. child C. That interview centred on what had occurred on the evening of 27 October 2010.

  1. On or about 29 October 2010, the respondent forwarded to the Reportable Conduct Unit (RCU) (formerly the AAEU), the allegations made by the children during the interviews of 27, 28 and 29 October 2010.

  1. Some four months later, Ms Jo Breeze of the RCU prepared an investigation plan in regard to the allegations. In accordance with that plan, Ms Breeze, interviewed each of the four children on 24 March 2011. Prior to this, Ms Breeze had telephoned ABV a number of times asking her whether she wanted to participate in an interview. The first occasion was on 8 March, when ABV advised that she was awaiting contact from AAEU in regard to the allegations that had been made in October when the children were removed. She is recorded as having said that the children should not have been removed and that child C was a troublemaker. The next time was 14 March when ABV is recorded as having said that she was not allowed to talk to anyone from the respondent and that she did not 'hit kids'. At the time ABV had legal representation and her application seeking review of the decision to remove the children from her care was pending before the tribunal. On 15 March 2011, ABV is recorded as having said that she had decided not to participate in an interview as she had resigned herself to the fact that she was not going to get back the children.

  1. On 11 April 2011, Ms Breeze telephoned ABV and informed her of the terms of the allegations that had been made. ABV requested that these be forwarded to her in a letter, which was sent that day. That letter identified nine allegations, eight of which were alleged physical abuse/discipline of child A (3), child B (1), child C (2) and child D (2) and one allegation of allegedly having told child C that she would pay her grandmother to hit her. The letter also reiterated ABV's right to respond to the allegations.

  1. Ms Breeze made a follow-up telephone call to ABV on 20 April 2011. ABV is recorded as stating that she would not be responding to the allegations and that she would leave it up to the tribunal.

  1. Ms Breeze completed her investigation on or about 1 June 2011. In her investigation report, Ms Breeze, found that seven of the eight allegations of physical abuse/discipline had been 'sustained'. These were:

  • ABV allegedly threatening to hit child D on the leg with a wooden stick/broomstick/mop handle on more than one occasion;
  • ABV allegedly hit child A on the leg with a wooden stick/broomstick/mop handle on more than one occasion;
  • ABV allegedly hit child A with a metal stick/pole;
  • ABV allegedly hit child D with a shoe on the leg and arm;
  • ABV allegedly hit child A with a shoe;
  • ABV allegedly grabbed child C's right leg digging in her fingernails and raised her fist, scratching her nose, behind the knee and neck on 28 October 2010; and
  • ABV allegedly grabbing child C, pulling her hair and holding her arm behind her back causing her to cry.

  1. The allegation made in respect of child B was found not to be sustained and the allegation of allegedly having told child C that she would pay her grandmother to hit her was confirmed, but found not to be 'reportable conduct' as it did not involve the threat of immediate force.

  1. In her investigation report, Ms Breeze recommended ABV's 'status as a carer should be reviewed with consideration given to de-authorisation.'

  1. In July 2011, the respondent engaged Dr Natalie Green to undertake a psychological assessment of the children and their relationship/attachment to ABV and also an assessment of ABV and her capacity to care for the children. This assessment we understand was prepared for the purpose of the applicant's application seeking review of the respondent's decision to remove the children from her care.

  1. On 27 July 2011, Dr Green provided her psychological assessment report to the respondent. Dr Green's report is comprehensive and she concluded by recommending that the children remain in the care of their current carers and that ABV was not coping with caring for the children. Dr Green noted that her observations of ABV were in considerable contrast from the time ABV had been assessed initially, which she said was 'likely due to [ABV's] compounded grief' and that ABV 'would benefit from assistance with learning to cope.'

  1. On 1 August 2011, the respondent wrote to ABV informing her that a decision had been made to cancel her authorisation as an authorised carer. On 25 August 2011, ABV wrote to the respondent seeking an internal review following the decision to cancel her authorisation. In that letter she stated that she was seeking review as 'no assessment process ever took place.' She went on to state that at no time had she been interviewed by the respondent or AAE and while the respondent's letter spoke about 'equity and fairness' this had not been shown by any of the departments involved in the matter concerning her and the children who had been removed from her care in October 2010.

  1. On 13 December 2011, the respondent wrote to ABV notifying her of the outcome of its internal review determination. In that letter the respondent advised that the internal reviewer had affirmed the decision on the basis of the substantiated allegations of 'physical assault' against three of their children who had been in her care.

  1. On 10 January 2012, ABV lodged this application seeking review of the decision to de-authorise her as a carer.

  1. The remaining evidence before the tribunal is dealt with below in the context of our consideration of the matters in issue.

Consideration

  1. As we have noted, the role of the tribunal is to determine whether the decision of the respondent is the correct and preferred decision having regard to the material before it, including any relevant factual material and applicable law: see subs 63(1) of the ADT Act.

  1. At the time of hearing ABV's application, the relevant power of cancellation in force was reg 42 of the 2012 Regs. However, the relevant power of cancellation in force at the time the respondent made its decision was reg 31 of the 2000 Regs. Reg 31 was also the relevant power of cancellation in force at the time ABV lodged this application for review. As we have pointed out both powers of cancellation are discretionary in that even where one or more of the specified grounds of cancellation are established, there remains a discretion as to whether an authorised carer's authorisation should be cancelled or suspended. That discretion, in our view, is to be exercised in accordance with the objects and principles of the Act (see s 8 and 9 of the Act the latter of which is set out, in part, at paragraph 14 above).

  1. We heard no argument as to which regulation was the applicable one for the purpose of determining this application. Nor do we consider it necessary to do so as in our view the grounds for cancellation and suspension in these regs are essentially the same. The only difference is that reg 42 prescribes a new ground for cancellation or suspension. That ground being reg 42(a) (i.e. where the authorised carer is no longer a suitable person to be an authorised carer). In our view, nothing turns on this, as, on its proper construction, a relevant factor when exercising the discretion under reg 31 is the suitability of the person as an authorised carer.

  1. Mr Bartley, on behalf of the respondent contended, that the decision of the respondent was justified on the basis of ABV having breached a number of requirements in the Code of Conduct for Authorised Carers (Code of Conduct), which ABV had acknowledged she was bound to observe. Mr Bartley argued that, based on the material before the tribunal, ABV had breached the following requirements of the Code of Conduct in that she had:

  • failed to have adequate facilities for the preparation, refrigeration and hygienic storage of food and refreshments, or sufficient equipment suitable for the indoor and outdoor recreational needs of the children (para 2(b) and (d));
  • failed to ensure that the health, education, welfare, well-being and progress of the children were promoted and failed to encourage the children to participate, as far as is reasonably practicable, in the ordinary life of the community (para 4(a) and (b));
  • failed to provide adequate sleeping accommodation for the children (para 5(a));
  • failed to ensure that the children were supplied with such medical and dental treatment as was necessary (para 7(1)); and
  • physically coerce or physically punish the children (para 9).

  1. In this regard, the respondent again relied on the findings and observations of Ms Breeze and Dr Green in their respective reports.

  1. The report of Ms Breeze, we note, centred on issues of physical punishment as reported in late October 2010. Dr Green's report was more comprehensive and included her observations and opinions of the children, ABV and ABV's home.

  1. At the hearing, in response to the findings of Ms Breeze, ABV said that in her culture it was the usual and accepted practice for children to sleep in the same room with an adult, especially an elder. ABV also disputed that she had hit child C on the evening of 27 October 2010, or that she had hit the children as alleged. She also pointed out that at the time the children were removed from her care that neither child A, child B or child D were seen to have any bruising on them. However, we note that ABV did acknowledge to Ms Breeze, in a telephone conversation, on 8 March 2011 that she had said to child C that she was going to give her granddaughter $20 'to bash you'. We also note that ABV immediately said that she knows that she should not have said what she did.

  1. In our view, it is difficult to discern from the report of Ms Breeze, which, if any, of the alleged incidents of physical abuse/discipline (other than that which occurred on 27 October 2010) had occurred subsequent to the allegations that had been made in December 2009. It would appear that Ms Breeze did not seek such specifics. Accordingly, it is difficult to ascertain whether these allegations as set out by Ms Breeze were no more than a restatement of the allegations that had previously been made or whether they were new allegations of a similar kind.

  1. In her oral evidence, Dr Green conceded that when she interviewed the children, some 9 months after their removal from the care of ABV, that their respective memories of their time at ABV's home would not be that clear. She also conceded that she had not specifically been instructed to assess ABV's ability to care for the children. Her primary role was to assess the children and their attachment to ABV at the time she interviewed them. Dr Green also acknowledged that the removal of the children from ABV's care some 9 months previously would significantly impact on the level of attachment at the time she made her assessment.

  1. As the children's attachment to ABV is not relevant to this application, we have considered it no further. However, Dr Green's observations of ABV generally in regard to her role as an authorised carer are relevant. In this regard, Dr Green said that ABV appeared to rule 'her house with strict guidelines as far as swearing and insisting that people in her house "do things her way or leave". Indeed she is quite rigid in this respect, ...'

  1. In his report, Stephen Ralph, psychologist, concluded by saying:

'...[I] am mindful that Ms Green in her assessment of [ABV] has often referred to statements attributed to [ABV] that cast her in a very negative light. Some allowance, however, should be made for the fact that [ABV] is an Aboriginal woman from a generation where stoicism, unquestioning respect for elders, and repression of feelings and emotions were part and parcel of the hardship of everyday life. To expect her to be fully equipped to deal with contemporary challenges and rapidly changing expectations about raising children, and to manage the sometimes confusing expectations and demands of the Department concerning the care of children is somewhat unrealistic in my opinion.
It is my view that [ABV] is well meaning and genuinely desires to help others, but that for various reasons she is poorly equipped to meet the challenges that currently exist in providing for those vulnerable and often difficult children who come into the care of the Department.'

  1. From our observations of ABV and the material before us, we agree with the conclusions of Mr Ralph. In some respects his observations are consistent with those of Dr Green.

  1. Nevertheless, the question is whether ABV has breached the Code of Conduct and if she has whether the discretion should be exercised to cancel her authorisation.

  1. On the material before us, we find that ABV has breached the Code of Conduct to the extent that she physically punished child A, child C and child D while in her care and that she failed to provide adequate sleeping accommodation for the children. While ABV denied that she hit the children, in our view there is sufficient material before the tribunal to make a finding to this effect. We accept that the alleged hitting by use of, or threatening to use a wooden stick/broom stick/mop handle was made in the context of rendering discipline or punishment. How often this occurred is not clear, but even if it only occurred once or occasionally this amounts to a breach of the Code of Conduct. In regard to child A, child B and child C sleeping in the same room as ABV, we accept ABV believed she was acting appropriately. What is of concern is that she made no enquiries of the respondent as to whether this was in fact appropriate for children placed into her day-today care as an authorised carer. Nor did the respondent appear to have made any enquiries about the sleeping arrangements, when it had ample opportunities to do so. In any event, we accept that the sleeping accommodation for the children at ABV's home was not appropriate for the children in her care and ABV's inability to appreciate this is of concern.

  1. We also find that more generally, on the material before us, that as at the time of the hearing ABV demonstrated a lack of understanding of the requirements to be authorised as an authorised carer. We accept that this lack of understanding, in part, might be attributable to her experiences when growing up and a failure, by the respondent, to fully explain what was required of her.

  1. At the same time we understand ABV's frustration about the manner in which the decision to remove the children and the subsequent decision de-authorise her were made. As we have explained, prior to 12 October 2010, the respondent did not appear to question ABV's ability to care for children as an authorised carer. Nor is there any evidence that the respondent explained to her what was required of her as an authorised carer and if she failed to meet those requirements what the consequences may be. However, having been informed about what was required of her, in October 2010, it is difficult to understand why she refused to co-operate with the investigation conducted by Ms Breeze some 5 months later. ABV explained that she had been advised by her then lawyer not to co-operate. This we note is inconsistent with what is recorded in Ms Breeze's file note of her telephone conversation with ABV on 15 March 2011. In that note Ms Breeze recorded that ABV said she had not spoken to her solicitor and that she had decided herself not to participate in an interview.

  1. On the basis of our findings, in our view, the decision of the respondent to cancel ABV's authorisation is the correct and preferred decision.

  1. We note that in pressing her application for review, ABV did not necessarily wish to have more children placed into her care on a full time basis. Her motivation, she explained, in pursuing this application was to clear her name. As we explained this is a protective jurisdiction where the safety, welfare and well-being of the child and young person are paramount and the essence of our findings and those of the respondent is that, as at the time of the hearing, ABV is not a suitable person to be an authorised as an authorised carer under the Act. This is no reflection of how she is, or should be regarded as a person more generally. As these proceedings have demonstrated, to be authorised as a carer, it is necessary to meet the standards for such a role, as prescribed by Parliament. For the reasons we have given, we cannot be satisfied that ABV has the ability to meet aspects of those standards.

  1. Accordingly, the appropriate order is to affirm the decision of the respondent.

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Decision last updated: 12 June 2013

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