AKM v Ngunya Jarjum Child and Family Network Inc
[2013] NSWADT 89
•26 April 2013
Administrative Decisions Tribunal
New South Wales
- Amendment notes
Medium Neutral Citation: AKM v Ngunya Jarjum Child and Family Network Inc [2013] NSWADT 89 Hearing dates: 19 October 2012 Decision date: 26 April 2013 Jurisdiction: Community Services Division Before: L Goodchild , Judicial Member
P Foreman, Non-Judicial Member
J Green, Non-Judicial MemberDecision: That the decision made by NGUNYA JARJUM ABORIGINAL CHILD AND FAMILY NETWORK INC to cancel the authorisation of AKM is set aside.
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 Category: Principal judgment Parties: AKM (Applicant)
Ngunya Jarjum Child and Family Network Inc (Respondent)Representation: L Dillon-Smith (Applicant)
C Smith (Respondent)
F Ainsworth (Guardian ad-Litem)
File Number(s): 124024 Publication restriction: S126 of the Administrative Decisions Tribunal Act applies
reasons for decision
INTRODUCTION
In these reasons for decision, the applicant is referred to by the pseudonym AKM (see Section 126 of the Administrative Decisions Tribunal Act 1997). The children, the subject of the decision, have also not been identified. The children, two brothers aged 12 and 10 at the date of hearing, are referred to as Child A and Child B.
The applicant, an authorised carer, under the Children and Young Persons (Care and Protection) Act 1998 (the Care Act), initially sought a review of two decisions by the Ngunya Jarjum Aboriginal Child and Family Network Inc. The first was the removal of Child A and Child B from her care and the second was the decision to de-authorize her as a carer.
When these proceedings went to hearing on 19 October 2012, the applicant withdrew her application to review the decision regarding the removal of the children. She pursued her application for a review of the decision de-authorising her as a foster carer.
The applicant was authorised as a foster carer around November 2010. The respondent placed Child A and Child B in the care of the applicant on 3 December 2010.
The respondent removed the children from the care of the applicant on 22 June 2012. The applicant was notified of this decision by telephone and then by email dated 25 June 2012.
The reasons given in that email by the respondent for the removal of the children were:
a) The applicant had changed the children's tutoring times from 2 hours over two days a week to two hours on one day a week.
b) The applicant had moved her son L into the house with her and the children without notifying the respondent and L was considered a risk to the children because of his drug history.
c) The applicant had failed to take the children to a doctor's appointment.
The applicant made an application for internal review on 22 June 2012.
On 13 August 2012, the applicant was notified by email that the children had made allegations of abuse whilst in her care. Those allegations were contained in a record of a conversation between the children and caseworker, Lillian Khan.
With regard to the 2 incidents of abuse of the children whilst in the applicant's care, the first involved the child B being sworn at in 2010 and grabbed by the neck by the applicant's ex-husband.
The second allegation of abuse involves the applicant in 2011 choking Child A. It is also alleged that the applicant's daughter swore and verbally abused and slapped Child A across the face.
ROLE OF THE TRIBUNAL
The decision to remove children from the daily care and control of a foster carer and the decision to de-authorise a foster carer are reviewable by this Tribunal. S245(1)(a) and (c) Care Act 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)).
STATUTORY PROVISIONS
The decision the subject of these proceedings is a decision taken under the Care Act and regulations.
The objects of the Care 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;
(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 Care Act are contained at section 9. We will not set out that section other than to subsection (1) 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.
Sections 11, 12, 13 and 14 of the Care Act provide for participation in decision-making and placement principles for Aboriginal children and young people. Chapter 8 of the Care 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 Care 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-Home 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 Care 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 Care 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.
ISSUE AND CONCLUSION
The issue that arose in this proceeding can be identified as:
a) Having regard to all of the relevant material, is the decision made by the respondent to de-authorise the applicant as an authorised carer the correct and preferable decision?
We find it was not and the decision should be set aside.
THE EVIDENCE
The applicant relied upon affidavit evidence from herself, her son and daughter. She and her son were cross-examined.
The respondent relied upon affidavit evidence from Lenore Marlowe (General Manager), Kylie Toomey (Foster Care Support Case Worker), Lillian Khan (Case Worker) and Jeannine Sines (Manager Case Worker). Lenore Marlowe, Lillian Khan and KylieToomey were cross-examined.
The applicant says that in 2010 the General Manager of the respondent told her that the two eldest boys of a family needed a good home; that they were quiet and would suit her care. The boys were placed with her on 3 December 2010. The boy's two younger brothers were placed with the applicant's daughter who lived across the road. The boys had behavioural and intellectual issues. The applicant says she was told that there would be funding for the boys to attend the local catholic school. The respondent denies that funding would be available for the boys to attend the local catholic school, but that financial assistance would be provided for uniforms and excursions. The applicant says that when the children came into her care, they could not shower or use a knife and fork properly. The applicant says that she requested the respondent find counselling for the boys. She says this took 18 months.
The applicant made a complaint to the respondent about the lack of support as she could not contact caseworkers or get assistance from them when she had questions. She complained that the staff were rude to her and would not return her calls. The respondent denies this.
The applicant made a complaint to the Ombudsman. A meeting was organised by FACs in May or June 2011 to try to resolve issues. The applicant says that at this meeting, it was agreed that because of the boys' disabilities she would receive a higher level of support via Care plan 1. The applicant says that there was no such agreement. The respondent relies upon correspondence to the applicant dated 2 November 2011 where the reasons for denying the higher foster carer allowance were explained to the applicant.
The applicant says that the respondent was to organise a tutor for the boys and a speech therapist. The applicant says that this was not organised until 2012.
With regard to the specific allegations, while the boys were in the care of the applicant, the applicant says that her son L was living down the road and had a lot to do with the boys and they became attached to him and him to them. The applicant says that around March 2011, the respondent asked L if he would do some mentoring. L went for an interview with the respondent. The applicant says that 2 boys were placed with L almost immediately. In April 2011, L completed the 2-day foster carer's course with the respondent. The children were in the care of L for a period of 3-4 months. When L's relationship broke down, he moved to Casino and the children were removed from his care.
The respondent says that L was never authorised as either a carer or mentor and that the children were placed with him only on a temporary basis. The respondent relied upon a "Child Placement Form" which indicated that the placement was short term from 23/3/2011. No length of placement or exit date was noted on this form. Ms. Sines, Casework Supervisor for the respondent, confirmed in her affidavit that L had approached the respondent to 'run a mentor program for young kids'. She further confirms that a police check was undertaken in respect of L.
In November 2011, the applicant attended a meeting with the respondent. The applicant says that the meeting was in regard to her moving with the children into Lismore and her asking for assistance for the move. The applicant says that concerns were raised at that meeting regarding L and drug use. The applicant says she discussed her concerns with the General Manager of L possibly using drugs previously, but says she told the General Manager that she did not believe he was using drugs anymore.
After this meeting, the applicant says that no one from the respondent raised with her any concerns regarding L until she received an email from the respondent on 25 June 2012 after the children were removed from her care. She denied a telephone conversation with the General Manager of the respondent in September 2011, where L's purported drug issue and mental health issues were discussed and where the respondent alleged the applicant was told that L could not reside with her.
The applicant denied the respondent told her that L could not reside with her and the boys. The applicant says that on one occasion a staff member from the respondent attended the home and was told of L moving in. The applicant says that the respondent was aware of L's plans to study at TAFE Drug and Alcohol Counselling. The respondent says that they made it clear to the applicant that if there was to be a change in the household that they were to be immediately notified. The respondent says that they informed the applicant that L was not to reside in the home with her and the children.
On 5 March 2012, Ms. Toomey, Ms. Sines and the caseworker Ms. Saunders all attended the home of the applicant for a routine visit. L was there. The officers of the respondent gave evidence of a conversation with the applicant and L to the effect; "L and I are working things out for the children's sake".
On 15 March 2012, a case conference was held with the respondent in Lismore. The applicant says that L was requested to attend. The applicant says that at the case conference, it was openly discussed that L was residing with the applicant. The applicant relied upon the care plan produced from the case conference where it is noted in that document L was carer for the boys. The respondent denies this document reflects anything other than who was in attendance.
With regard to the applicant advising the respondent of L residing with her, she relies upon an email she sent to the respondent on 10 April 2012 ,where she states that L is living with her and 'as Janine knows he is helping her with (the children)'. The respondent filed an affidavit from Ms. Toomey acknowledging that she did not read this email.
With regard to the 'ongoing issues' raised by the respondent, the applicant denied that the boys missed their Kumon. The applicant says they did not attend when on school holidays and on one occasion when the children were sick.
The respondent said that arrangements had been made for the children to attend Kumon for 2 hours once a week. By letter dated 22 March 2012 from the respondent to the applicant, the applicant is advised by the respondent of the details for the Kumon tutoring. That correspondence states: "Kumon do tutoring Tuesdays and Thursdays in Lismore and are open from 3.30pm - 6.00pm. Ngunya Jarjum are paying for the costs of two (2) hours per week which means both (the children) are able to attend the tutoring for an hour each day or however it fits in with your schedule to make up the two (2) hours". The applicant annexed this correspondence to her affidavit.
The applicant explained the changing of the tutoring afternoons. It appears there was a clash with counselling on a Wednesday, which had to be moved to Tuesday because of a clash with football training.
The applicant says she attended the Foster Carers Conference in May 2012 and no concerns were raised with her regarding the care of the children.
With regard to the missing of a medical appointment, the applicant says that she was never notified of the appointment with the paediatrician. She says she has taken the boys to all of the appointments.
The applicant responded to the allegations of physical abuse. With respect to the first allegation, the applicant recalled the day in question. She stated:
9. I remember that day it was in September 2011. The kids had been outside playing. They started fighting. My punishment with the kids was to send them inside if they were naughty or fighting. I told the younger boy to go inside. He went into his room and I followed and saw he was packing his bag. He said he was leaving. He went straight out the door and ran down the road. The applicant says her husband "H" got onto the four-wheeler and went after him. She states that as H got near him he started making these terrible screams even though H was not touching him. The screams were terrible and I had not heard him go off like this before.
10. H walked over and picked him up and put him on the front of the bike. He rode back to the house. The younger boy was sobbing but not screaming anymore.
11. The younger boy went into the house and into his room. I went into the kitchen with M. H came in and sat down in the kitchen at the table. At no time did I see H go into the bedroom with the younger boy. Later that day H was talking to him to find out why he got so upset.
The younger boy would say words to the effect of I've got these voices in my head telling me to do bad things and I don't want to do these things.
12. I was so concerned about this I contacted a caseworker at Ngunya Jarjum the next day, which was 15th September 2011. I made a note of this in my diary. I was told they would get onto it to get some respite. I had constantly asked for counselling for the boys and nothing was done.
With respect to the second allegation, the applicant's response was as follows:
18. The second incident mentioned in the report served on my solicitors was one I also remember as I keep a diary. It was when I moved to Lismore with the boys and was living in the house with my daughter T and her husband. The older boy came home from school. He was really angry and upset and went towards his room and was punching the walls and kicking things. I went and held him to calm him down as I usually did. He did (sic) was yelling at me and was calling me a fucking bitch and was telling me to fuck off. That was the way he used to talk when he was wild.
19. T came into the room and did say don't you fucking talk like that to my mother. She told him that he was being disrespectful. At no time did T or anyone else slap the older boy. He had come home from school with his mouth bleeding. When he was upset he would chew on the inside of his mouth till it bled.
In evidence in chief, the applicant was asked if that she had at any time choked or hit or assaulted the boys. The applicant said; "No".
The applicant was not challenged in cross-examination as to her denial or explanation of the allegations nor was it suggested to her that the abuse as alleged actually occurred.
The applicant was asked by her counsel if she had kept the children in their rooms for long periods of time. She said; 'No'.
Cross examination of the applicant by Counsel for the respondent focused initially on issues related to the boys' attendance at equine therapy, tutoring, and a medical appointment. The applicant had difficulty understanding some of the questions, but appeared to make a good attempt to answer them honestly, and attempted to provide as much information as possible. Nothing emerged from the questioning that greatly changed the material in the affidavits related to these matters i.e. that the boys attended the allocated equine therapy sessions, they attended tutoring for one two-hour session weekly, and had missed a paediatric appointment. There were minor inconsistencies around the number of tutoring sessions attended and exactly how many of the counselling sessions, equine therapy and medical appointments the applicant took the boys to. In the context of the proceedings, nothing turns on these inconsistencies.
The applicant was questioned regarding the allegation that she had failed to inform the respondent that L was moving into her house. The view of the tribunal is that the evidence showed that the respondent was aware of, or had been informed that, L was living with his mother in April 2012. The applicant's assumption that the respondent was informed and unconcerned about L living with the applicant and the children was reasonable.
Questioning about AKM's knowledge of L's drug problem did not substantially challenge any material on this matter that was contained in the applicant's affidavit.
L provided an affidavit and was cross-examined. He filed and served his criminal history as an annexure to his affidavit material. He said that he had a lot to do with the boys and that they were very close. He said that in April 2011, he received a call from the respondent requesting he mentor a 13-year-old boy. The boy was placed with him the next day and stayed for 4 months. He says that after becoming a mentor the respondent requested that he take full care of J instead of just being a mentor. He says he told them about his criminal record and was told;"...it will be OK".
Then an 11 year old was also placed in L's care. L denied being involved in a drug bust and stated that he was not there and that it had no connection with him. L admits being taken by ambulance to the hospital due to anxiety after the break up of an 11-year relationship of himself and his partner. He stated he had never been scheduled or taken to a psychiatric hospital. He says he was prescribed anti-depressants by Community Mental Health and took the drugs for 2 months. L claimed that he was told by the caseworkers for the respondent that moving in with his mother and the boys would be positive as he could mentor them. L says he was asked to be a carer and mentor for the boys and this is mentioned on the care plan.
L was a credible witness. He had no trouble understanding the questions put to him and gave answers that were forthright and honest. He was open about his criminal history and drug use. There was cross-examination as to the reasons for his hospital admissions. He was clear that it was anxiety.
He gave oral evidence that he had been authorised as a carer by the respondents, but did not have documentary evidence to support this. His understanding that he was authorised is reasonable in the circumstances.
Affidavit evidence from the applicant's daughter, T was relied upon in these proceedings. She gave evidence of her observations of her mother and her mothers care of the boys. She deposed to not being smacked by her mother as a child. She deposed to an incident when one of the children came home from school upset and swore at her mother. She says she then swore at the child and told him not to speak to her mother in such a way. She said her husband then spoke to the child in his room for a while. The child then came out to her mother and apologised and gave the applicant a kiss and cuddle.
She deposed to obtaining approval to be a foster carer and having children placed with her, only to request that the children be removed sometime later. The applicant's daughter was critical of the respondent regarding the purported lack of support that the respondent had provided to her and her husband.
The applicant's daughter alleges that the respondents have released information about her to another out of home care organisation and that information was incorrect.
Affidavit evidence from the applicant's daughter M was relied upon in these proceedings. She had the care of the 2 younger boys, the siblings of the 2 boys in the care of the applicant. At the time of hearing M had been caring for these 2 boys for about 2 years. She gave evidence of her observations of her mother and her mother's care of the boys. She deposed to not being smacked by her mother as a child. She deposed to be unaware of her mother smacking her grandchildren. She deposed to her observations of the boys that were in her mother's care and some challenging behaviour. She recalled the incident when her father brought back the younger boy on the four-wheeler. She stated that she did not see her mother or father physically discipline or grab the younger child. She deposed to her further involvement with the respondent in regard to the children in her care and her care of those children.
Lenore Marlowe, the General Manager for the respondent was cross-examined. She was, in our view, an unsatisfactory witness. She appeared to have only a vague idea of the processes and internal policy of her organisation and on several occasions used the reason; "I'm the Manager. The caseworkers deal with that" to excuse her lack of knowledge or supervision of what was happening in her organisation. Her evidence was on some occasions unclear and disjointed.
Ms. Marlowe's claim that the Case Plans dated 15th March 2012 for the children were of no consequence because they were not signed was unconvincing. They are on the respondent's letterhead and were sent to the applicant. The applicant was entitled to form the view that the respondent was aware of and approved L's involvement with the children, even as a "carer". There was no evidence that a corrected and signed version of these documents was ever produced.
Ms. Marlowe's answers to questions about the processes that led to the decision to change the children's placement were vague but nevertheless made it clear that respondent's written policies and procedures were not followed. For example, there was no meeting held to try to avoid the change of placement.
The explanation of the process leading to the decision to de-authorise the applicant was also vague and confusing. Ms. Marlowe emphasised the seriousness of the decision to 'change a placement' for any child. Her explanations for reaching the decision to change the children's placement remained unclear. She referred to the 'process' but was unable to clearly articulate the steps in that process. She fell back on the primary goal of the 'best interests of the child' as the overriding determinant. Given the seriousness of this decision, her evidence suggests either a lack of accuracy or some managerial incompetence.
Ms. Marlowe conceded that it would have been better to wait for the tribunal proceedings to finish before making a decision on de-authorisation. In answer to a question from the GAL, Ms. Marlowe agreed that de-authorising AKM was designed to prevent the return of the children.
Caseworker for the respondent Lillian Khan was cross-examined. Ms. Khan's evidence was vague and unhelpful. She spoke in the most general of terms and was unable to give specific examples of how the applicant had failed to provide for the children's educational needs other than the issue of one or two tutoring sessions per week. She conceded that she had failed to make notes about home visits, and her evidence revealed a very poor standard of record keeping by the respondent.
Ms. Khan was unable to clearly explain how her evidence on problems with the applicant's care of the boys was consistent with a letter from Ms. Marlowe dated 9th May 2012 (just over one month before the children were removed), attached to Ms. Khan's affidavit, which stated inter alia: "Ngunya Jarjum acknowledges the children have a safe and good placement with you and that you are a good carer."
In answer to a question, Ms. Khan conceded that she was not familiar with her organisation's policies.
Ms Kahn's stated that her concerns about the care that the boys were receiving were largely based on her observations of their inactivity when she visited the applicant's home. She acknowledged that she was unaware of the boys swimming and fishing activities. Her communication with the applicant appeared to be inconsistent and sloppy at times. In one instance she related sending a message about an 'important' appointment for the boys to the applicant through her daughter.
Ms Kahn stated that the reason that L was not acceptable to the respondent as the applicant's support person at the respondent's meeting was because 'he had too much to say'.
Foster care Support Case worker, Ms. Kylie Toomey, gave evidence that she undertook a yearly assessment of children in placement and that, at the end of 2011, the placement with the applicant was going well. No copies of Ms. Toomey's placement reports were provided.
Ms. Toomey's evidence on the issue of the "junked email" was vague and evasive. At one stage she appeared to say that she had opened the email before trashing it but when it was pointed out that this was not consistent with her affidavit, she reconsidered her answer. She did not appear to be familiar with her affidavit.
One of two conclusions can be reached from Ms. Toomey's evidence. Either, Ms. Toomey purposely sent a carer's email to the trash folder because she assumed that she knew what was in it. This would be in contravention of all good office practice, and in this case had serious consequences. In their outline of submissions (R9) the respondent's solicitors cite the applicant's failure to notify them that L was living with her as one of the reasons for the change of placement and for AKM's de-authorisation. Or, that Ms. Toomey opened the email in April but it became more convenient for the organisation to ignore the presence of the email as it interfered with the narrative that they did not know about L's presence in the applicant's household. However, the email could no longer be ignored when the applicant's solicitors produced it on October 9th 2012, and the "junked email" story was concocted to cover this.
In any event, it was reasonable for the applicant to have assumed that the respondent was informed of and unconcerned with L residing in the home.
CONCLUSIONS AND ORDERS
As identified earlier in these reasons, in the circumstances of this case, we consider it reasonable for the applicant to have assumed that the respondent was aware of and approved L residing with the applicant in her home with the children. Those circumstances are these:
a) that the applicant had resided with her prior to her moving house;
b) that L had completed a 2 day foster-carers course;
c) that L had 2 children placed in his care;
d) that L was at the home when the respondent attended on 2 occasions in March 2012;
e) that Care Plans were produced as a result of the March 2012 meeting that identified L as the 'carer';
f) that the applicant had sent an email to the respondent in April 2012 referring to L as residing with her and caring for the children.
The respondent is critical of the applicant for rescheduling the Kumon appointments. The respondent, by its correspondence to the applicant authorised her to make arrangements for Kumon that suited her schedule. The applicant explained the changing of the arrangements and the preference for counselling and football training.
The Respondent is critical of the applicant for failing to attend the medical appointment. The applicant explains why she did not attend the scheduled medical appointment. The respondent refers generally to the applicant's failure to attend to the children's appointment. This allegation was not particularised other than the one appointment.
We are of the view that none of the circumstances referred to above are of sufficient seriousness to disrupt the placement of a child, nor specifically for this application, to justify the de-authorisation of a foster carer.
We have had regard to the allegations made by the children of the alleged physical abuse of them by the applicant and by members of her family.
In determining whether or not, in light of these allegations, the decision by the respondent to de-authorise the applicant as a foster carer was the correct and preferable decision, consideration has to be given to the nature of the allegations; the circumstances in which the allegations were made; the nature and content of any response from the applicant to the allegations and the nature and content of any investigation by the respondent.
Child B is reported to have told his carer in July 2012 of an incident involving the ex-partner of the applicant grabbing him by the neck and an incident in 2010 involving Child A being held against the wall and choked by the applicant. These allegations are contained in a progress report annexed to one of the respondent's affidavits. This progress report appears to be a summary of a conversation between the caseworker and the children. There is no transcript of a record of interview with the children. Little detail is provided of the circumstances of the allegations. No question or answer summary is provided regarding day, time, or the children's understanding of truth. The interview with Child B is undertaken in the context of him not wishing to leave his current placement and not having liked living with the applicant. The boys had been residing together in this current placement since their removal from the applicant. Other than what is provided in this progress report, there does not appear to be any investigation into the allegations in accordance with the policies and procedures of the respondent.
In an assessment report dated 4 October 2012, the allegation (of sorts) made by Child B was repeated. The allegation made by Child A was repeated in the context of that boy thinking that the purpose of the assessment was 'about being taken away from his current carer' and going back to the previous carer.
Allegations such as these are serious and have to be scrutinised closely and investigated appropriately by any foster care agency. Children who are placed in out-of-home care are the most vulnerable children in our society and deserve the highest standard in support and care to ensure they are provided a safe environment free of any form of verbal or physical abuse.
The applicant responded in detail to the allegations made by the boys. She records the event and denies the allegations of physical abuse. She was not subject to any cross-examination as to her denial. We have had regard to the applicant's evidence and to the evidence of her witnesses. We have had regard to the many positive testimonials that the applicant has provided.
On balance, we consider that the nature of the allegations and the circumstances of the allegations in the context of the response of the applicant do not provide sufficient cause to de-authorise the applicant as a foster carer. Our reason for this are implicit in our consideration of the allegations i.e. the nature and circumstances of the allegations; the timing of the allegations; the possibility for either concoction or exaggeration by the boys; the failure by the respondent to investigate the allegations; the nature and content of the response made to the allegations by the applicant.
In conclusion, having regard to all of the evidence and submissions with regard all of the allegations made against the applicant, we find that the respondent's decision to de-authorise the applicant is not the correct and preferable one.
ACCORDINGLY, WE ORDER:
That the decision made by NGUNYA JARJUM ABORIGINAL CHILD AND FAMILY NETWORK INC to cancel the authorisation of AKM is set aside and we recommend that these reasons be referred to the Board and/or management committee of the respondent.
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Amendments
22 May 2013 - Anonymisation
Amended paragraphs: 41, 48, 61, 69
Decision last updated: 22 May 2013
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