AOP v Ngunya Jarjum Child and Family Network Inc

[2013] NSWADT 263

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	AOP v Ngunya Jarjum Child and Family Network Inc. [2013] NSWADT 263
Hearing dates:	22 April 2013
Decision date:	21 November 2013
Jurisdiction:	Community Services Division
Before:	L Goodchild , Judicial Member J Le Breton, Non-Judicial Member J Green, Non-Judicial Member
Decision:	That the decision made by NGUNYA JARJUM ABORIGINAL CHILD AND FAMILY NETWORK INC to remove the children from the care of the foster carers is affirmed.
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 1997
Cases Cited:	YG & GG v Minister for Community Services [2002] NSWCA 246
Category:	Principal judgment
Parties:	AOP (Applicant) Ngunya Jarjum Child and Family Network Inc. (Respondent)
Representation:	Legal Aid of NSW (Applicant) Maxwell & Co Solicitors (Respondent) Francesca Seychell (Guardian ad-Litem)
File Number(s):	134002
Publication restriction:	s.126 of the Administrative Decisions Tribunal Act applies

REASONS FOR DECISION

INTRODUCTION

1. In these reasons for decision, the applicant is referred to by the pseudonym AOP (see s.126 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act")). The children the subject of these proceedings have not been identified and will be referred to as Child A and Child B. At the date of the hearing the children were 6 and 3 years of age.

1. The applicant, an authorised carer, under the Children and Young Persons (Care and Protection) Act 1998 (CYPCPA), seeks a review of the decision by the Ngunya Jarjum Aboriginal Child and Family Network Inc. to remove the children from her care.

1. At the time of the removal, A and B had been in the care of the applicant for a period of approximately two years.

1. The applicant's mother had in the past been the foster carer for A and B's two elder brothers C and D.

1. The evidence available discloses that in November 2012, C, (the brother of A and B, aged 11 years) told his foster carer that the applicant's two male children had sexually abused him. C had previously been placed in the foster care of the applicant's mother. At the time that he made this disclosure, he was no longer in the care of the applicant's mother but had been placed elsewhere. C stated to his current foster carer that when he had been in the care of his previous foster carer his brother D had sexually assaulted him, and that the applicant's two boys had sexually assaulted him and his brother. He claimed to have been 'raped' at the applicant's property. He made an allegation of another occasion when he went 'into the bush' and the two children, A and B, witnessed sexual behaviour by his brother and the applicant's two boys.

1. These are, on their face, very serious allegations.

1. Later in November 2012, C was interviewed by JIRT in respect of the allegations. He repeated the allegations in respect of his brother. He did not repeat allegations in respect of the applicant's two boys.

1. In December 2012, caseworkers of the respondent interviewed child A. A decision was made by the respondent on 13 December 2012 to remove the children A and B from the care of the applicant. The applicant attended a meeting with the respondent on 14 December 2012. At that meeting the applicant was advised that the children would be removed and the children were removed that day. The applicant was provided with correspondence outlining the reasons why the children were removed. She was later provided with correspondence giving additional detail regarding the reasons as to why the children were removed from her care.

1. In addition to the concern as to the risk of the children remaining in the care of the applicant in light of the allegations made by C about the applicant's two boys, the respondent identified the following further matters as the basis for the removal of A and B:

(a)   Possible breaches of undertakings signed on 8th November 2012

(b)   Lack of appropriate supervision for the children;

(c)   Inadequate and/or inappropriate sleeping arrangements for the children.

1. The young person making the sexual abuse allegations, C, is a young person who has been identified by the JIRT team as having a long history of developmental trauma. During JIRT interviewing with respect to the allegations it was reported that C became distressed and began to cry and the interviewing was suspended. He did not make any disclosure consistent with the allegations he made to his carer concerning sexual abuse by the applicant's two boys. Nor did he repeat the allegation of sexual behaviour in the presence of the children the subject of these proceedings. JIRT were unable to proceed with a criminal investigation of the allegations made by C due to the lack of detail of the disclosures. FACS however substantiated that C had been the victim of sexual abuse by his older brother.

1. In respect of the allegations made by C against the foster carer's children, in January 2013 JIRT, FACS, and Health jointly decided that there would be no further investigative interviews done with Child C until such time as he has engaged with a sexual assault counsellor. They determined that he would benefit from engaging in a therapeutic relationship with a counsellor.

1. As a result, at the time of hearing, no further interviewing of C had been undertaken.

1. The applicant denies all allegations and wishes to have the children, A and B returned to her care.

ROLE OF THE TRIBUNAL

1. The decision to remove children from the daily care and control of a foster carer 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).

1. In conducting this review, the Tribunal stands in the shoes of the decision-maker 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 ss.63 and 115; YG & GG v Minister for Community Services [2002] NSWCA 246 at [25]).

1. 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 decision-maker (Administrative Decisions Tribunal Act 1997 s.63(3)).

STATUTORY PROVISIONS

1. The decision the subject of these proceedings is a decision taken under the CYPCPA and regulations.

1. The objects of the CYPCPA 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.

1. The principles to be applied in the administration of the CYPCPA are contained at s.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.

1. Sections 11, 12, 13 and 14 of the CYPCPA provide for participation in decision-making and placement principles for Aboriginal children and young people. Chapter 8 of the CYPCPA 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 (s.136). The applicant is an authorised carer.

1. The CYPCPA 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.

1. The CYPCPA 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). The respondent is a designated agency.

ISSUE AND CONCLUSION

1. 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 remove the children from the care of the applicant the correct and preferable decision?

1. We find it was and the decision should be affirmed.

THE EVIDENCE

APPLICANT'S EVIDENCE

1. The applicant relied upon evidence from herself and her mother. She was cross-examined. She was frank and forthcoming in her evidence. She was an impressive witness.

1. The applicant is a married woman with four children - two boys (aged 15) and two girls (aged 17 and 8). She has been in a relationship with her husband for 18 years.

1. She agreed that as a result of the allegations there were child protection concerns in respect of A and B. She did not deny that C had made the allegations. She expressed appropriate concern for the children removed from her care and also concern for her 2 children the subject of the allegations. Not surprisingly, the evidence disclosed the events were distressing for her and her family.

1. She understood that the JIRT investigation had been suspended because of the psychological trauma to C. She agreed that if C maintained his position with regard to the allegations that A and B would have to be removed. She said that she was heartbroken because of the removal of the children and because of the allegations made against her sons. She denies the allegations that her children would be involved in any sexual assault as alleged.

1. In response to the concerns regarding the children's sleeping arrangements, the applicant's evidence was that caseworkers from the respondent had initially attended the house in 2010 to assess the sleeping situation to ensure adequate arrangements had been made for the children. The applicant's evidence was that the boys always had access to their own beds, that they never shared beds with others, that there were two bunk beds in their room. The boys were never made to sleep on the floor.

1. The applicant says that the caseworkers were aware of the arrangement. The applicant states that she could not understand why after two years the sleeping arrangements had been raised as a problem. She says that on the last occasion when a caseworker did an inspection of the house the only concern raised was to put covers on the power points. No other concerns about sleeping arrangements were made. In cross-examination the applicant stated that the younger boy always slept with her and her husband. She stated that child A had nightmares when he first came into her care and it took her 3-4 months to settle him.

1. In response to the concerns regarding supervision, the applicant says that the boys have never been to the dam unsupervised. The house paddock had an electric fence and the little boys never went beyond it except with her or her husband.

1. She states that the boys were never let to go into the bush with her boys because the applicant felt this would be too much responsibility as A and B were very little.

1. She agreed that A had displayed sexualised behaviour as a result of the circumstances before he came into her care and she agreed that he was damaged as a result. She also agreed that it was important to protect the children given their history. She says she contacted the respondent agency to assist her with respect to aspects of the boys behaviour and arrangements had been made for the children to attend PANOC counselling. The applicant stated that after about 18 months this behaviour stopped. The applicant stated that counselling was requested for the elder boy but the agency failed to make any arrangements for this.

1. The applicant says that when the her mother had the care of the older brothers, they would see each other every morning and every afternoon as the applicant's mother lived across the road. They would spend time together on weekends.

1. On 25 June 2012, the respondent contacted the applicant to write an incident report about one of the children breaking his arm.

1. The applicant says states that child B re-broke his arm after an initial break had occurred when the child was still in the care of his biological mother. The report had to be corrected as an officer of the respondent had stated that the child had broken his arm in two places whilst in the care of the applicant.

1. Child A suffered an injury when he was visiting a friend's farm after he climbed up onto a gate to look at the calves and the gate fell back on him. The applicant described the incident as "a freak accident" as the gate was not properly attached. She says the accident was not due to a lack of supervision. The applicant travelled with the child to a hospital in Brisbane and stayed with him until he was discharged. She described this as 'traumatic' for everyone involved.

1. The applicant stated that she was happy to sign the undertakings that she would appropriately care for the children and she denies breaching them in anyway.

1. In response to the allegation that the applicant had missed medical appointments for the children, the applicant says that no contact with the agency was received until 16 July 2012 when the agency informed the applicant that she had missed medical appointments. The applicant considered that she had missed one medical appointment. The applicant stated that the caseworker would call her about appointments on the day of the appointment. Due to the extremely short notice she was not always able to get the children to these appointments. She states that she was very confused at the requests to attend appointments and she had only missed them when the children had the mumps. In re-examination, the applicant stated that the boys were progressing well in terms of their health. Caseworker for the respondent, Lillian Khan, agreed in cross-examination that overall the boy's health was okay.

1. The applicant denies allegations that there was a lack of bedding available or that the boys visited the dam unsupervised. The applicant claims to have received very little support from the respondent agency and she says that despite numerous inspections and visits the concerns had only been raised two years after the children had been living with the applicant.

1. The applicant gave evidence that it was her opinion that the respondent agency had a vendetta against her family. She considered that the respondent organisation did not investigate the allegations sufficiently and she questioned the competency of the respondent organisation. She expressed concern regarding the turn-over of case workers. Despite her views regarding the competency of the organisation, the applicant gave evidence that that she would be able to work with the respondent agency in the future. She stated that in the future working with respondent she would follow up her conversations whereas in the past she left matters in the hands of the respondent.

RESPONDENT'S EVIDENCE

1. The respondent tendered documents evidencing the decision to remove children from the care of the applicant. It tendered Department of Family and Community Services event records and contact records. It relied upon affidavit evidence from two caseworkers. These affidavits deposed to the circumstances founding the issues that led the children being removed from the care of the applicant.

1. This material included information regarding incidents concerning one of the older siblings who had run away and made contact with the applicant. We have had regard to this material but it is of no relevance in determining what is in the best interests of the two children the subject of these proceedings.

1. The respondent submitted that the reason why the JIRT investigation was discontinued was because there were serious concerns about the impact of the questioning on the emotional and psychological state of C, that he was not in an appropriate psychological place to facilitate or support the making of decisions and that he did not have any further information to give but that he needed time and therapeutic intervention.

1. The respondent considered that to refer a decision or delay such decision may result in the children being in limbo for months or years which was not in their best interests.

1. The respondent submitted that the children should not be restored to the care of the applicant in circumstances where the JIRT investigation into the allegations made by C against members of the applicant's household has not been finalised.

1. The caseworkers were available for oral evidence and were cross-examined. Little was gained from their evidence.

GUARDIAN AD LITEM

1. A statement was filed by the Guardian ad Litem, Ms Seychell. She stated that she had spoke to the party's legal representatives regarding the removal of the children from the care of the applicant. She stated that she had visited the children at their foster placement on two occasions. The boys are placed together and she was satisfied that the placement was proceeding well and the foster carers were committed to caring for the boys. She stated that she thought the boys appeared happy and well adjusted. She considered that it was in the boy's best interest for them to remain in their current placement.

1. In consideration of all of the evidence and the age and developmental level of the children and the principles of the CYPCP Act, we consider that the decision made by the respondent is the correct and preferable decision.

UNACCEPTABLE RISK

1. In the circumstances of this case, the alleged failure by the applicant to ensure the children in her care attend medical appointments and the allegations with respect to supervision and sleeping arrangements of the children would, alone, not found sufficient reason to remove the children from the care of the applicant. There is no evidence that the applicant has engaged in a pattern of behaviour suggestive of neglecting the boy's medical needs. The evidence was that overall the health needs of the two children was satisfactory.

1. However, the allegations made by C are of a very serious nature. C had made the allegations to his current foster carer. They have not been repeated. C is a young person who has been described as having a history of developmental trauma and the evidence discloses him to be a vulnerable child. He and his siblings have a past history of harm and neglect. The JIRT investigation of these allegations has not been finalised because of the emotional circumstances of C. The foster carer to whom C was said to have made the allegations was not called to give evidence in the proceedings. The allegations have not been tested and cannot be tested in the foreseeable future. The applicant agreed that in light of the allegations it was appropriate to remove the children from her care.

1. Children who are placed in out-of-home care are the most vulnerable children in our society and deserve the highest standard of support and care to ensure they are provided a safe environment free of any form of abuse. Once a child in out-of home care has been placed, disrupting that child's placement can be very descriptive. It is important to avoid or at least limit such disruptions.

1. In considering the available evidence, it is not possible to make a positive finding that the allegations made against the children of the foster carer have substance. The respondent acknowledged that the evidence before the Tribunal would not support such a finding. All agree that the allegations give rise to a risk. The risk cannot be quantified or measured until the investigation is complete. Nor is it possible to accurately identify safety measures until the allegations have been investigated and the investigation is complete.

1. The role of this Tribunal is not to determine if the allegations are proven. The Tribunal's role is to determine if the correct and preferable decision has been made considering the material before it. The Tribunal's function must be exercised in accordance with the principle in s.9 (1) of the CYPCPA which states:

(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.

1. In deciding what is the correct and preferable decision, on the material before the tribunal, the tribunal must have regard to the safety, welfare and well-being of the children subject of the decision, as the paramount concern. The issue for determination in these proceedings is whether or not, given the fact of and nature of the allegations, there is an unacceptable risk to the children that they are at a risk of harm should the children be restored to the care of the applicant. The respondent determined that the risk was unacceptable. We have to determine if, in the circumstances of this case and on the evidence now available, the respondent made the correct and preferable determination.

1. In a protective jurisdiction, dealing with children facing additional vulnerability due to having already removed from families due to abuse or neglect, it is necessary to err on the side of caution to ensure the safety, welfare and wellbeing of the children.

1. In the circumstances of this case, we affirm the decision of the respondent.

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Decision last updated: 21 November 2013