AEM and AEL v Life without Barriers
[2012] NSWADT 240
•21 November 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: AEM and AEL v Life without Barriers [2012] NSWADT 240 Hearing dates: 10, 11, 12, April and 25 June 2012 Decision date: 21 November 2012 Jurisdiction: Community Services Division Before: L Goodchild, Judicial Member
M Bolt, Non-Judicial Member
P Foreman, Non-Judicial MemberDecision: That the decision made by Life Without Barriers to cancel the authorisation of AEM and AEL be set aside. The parties have leave, should they consider it necessary, to re-list the matter with respect to the proceedings concerning ACZ.
Catchwords: Revocation of carer authorisation Legislation Cited: Children and Young Persons (Care and Protection) Act 1998
Children and Young Persons (Care and Protection) Amendment (Out-of-Home Care) Regulation 2003
Children and Young Persons (Care and Protection) Regulation 2012
Administrative Decision Tribunal Act 1997Cases Cited: YG & GG v Minister for Community Services [2002] NSWCA 246
Warsow v Warsow[2010] FamCA 591.
Fairfield City Council v WI [2012] NSWADTAP 39Category: Principal judgment Parties: AEL (First Applicant)
AEM (Second Applicant)
Life Without Barriers (Respondent)Representation: Counsel
Mr Harper (Applicant)
M. Weightman (Respondent)
Burke Elphick and Mead (Applicant)
Moray & Agnew Lawyers (Respondent)
File Number(s): 114029 Publication restriction: S126 of the Administrative Decisions Tribunal Act applies
REASONS FOR DECISION
That the decision made by 'Life Without Barriers' to cancel the authorisation of AEM and AEL be set aside.
Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides:
126. Publication of names or identification of persons involved in certain proceedings.
(1A) ...
(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:
(a) who appears as a witness before the Tribunal in any proceedings, or
(b) to whom any proceedings before the Tribunal relate, or
(c) who is mentioned or otherwise involved in any proceedings before the Tribunal, whether before or after the proceedings are disposed of.
Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
STATUTORY PROVISIONS
The decisions the subject of these proceedings are decisions taken under the Children and Young Persons (Care and Protection) Act 1998 ("the CYPCP Act") and regulations.
The objects of the CYPCP Act are set out at section 8 and provide as follows:
(a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and
(b) that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and
(c) that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment.
The principles to be applied in the administration of the CYPCP Act are contained at section 9 and provide as follows: -
(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) In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child's or young person's development.
(d) If a child or young person is temporarily or permanently deprived of his or her family environment, or cannot be allowed to remain in that environment in his or her own best interests, the child or young person is entitled to special protection and assistance from the State, and his or her name, identity, language, cultural and religious ties should, as far as possible, be preserved.
(e) If a child or young person is placed in out-of-home care, arrangements should be made, in a timely manner, to ensure the provision of a safe, nurturing, stable and secure environment, recognising the child's or young person's circumstances and that, the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement.
(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.
Chapter 8 of the CYPCP Act provides a model for the organisation of out-of-home care for children and young people. Statutory out-of-home care may be provided in respect of a child and young person only by an authorised carer (s136).
The CYPCP Act and Regulations make provision for the making and determination of applications for the authorisation of persons as authorised carers (s 137(2)(a)), for the imposition of conditions of authorisation (s 137(2)(c)) and for the cancellation or suspension of an authorisation (s 137(2)(e)). The Children and Young Persons (Care and Protection) Amendment (Out-of-Hone Care) Regulation 2003 provides for the authorisation of authorised carers and sets out the requirements and the code of conduct for authorised carers (now repealed and replaced by Children and Young Persons (Care and Protection) Regulation 2012). Regulation 31 provides for the cancellation or suspension of the authorisation of an authorised carer. The CYPCP Act defines a designated agency as the organisation that arranges the provision of out-of-home care (s 139(1)). The designated agency that places a child or young person in out-of-home care of an authorised carer has a responsibility to supervise the placement (s 140). Pursuant to Chapter 8 Part 4 of the CYPCP Act the authorised carer of a child or young person has defined authority with regard to the daily care and control of the child and with regard to physical discipline of a child or young person.
The decision to remove children from the daily care and control of the applicant is reviewable by this Tribunal. (s 245(1)(a) and (c) CYPCPA read in conjunction with s. 38 Administrative Decision Tribunal Act 1997 and s 28 Community Services (Complaints, Reviews and Monitoring) Act 1993). In conducting this review, the Tribunal stands in the shoes of the administrator and is required to determine what is the correct and preferable decision having regard to all relevant material. We may have regard to all material that was relevant at the time the original decision was taken as well as any further material that is relevant as at the time of the hearing(Administrative Decisions Tribunal Act 1997 s 63 and s 115; YG & GG v Minister for Community Services [2002] NSWCA 246 at [25]). On review, we may decide to affirm the decision, to vary the decision, to set aside the decision and make a decision in substitution for it or to set it aside and remit it back to the Administrator (Administrative Decisions Tribunal Act 1997 s 63 (3)).
HISTORY
The respondent, Life Without Barriers ("LWB"), is a designated agency for children in out-of-home care based in Newcastle.
ACZ is an authorised carer. She has 2 children in her care. Those children are A (DOB 08.04.2001) who is 11 years old and M (DOB 03.03.2000) who is 12 years old. They have been in the care of ACZ from the ages of 1 and 2, respectively. ACZ also has the care of her daughter G who is 16 years of age.
AEL is the mother of ACZ. AEL has been married to AEM for nearly 25 years. The respondent contends that both AEL and AEM are authorised agency foster carers and have been so authorised since 2003. AEM contends that he is not an authorised foster carer. There is a dispute in these proceedings as to whether AEM has actually ever been authorised as a foster carer. We find he has been. The reasons for that finding will be referred to later in these reasons.
AEL and AEM reside in a self-contained downstairs section of a residence. AEL and AEM own the residence. ACZ resides upstairs in the same residence with her daughter G and the 2 foster children. The residence is located in a suburb of Newcastle in New South Wales. The parties have been residing at these premises for a number of years.
By correspondence dated 28 April 2011 from Ms Barbara Dow, Area Operations Manager of the agency, ACZ was informed that following the finalisation of a reportable conduct investigation undertaken by LWB Investigations Unit concerning AEM, AEM was considered by the agency to pose a potential risk of harm to children in his care. Ms Dow advised ACZ that if she was to continue to care for the foster children she was to ensure that AEM have no unsupervised contact with the foster children.
By correspondence dated 14 June 2011 from LWB to ACZ, ACZ was informed that the agency was taking steps to remove the foster children from her care. The agency stated that the steps to remove the children were required because the following options put to ACZ had not eventuated:-
(a) To relocate with the foster children to another suitable residence away from the shared home at an address in New South Wales; or
(b) For AEM and AEL to relocate from the shared home at the same address so as to prevent AEM interacting with the foster children.
ACZ was advised that she was required to make a decision as to what option she would take by 5 pm on Monday, 13 June 2011. On the face of the correspondence of 14 June 2011, it is stated that as ACZ did not make contact with the agency in regards to the decision as required, the agency had no option but to proceed to take steps to remove the children from her care.
By correspondence dated 16 June 2011, the agency purported to cancel the authorisation of AEM and AEL as authorised carers under the Act.
ACZ filed an Application for Review of a Decision with this Tribunal on 26 May 2011 and, at the same time, filed an Application for a Stay of a Reviewable Decision. The application for review of that decision is the subject of separate proceedings.
AEM and AEL filed an Application for Review of a Decision with this Tribunal on 19 July 2011 and, at the same time, filed an Application for a Stay of a Reviewable Decision. That application for review seeks a review of the decision to cancel the authorisation of AEM and AEL as authorised carers under the Act. That application is the subject of these proceedings.
On 16 June 2011, this Tribunal made an order by consent staying the decision to remove the children from ACZ's care, on condition that ACZ ensure that AEM have no unsupervised contact with the children. The stay is to remain in effect until the determination of the proceedings or otherwise ordered by the Tribunal.
The matters of ACZ, AEM and AEL have been procedurally travelling together. On the first day of the hearing on 10 April 2012, it was agreed by all parties that the determination of ACZ's proceedings should await the resolution of matters AEM and AEL by this Tribunal.
Proceedings AEM and AEL were heard on 10, 11 and 12 April and 25 June 2012.
BACKGROUND TO THE DECISIONS THE SUBJECT OF REVIEW
The background to the decision the subject of the review is as follows:-
In October 2010, the Department of Community Services ("DOCS") advised LWB that an anonymous Helpline reporter had made allegations against AEM. The effect of the allegations was that AEM had sexually assaulted his stepdaughter, AH (AEL's daughter) and that he had sexually assaulted AW (AH's daughter).
On 19 October 2010, a Preliminary Information Report was registered with LWB's Investigation Unit and on 21 October 2010, the Manager of Case Work completed an initial Risk Assessment. The initial risk assessment characterised the conduct the subject of complaint as reportable conduct. The NSW Ombudsman was notified of the allegation and LWB initiated an investigation that was overseen by Greg Bennett the LWB Investigation Manager.
Mr Bennett deposes that, in the course of the investigation, he became aware of the following matters:
7.4...
7.5 In 2006, allegations were made to CS by AEM step-daughter, AH, that AEM sexually abused her when she was 15 years of age. Annexed hereto and marked with the letter "A" is a true copy of the NSW Police Report obtained by LWB in relation to this notification;
7.6 LWB was notified of the allegation at the time, though did not actively investigate the matter, rather deferring to CS who conducted an investigation.
7.7...
7.8 As a result of the interviews and investigations, CS did not take any formal action in relation to the matter. Therefore LWB abided by the decision of CS in this respect;
7.9 ACZ continued to provide care to the children A and M during the course of the investigation; and
7.10 The allegations made against AEM in October 2012 to the Helpline were substantially similar to those previously investigated by CS in 2006.
The NSW Police Report obtained by LWB and annexed to Mr Bennett's affidavit was a report from the Newcastle Local Area Command dated 15 November 2010 addressed to Mr Bill Jardine from the Sergeant of Police and provided the following excerpt from the COPS Event Ref No. E29167769:-
"On 11/12/2006, a report of two children at risk of harm was received at Newcastle JIRT from the DOCS Helpline in relation to Plan No. A and M aged 5 and 6 years, respectively. The report does not contain any disclosure of sexual abuse by either of these children, the information in the report is that there is a risk of sexual harm to the children given the alleged historical abuse perpetrated by AEM. It is also alleged in the report that AEM had sexually abused the reporter's daughter when she was 8 years of age and had attempted to molest the reporter when she was 15 years of age. This report does not require a JIRT response and is rejected. Report referred to Charlestown CSC-DOCS for their attention."
Mr Bennett deposed in his affidavit that the LWB investigation focused on two allegations:-
(1) That in 1980, AEM sexually assaulted his step-daughter, AH (nee ....), then 15 years old, in a bedroom of the residence at Mayfield West; and
(2) That between 1994 to 1995, AEM sexually assaulted his step-daughter, AW then 8-9 years old, in a back shed that was used as a music room of the residence at Mayfield West.
Mr Bennett allocated the investigation to an agency internal investigator Mr Bill Jardine. Mr Jardine conducted face-to-face interviews with persons involved in the complaint. The investigation culminated in a final report. At the conclusion of the investigation, it was found that whilst there was some evidence of weight to support the two allegations, it was recommended that the finding for both allegations be: Not Substantiated: Insufficient Evidence.
As a result of this finding and in accordance with the Ombudsman's Guidelines and the Commission for Children and Young People Guidelines, a Category II notification was prepared and forwarded to the Commission for Children and Young People. AEM was informed of the finding by letter dated 6 April 2011 and advised of the available review process. AEM requested a formal and independent review of the investigation findings. A formal review was undertaken confirming the original investigation. As a result the agency commenced the process to de-authorise AEM as a carer.
In May 2011, Barbara Dow, Area Operations Manager for Hunter and Central Coast LWB, reviewed the investigation report prepared by Greg Bennett. Ms Dow undertook a risk assessment with respect to the welfare of the children. The risk assessment was undertaken employing a risk assessment matrix provided by the NSW Ombudsman. The risk assessment rating was assessed to be extreme based upon the likelihood of the event having occurred as possible. Upon completion of that risk assessment, Ms Dow determined that unless there was a change in the domestic arrangements for the children, it would be necessary to remove the children from the care of ACZ.
A further consequence of that risk assessment was the recommendation that AEM be de-authorised as a respite carer. As a necessary and logical consequence of the de-authorisation of AEM as a foster carer, it was recommended that AEL be de-authorised as a carer as AEM and AEL were assessed as a couple and AEL could not effectively remain an authorised carer if AEM is de-authorised.
Evidence at the hearing showed that DOCS undertook an investigation into both of the allegations in 2006. The DOCS could not locate the primary documents in relation to that investigation as they had been destroyed by floodwater. It is apparent, however, that no action was taken as a result of that investigation. The LWB records that after investigation "it was found that there was no basis to the allegation and no risk to the children".
THE EVIDENCE
The Complaints Manager for LWB exhibited the documents that comprised the investigations that it made into the two allegations. An internal investigator, Mr Bill Jardine was in charge of the investigation. He conducted face-to-face interview with following persons:
Christine Martine on 3 November 2010;
AH and MH on 31 January 2011;
CS and GP on 8 February 2011; and
AEM and AEL Battle on 28 March 2011.
All of these face-to-face interviews were recorded and transcripts of those interviews were exhibited in the hearing.
Ms Christine Martine was the Service Coordinator with Newcastle Bridge Youth and Family Drug and Alcohol Support Program for Young People aged 12 to 25 years of age.
The transcript of the interview with Ms Martine records that she had been seeing AW for a number of years for drug and alcohol issues. In those circumstances, she had a conversation with AW's mother, AH. AH is alleged to have said to Ms Martine that she had been abused by AEM and that AW had also been abused by AEM. Ms Martine states that AH advised her that two nieces had also been sexually abused by AEM. Ms Martine stated that when she spoke with AW about the alleged sexual assault, that AW "kind of mumbled and said something like he would have me on his lap and fiddle with me and stuff." Ms Martine further stated, "you don't really sort of get a full picture".
Ms Martine did not give evidence at the hearing.
AH and MH
AH and her partner MH were interviewed together in their home by Bill Jardine on 31 January 2011.
The transcript of the interview discloses the following: AH's date of birth is 6 December 1964. AH confirms that she was the person that rang the Community Helpline in about October or November 2006 at a time when her daughter, AW, who was 19, had just had a baby. AH stated that AW "told me that AEM had actually interfered with her sexually or had touched her sexually. When she was 8 or 9 umm prior to my meeting MH who's my second husband..." AH states that she rang DOCS and made the notification because she is an early childhood teacher and she runs a childcare centre and as such she is a mandatory reporter. AH stated "Now when I was about 15 or 16 AEM tried to interfere with me as well umm sexually and it was just that my uncle was in the house that he was able to stop AEM like he was drunk and ....my mum wasn't home at the time..." AH identified her uncle, T, as a person in the house at the time.
She further stated that AW and her 2 nieces J and M, used to refer to AEM as "creepy poppy".
AH told Bill Jardine that AW's date of birth was 24 September 1986, that AW is a drug addict and that she had a young child, who currently lives with the paternal grandparents. AH told Bill Jardine that orders were entered by consent in the Family Court, which included an order that the AW's child is never to be in the company of AEM. (AEM was neither aware of nor a party to the Family Law proceedings).
AH stated the following to Bill Jardine: "Well umm we were at home I was going to bed. Umm AEM was drunk and come into my bedroom. My sister was, my younger sister C was in the bedroom and AEM tried to pull the bed clothes down and tried to touch me inappropriately like on my breasts and my vagina. And of course I'm yelling and screaming. I, I was quite hysterical about the whole thing....And my uncle T came into the bedroom and grabbed hold of AEM and then he drove, T drove me down to Waratah Mayfield. My mum was at a umm meeting"
When asked at the interview by Mr Jardine, "Did he actually physically touch you?" AH replied, "He was groping at me like that was his intention".
The transcript of interview with MH discloses his date of birth as 25 July 1953. MH states that he and AH had a lot of trust issues with AW. He stated that AW would tell stories and they did not know if it was true. MH said, "It was a like a repressed memory thing she has had for 14 years." MH said, "It came to her you know much more clearly and then she said that you know poppy had interfered with her and you know touched her on the JJ and she had actually enjoyed it when, when she said that, that, that was just enough to make it true like you know, you wouldn't make that up."
MH referred to a converted shed out the back where musical instruments could be played inferring that was where he was told that the alleged assault occurred.
MH also states that when AH found out she; "just hit the roof and blew up and said that's never to happen again."
Bill Jardine interviewed C in the company of GP, her partner, at their home. C is the sister of AH. C stated in that interview that she was estranged from her mother, AEM, her sister and brother, and had been estranged from them for a number of years. Bill Jardine asked her whether she recalled an incident that involved AEM and her sister AH in the bedroom that they shared. C stated that she had no recollection of the incident. She confirmed that nothing had ever happened to her. She stated, "I don't remember anything happening at the time. I can only recite what AH has told me". She stated that when AH was 15 years of age, she began not going to school, drinking, smoking and going to nightclubs. She stated that at age of 16, AH moved out of home with her boyfriend. She confirmed that the old garage was set up as a music room with music equipment, a fridge and lounge. She confirmed that the grandchildren would go down to the old garage.
AEM and AEL
On March 2011, Bill Jardine interviewed AEM and AEL together at their home.
AEM and AEL recalled in the interview that their relationship began in about 1982. They thought that AH would have been around 16 or 17.
In response to the second allegation - that AEM molested AEL's daughter in the music shed at the back of the house in Morris Street - AEM says that at the period of time AEL's only son B and his wife, L, and their son were living in that shed. AEM stated that they were living there for just on 2 years and it had been converted into a granny flat for them. AEM says that they moved out at the end of 1995.
The interviews with the family members disclose a history of what appears to be at times a dysfunctional family, with accusations made by one family member against another indicative of mistrust and estrangement.
Bill Jardine interviewed AH's uncle T. He had no recollection of the event to which AH referred in her interview. Bill Jardine spoke with J, the niece to whom AH identified as referring to AEM as "creepy poppy". Bill Jardine reports that J states she did not refer to AEM as "creepy poppy" and further that nothing ever happened to her at the hands of AEM. Bill Jardine also spoke with the father of J. He is reported to have said to the investigator that he was aware of the allegations against AEM in 2006, that he questioned his daughters at the time and was satisfied that nothing happened to them.
A partner of AW contacted Bill Jardine. He is reported to have told Bill Jardine that AW told him that AEM used to take her down to the back shed at his house and sexually assaulted her and that the assaults occurred from when she was about 3 years old until 11 years old. He stated to Bill Jardine that AW was unstable with erratic moods.
Neither AW nor her previous partner was available to give evidence at the hearing. In October 2011, inquiries were made by AH of AW, which revealed that AW was significantly troubled by mental health and drug addiction problems. AH did not know the whereabouts of AW.
AH stated that she has resumed telephone communication with AW in April 2012 but she did not know where she was living and that she was still significantly troubled by mental health and drug addiction problems.
Two (2) days prior to the hearing, no information had been received that AW was willing or able to give evidence or to otherwise assist in the proceedings.
The Respondent exhibited the Carer Review Record for AEM and AEL. This record related to a review undertaken on both AEM and AEL in March 2009. At that stage, neither carer was the subject of any ongoing reportable allegation as defined in s 27A of the Ombudsman Act. The Core Competency Review noted that AEM and AEL provided respite care to two children that are placed in full-time care with their daughter, ACZ. The availability of AEM and AEL as respite carers, it was noted, allowed the children to maintain contact with their friends and familiar home when on respite. It stated that AEM and AEL provide a stable and caring home, ensuring that each child receives individual attention, offering the children a variety of child-focused activities and experiences like going swimming and to the park, and playing with their peers. It stated that AEM and AEL manage their other grandchildren's needs with a healthy balance so that everyone feels loved, safe and secure. The carer review further stated that AEL and AEM openly demonstrate physical affection between all family members including the children appropriately. AEL encourages the young people to develop life skills and take pride in their achievements while allowing for the different age and stages of development. AEL and AEM like to provide consistency with the children, are considerate of the young people's needs and like to give opportunities for them to grow emotionally and socially. The children are considered equal members of the family and are included in decision-making processes that will affect them.
The recommendation was that the carers be approved as LWB carers for the following 12 months. This document was signed by both AEM and AEL on 27 March 2009.
A further review was undertaken of AEL and AEM in December 2010. In this review there was no ongoing abuse in care investigation noted with respect to either of the applicants. The comments in this review from 2010 are not inconsistent with those comments in 2009. Both reviews speak positively of the carers and as a result, the authorisation was to continue for a period of 12 months. Both AEL and AEM acknowledged receipt of the document on 22 September 2010.
There was no dispute between the parties that the foster children have a close attachment to both AEL and AEM. A clinical psychologist engaged with the foster children since 2004 opined stated: "ACZ is an excellent carer and her foster children have made a very strong attachment to her. I believe they have also made a strong attachment to AEL and AEM".
AEM and AEL relied upon affidavit evidence. AEM relied upon affidavit evidence of ACZ, and other members of the family.
ORAL EVIDENCE
Bill Jardine was available for cross-examination. He was an impressive witness. He was candid and direct in his evidence. He agreed that when determining risks for the children, he had to take into account both children remaining in the care of AEM and AEL and also the risk of harm should the children be removed. He confirmed that the removal of children per se can be an abusive process but often represents the lesser of two evils. He agreed that removal of the children could interrupt an existing attachment and he stated that in his experience the attachment of the children to ACZ would be a strong attachment after 10 years.
AEM was cross-examined. AEM identified the history of his relationship with AEL, his alcohol consumption during the 1980s and the living arrangements with AEL in the 1980s. AEM made appropriate concessions about his intoxication at that age. It was put to him that when he was at the Morris Street address he was intoxicated and went into AH's room when she was asleep - he denied this; he denied pulling the sheets down; he denied touching AH; he denied attempting to touch AH; he denied T grabbing him and pulling him out of the bedroom. AEM stated that in 1987 he gave music away for about 18 years and that he took it back up in about 2005. During that period of time, he would play at family parties and occasionally at a festival. He conceded that there were times when he was playing music that the children would be around including AW. He agreed that there would have been times when he was playing music in the garage when AW was 8 or 9 years of age. He agreed that there would have been times when it was just he and she and no one else in the garage. He denied that he ever had AW sitting on his lap and he denied that he ever touched her in the way outlined.
AEL gave evidence. She confirmed that when she met AEM he would consume alcohol. She stated that he was not a heavy drinker, although at times he was intoxicated at parties. She recalls that it would have been around July or August 1982 when he moved into the home where she lived at the time with the three children remaining at home. She denied any occasion when her brother T brought AH down to the RSL Club when she was down there. She was adamant that there was never an occasion where she would go to the club not accompanied by AEM.
AH was available for cross-examination. She confirmed that she had concerns about AW telling stories. She agreed that her daughter was in crisis and was not reliable. In cross-examination, the allegation against AEM was that at time when AH was over 17, but not yet 18, AEM was drunk and entered her bedroom and attempted to reach towards her and that she was scared.
MH was available for cross-examination. He agreed that he was initially sceptical about things that were said by AW. He stated that there came a point when he believed her, and that point was when she said that she had actually enjoyed AEM's touching of her. He agreed it was nothing else that made him believe it, but he said the way it was conveyed to him, he felt that someone would not say that if it did not happen.
Greg Bennett was available for cross-examination. He was the State Investigation and Complaints Manager for NSW and ACTT for LWB. He confirmed that the children were not interviewed for the 2011 investigation, as he did not think it was necessary.
Ms Marriott was also available to give evidence. She is the Senior Advisor on Legal and Risk at LWB of King Street, Newcastle. By her evidence, she confirmed the policy and procedures available at LWB for assessing respite carers. She also confirmed that both AEL and AEM were considered primary carers for the purpose of their organisation. She confirmed that, whilst AEL and AEM were only respite carers, if the children are to be left unattended in the care of persons other than the authorised foster carers then those persons needed to be authorised. An authorised carer approval form was produced by LWB. They could not produce a cover letter to confirm that it was forwarded to AEL and AEM, but it was confirmed by Ms Marriott that that was their practice. Ms Marriott confirmed that the first recorded date of AEM being an authorised carer was in 2009. It seems that there were gaps in LWB's records prior to 2006. LWB exhibited in the proceedings documents from 2009 and 2010 evidencing AEM acknowledging a review of the annual review for each year. On 22 September 2010 AEM signed a declaration regarding child related employment.
THE ALLEGATIONS
Allegation 1 - Sexual Assault of AH
The LWB investigation focused on the allegation that the applicant had 'sexually assaulted' AH and AW. The allegation with respect to AH first appears in the COPS entry contained in November 2010 correspondence from the New South Wales Police Service Newcastle Local Area Command. The allegation contained in that correspondence providing the excerpt from the COPS system was "had attempted to molest". How this first allegation had been elevated from an attempted action to an actual sexual assault is not clear.
The allegation made by AH was that in 1980 AEM was drunk, that he came into AH's bedroom and that he attempted to touch her, to 'interfere with her sexually'. AH stated that her uncle, T, was in the house at the time of the assault and was alerted to the incident. T denies this. AH stated that her sister, C, was a witness to the assault. C stated she has no recollection of the incident. AH stated that her mother, AEL, was told about the assault on the night that it occurred. AEL denied this.
AEM denied the allegation. AEM asserted that he and AEL did not get together as a couple until 1982 when AH would have been around 17 or 18 years of age. The allegations made by AH relate to her being around 15 years of age. AEM and AEL both contend there was motive for a false complaint to be made by AH against AEM. There is an assertion from AEL and AEM that AH had a troubled adolescence that she behaved inappropriately with young men that she left the family home at the age of 16 because her mother refused to allow her to live at the home with her boyfriend staying in her room.
An analysis of the evidence with regard to the allegation made by AH reveals a discrepancy of timing of the allegation, an inconsistency in the version of events and the lack of specificity with respect to the event itself. AH relies upon 3 witnesses to the event. None of those witnesses support the version of events and surrounding circumstances contended by AH. AEM denies the allegation.
In the circumstances of this case, we find that the allegation made by AH concerning AEM has not been made out to the civil standard. There is insufficient evidence before this tribunal to make a positive finding, on the balance of probabilities that the alleged incident occurred.
Allegation 2 - Sexual Assault of AW
The evidence before this Tribunal with respect to the allegation that AEM sexually assaulted AW comes from statements allegedly made by AH to Christine Martine. Ms Martine is reported to have told Mr Jardine in an interview that AW told her something. Ms Martine was not cross-examined.
Further, AH alleges that AW told her that she was sexually assaulted by AEM when AW was between 8 and 9 years of age. AW's former partner is reported to have told Mr Jardine that he was told by AW that she was assaulted by AEM between the ages of 3 and 4 years. AH states that AW told her that the assaults occurred between the ages of 8 and 9 years. AW's stepfather, M, states that AW told him that she was sexually assaulted by AEM.
AEM denies the allegations. The evidence available suggests that AW has had a very difficult life. She is reported to be drug dependent, of no fixed abode and identified as having mental health issues. She was unavailable to give any direct evidence to this Tribunal. There is no evidence of any complaint to the Police with respect to AEM. The evidence shows that AW's partner described her as being unstable with erratic moods. AH states that AW told her that her cousins called AEM, "creepy poppy". J deposed in an affidavit that reported that she and her sister did not call AEM, "creepy poppy" and that AEM did nothing inappropriate to her.
The affidavit evidence of the son of AEL supports the applicant's contention that in 1994 and 1995, the back shed where the alleged incidents regarding AW were said to have occurred, was inhabited at the relevant time by AEL's son and his wife.
In considering all of the available evidence, it is not possible to make a positive finding with a sufficient degree of certainty that the allegations made against AEM with respect to AW occurred. The circumstances of the making of the allegation and the manner in which the allegation is made means that they are not reliable. The allegation has not been tested. AW could not be questioned about the allegations. The allegations themselves are inconsistent and imprecise. The allegations lack sufficient detail to be able to determine what, if anything occurred. The allegations relate to a period of time either when AW was 8 or 9 or 3 or 4, some 18 - 23 years ago. In the circumstances, we find that the allegation made by AW concerning AEM has not been made out to the civil standard. There is insufficient evidence before this tribunal to make a positive finding, on the balance of probabilities that the alleged incident occurred.
UNACCEPTABLE RISK
The respondent did not ask the Tribunal to make a positive finding that the allegations concerning AEM be proven. The respondent acknowledged that the evidence before the Tribunal would not support such a finding.
The wider issue for determination in these proceedings is whether or not, given the fact and nature of the allegations, there is an unacceptable risk to children or young people that they would be exposed to abuse should AEM remain as an authorised carer. The LWB determined that the risk was unacceptable. We have to determine if, on the evidence now available, LWB made the correct and preferable determination.
The assessment of that risk involves an evaluation of the nature and degree of risk and whether, with or without safeguards, it is acceptable (Warsow v Warsow [2010] FamCA 591 as referred to in Fairfield City Councilv WI [2012] NSWADTAP 39 at [50]). The assessment of that risk requires an objective consideration of all of the circumstances of the case in the context of the relevant legislative framework.
The respondent in its submissions noted strong family allegiances involved in these proceeding and observed that the fact-finding exercise would be incredibly difficult. We concur with that observation. There is no dispute between the parties that the children have a close attachment to AEM and AEL and further, that whilst the children have been in the care of ACZ, there has been no concerns raised with respect to the children's health and welfare in circumstances where AEL and AEM have been available as respite carers. This is a long-standing placement, and ACZ, to her considerable credit, gave evidence to the effect that should the decision to de-authorise AEM and AEL be upheld, she would take action to ensure that the children remained with her.
An allegation has been made by AH with respect to behaviour by AEM towards her. As noted above, there are inconsistencies with respect to that allegation, there are inaccuracies as to the timing of the alleged event, those persons nominated by AH to corroborate her version of the event and the circumstances surrounding the event are unable to corroborate her version. The event is alleged to have occurred in 1980, 32 years ago. There was no report to the police. The incident, taken at its highest, does not disclose 'sexual abuse'. The incident is denied and there is some evidence, which may support a motive for false complaint.
A further allegation has been made, again by AH, with respect to behaviour by AEM towards AW. Similarly, the circumstance of the making of the allegation and the manner in which the allegation is made means that it is unreliable. The allegations themselves are inconsistent and imprecise. The allegations lack sufficient detail to be able to determine what, if anything occurred. The allegations relate to a period of time either when AW was 8 or 9 or 3 or 4, some 18 - 23 years ago. The person who is said to be the victim of the alleged sexual assault is described by members of her family as unreliable because she "told stories", has a history of drug abuse and mental instability. The person who is said to be the victim of the alleged sexual assault was not available to give evidence in these proceedings.
In the circumstances of such an allegation it is difficult to determine with any precision what, if any, concerns such an allegation raises in terms of risk to children and young people of the alleged perpetrator.
After an objective consideration of all of the circumstances of the case in the context of the relevant legislative framework we determine that the LWB have not made the correct and preferable decision to cancel the authorisation of AEM and AEL as authorised carers.
WAS AEM AN AUTHORISED CARER?
There was an issue in the proceedings as to whether AEM was actually ever authorised as a foster carer. As noted earlier in these reason, we find that he was.
Despite the paucity of evidence from LWB prior to 2009 with respect to this issue, the evidence with respect to the acceptance and action by AEM of his position as a foster carer in 2009 and 2010 was not insignificant. Importantly, the evidence of LWB was that if the children were to be left unattended in the care of persons other than the authorised foster carers then those persons needed to be authorised. We determine that on balance, AEM was an authorised carer.
ORDER
That the decision made by Life Without Barriers to cancel the authorisation of AEM and AEL be set aside. The parties have leave, should they consider it necessary, to re-list the matter with respect to the proceedings concerning ACZ.
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Decision last updated: 21 November 2012
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