CXB v Biripi Aboriginal Corporation Medical Centre - [2017] NSWCATAD 372

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CXB v Biripi Aboriginal Corporation Medical Centre [2017] NSWCATAD 372
Hearing dates: 11-12 September 2017; 13 October 2017
Date of orders: 20 October 2017
Decision date: 20 October 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: Dr J Lucy, Senior Member
D Crowley, General Member
Decision:
In proceedings 2017/00048316:
1. The applicants’ application for leave to amend their application is refused.

2. The respondent’s name is changed to Biripi Aboriginal Corporation Medical Centre.

3. The respondent’s decision to remove the three girls from the applicants’ care is affirmed.
In proceedings 2017/00226365:
1. The respondent’s name is changed to Biripi Aboriginal Corporation Medical Centre.

2. The respondent’s decision to cancel the first applicant’s authorisation as an authorised carer is affirmed.
3. The respondent’s decision to cancel the second applicant’s authorisation as an authorised carer is affirmed.
Catchwords: ADMINISTRATIVE LAW – Authorised carers – Where allegations of ill treatment and assault made against male carer – Where one allegation sustained – Where there was a consistent pattern of allegations over a period of time – Where female carer acknowledged hitting child on one occasion and pulling child’s hair on another – Where female carer having difficulty coping with challenging behaviour of four children - Removal of children from care of authorised carers – Cancellation of authorisation of authorised carers – Risk of harm to children – Whether correct and preferable decisions
Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Children and Young Persons (Care and Protection) Regulation 2012 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW)
Cases Cited: Australian Securities and Investments Commission v Donald (2003) 136 FCR 7
DFaCS (NSW) and the Colt Children [2013] NSWChC 5
M v M (1988) 166 CLR 69
Re Tanya [2016] NSWSC 794
YG & GG v Minister for Community Services [2002] NSWCA 247
Category: Principal judgment
Parties: CXB (First Applicant)
CXC (Second Applicant)
Biripi Aboriginal Corporation Medical Centre (Respondent)
Representation:
Counsel:
I Fraser (Respondent)
Solicitors:
Willoughby Law (Applicants)
Lindeman Lawyers (Respondent)
Dr F Ainsworth (Guardian ad litem for the children)

File Number(s): 2017/00048316, 2017/00226365
Publication restriction: Section 65 of the Civil and Administrative Tribunal Act 2013 (NSW) applies to these proceedings. The publication or broadcast of the names of and identifying information about certain persons is prohibited by operation of s 65(2).

REASONS FOR DECISION

The applicants applied to the Tribunal for review of two decisions of the respondent (“Biripi”), an agency which provides out-of-home care. The decisions are to remove three children from the applicants’ care and to cancel their authorisation as authorised carers.
There is a history of allegations against the male applicant, including allegations made by the children, which satisfies us that he has used corporal punishment against them and has subjected them to humiliating treatment. The female applicant, who was the children’s primary carer, did not manage the challenging behaviours of the children effectively and has admitted to hitting a child on one occasion and pulling a child’s hair on another.
We are not satisfied that either applicant is a suitable person to be an authorised carer and have decided to affirm Biripi’s decisions.

Jurisdiction

The applicants sought review of Biripi’s decision to remove from them the responsibility for the daily care and control of three girls who had been in their care for several years (“the girls”). They also sought review of the agency’s subsequent decision to cancel their authorisations as authorised carers.
Section 245 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“Care Act”) relevantly provides:

“245 Decisions that are administratively reviewable by Civil and Administrative Tribunal
(1) Each of the following decisions made under or for the purposes of this Act or the regulations is an administratively reviewable decision for the purposes of section 28 (1) (a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993:
…
(a1) a decision of the relevant decision-maker to cancel a person’s authorisation as an authorised carer, other than a decision to cancel an authorisation granted on a provisional basis or a decision to cancel an authorisation on the occurrence of an event prescribed under section 137 (2) (e),
…
(c) a decision of the relevant decision-maker to grant to, or to remove from, an authorised carer the responsibility for the daily care and control of the child or young person,
…

(2) In this section, relevant decision-maker, in relation to a decision, means the person or body authorised by or under this Act or the regulations to make the decision, not being the Children’s Court.”

Although Biripi never formally made a decision to remove the girls from the applicants’ care, we are satisfied that Biripi in fact decided to remove from them the responsibility for the daily care and control of the girls in about January 2017. Biripi is the “relevant decision-maker” for the purposes of this decision as it was the designated agency with responsibility for supervising the placement, pursuant to s 140 of the Care Act.
Biripi made a decision to cancel the applicants’ authorisation as authorised carers within s 245(1)(a1) of the Care Act in June 2017. It was the “relevant decision-maker” as it had power to cancel the applicants’ authorisation as authorised carers pursuant to cl 42 of the Children and Young Persons (Care and Protection) Regulation 2012 (NSW) (“the Regulation”).
Section 28(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) provides, relevantly, that a person may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) of a decision that is an administratively reviewable decision under section 245 of the Care Act. That is what the applicants have done in this case.
The Tribunal has jurisdiction to review those decisions pursuant to s 9(1) of the Administrative Decisions Review Act and s 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (“NCAT Act”).

RELEVANT LEGISLATION

The Care Act provides for the placement of children in out-of-home care, for the removal of children from a placement, and for the authorisation and de-authorisation of carers. The girls who were in the care of the applicants are each subject to an order under s 79 of the Care Act allocating parental responsibility for them to the Minister.
Section 8 of the Care Act provides for the objects of the Act as follows:

“The objects of this Act are to provide:
(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
(a1) recognition that the primary means of providing for the safety, welfare and well-being of children and young persons is by providing them with long-term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles, 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 “paramountcy principle” is set out in s 9(1) of the Care Act. That subsection provides that the Act is to be administered 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.”

Section 9(2) contains other principles to be applied in the administration of the Care Act.
Statutory out-of-home care may be provided in respect of a child or young person only by an authorised carer: Care Act, s 136(1). An “authorised carer” includes “a person who, in accordance with the regulations, is authorised as an authorised carer by a designated agency”: Care Act, s 137(1)(b). A “designated agency” includes an accredited organisation that arranges the provision of out-of-home care: Care Act, s 139(1)(b).
Clause 42 of the Regulation relevantly provides for the cancellation or suspension of a carer’s authorisation as follows:

“42 Cancellation or suspension of authorisations by designated agencies
A designated agency may, by notice in writing, cancel or suspend the authorisation of an authorised carer if the agency is of the opinion that the authorised carer:
(a) is no longer a suitable person to be an authorised carer, or
(b) has failed to comply with any condition of the authorisation, or
(c) has failed to comply with any obligation or restriction imposed on the authorised carer by the Act or this Regulation, or
….”

The conditions of authorisation are outlined in cl 34 of the Regulation, which include a requirement in cl 34(4) that the authorised carer must comply with the Code of Conduct for authorised carers.
The role of the Tribunal is to decide the correct and preferable decision having regard to the material before it and any applicable law: Administrative Decisions Review Act, s 63(1). This means that the Tribunal stands in the shoes of the respondent and decides the matter afresh, as at the date of the hearing and not as at the date the decision was made: see YG & GG v Minister for Community Services [2002] NSWCA 247 at [25].

APPLICATION TO AMEND APPLICATION

On the first day of hearing, the applicants applied to amend their application to include a review of the decision to place the children with their grandparents. The Tribunal has a broad discretion, under s 53(1) of the NCAT Act, to amend an application if it considers this to be necessary in the interests of justice. We did not consider the proposed amendment to be necessary in the interests of justice and declined to give the applicants leave to amend.
The decision to “grant to … an authorised carer the responsibility for the daily care and control of the child or young person” is a reviewable decision, pursuant to s 245(1)(c) of the Care Act. An application may be made to the Tribunal by any person who demonstrates to the Tribunal’s satisfaction that he or she has a genuine concern in the subject-matter of the decision concerned: Community Services (Complaints, Reviews and Monitoring) Act, s 29(1). We accept that the applicants have a genuine concern in the subject-matter of the decision to place the girls with the grandmother. (We note that, whilst the proposed application was in respect of a decision to place the girls with the grandparents, it appears they have in fact been placed with the grandmother).
The applicants’ application for review of the placement decision was probably out-of-time, or alternatively was premature. Whilst Biripi accepted that it had decided to remove the children from the applicants’ care, it said that no final decision had been made about placing the children with the grandmother. On one view, a decision was made to grant to the grandmother (being an authorised carer) the responsibility for the daily care and control of the girls in about January 2017. On another view, that decision is yet to be made. If the decision was made in January 2017, as appears to be most likely, leave would be needed to apply for review of the decision now, given that the application is substantially out-of-time.
Our main reason for rejecting the amendment application, however, was that insufficient notice of it had been given to Biripi, and the grandparents had not been notified of it. It was not consistent with the guiding principle, to facilitate the just, quick and cheap resolution of the real issues in the proceedings (NCAT Act, s 36(1)), to adjourn the proceedings to give the grandparents an opportunity to be heard about the proposed amendment. We also took into account the consideration that a speedy resolution to the question of whether the children would return to the applicants’ care was in the best interests of the children (see Care Act, s 9(1) and (2)(e)).
The decision to refuse the amendment application does not, of course, preclude the applicants from applying to the Tribunal, in a separate application, for review of the placement decision. This is another consideration which supports our view that it was not desirable, or necessary in the interests of justice, to allow the amendment to the existing application, as proposed on the first day of the hearing.

BACKGROUND

The applicants are a married couple. We will refer to the first applicant in these reasons as “the foster father,” to the second applicant as “the foster mother” and to them together as “the foster carers.”
The foster mother is categorised as an indigenous carer, whereas the foster father is not. The foster father is a truck driver and the foster mother is a full-time carer.
The foster carers have two adult daughters, both of whom are authorised carers.
The foster carers were the authorised carers of three Aboriginal sisters, in primary school. We will refer to them each as “the youngest girl,” “the middle girl” and “the oldest girl.”
The youngest girl and the oldest girl were placed with the foster carers when the youngest girl was 10 months old and the oldest girl was nearly six. At this time, the foster carers were already the authorised carers for a boy who is now sixteen years old (“the boy”). The middle girl came into their care about five months later when she was about five years old.
When the girls were first placed in the foster carers’ care, they saw their paternal grandmother and her partner for two hours once a week. This changed to a full day contact, once a fortnight, several months later.
We will refer to the paternal grandmother in these reasons, for convenience, as “the grandmother,” her partner as “the step-grandfather” and, together, we will refer to them as “the grandparents.”
The foster carers were informed by Family and Community Services, in 2011, that the grandmother has had a serious problem with alcohol and that there was an apprehended violence order in place, protecting the step-grandfather from her.
In 2012, Family and Community Services stopped managing the placement of the girls and the boy and Biripi was given responsibility for the placements.
On 2 March 2015, an allegation of harm report was made that the foster father smacked the oldest girl “on the bottom and up the head.” It was alleged that he hit the children with a thong. The foster father denied the allegation. There were further allegations that people could hear the foster father yelling and swearing at the children from outside the house. The allegation was investigated and a finding of “not sustained – insufficient evidence” was recorded.
In July 2015, the foster mother pulled the oldest girl’s hair. She called a Biripi caseworker and said: “I squeezed her hair a little bit and pulled it but then I stopped once I realized what I was doing.” She told the caseworker she was not coping well and that she and the oldest girl argue considerably. The caseworker made a “risk of harm” report (see Care Act, Ch 3, Pt 2).
On 11 August 2015, a telephone report to Family and Community Services was made alleging that, when the foster father wanted to sleep, the children were locked outside in the yard. The reporter said that the foster father swore and screamed at the children all the time about everything they do. The reporter also said that the children got pushed around and hit forcibly above their shoulders.
In April 2016, the girls were allocated a new Biripi caseworker. We will refer to her in these reasons as “the Case Worker.” The Case Worker made detailed case notes of visits to the home and meetings and also gave oral evidence at the hearing. We found the Case Worker to be a reliable witness and accept the Case Worker’s account of what occurred on her visits and in meetings.
On 19 April 2016, the foster mother rang Biripi requesting respite for the older two girls as they were being naughty and she needed time out.
A case note at the end of April 2016 indicates that the foster mother was feeling overwhelmed with the girls’ behaviours, which are described as back chatting, being disrespectful and disobeying her. About the same time, the foster father told the Case Worker that the girls play up on the foster mother when he is not at home. He also said that the girls were always back answering and that, when he was a boy, you would get a back hander if you carried on like they do.
In early May 2016, the foster mother rang the Case Worker and told her that the middle and youngest girl had been tormenting the boy, and that the boy had then got a knife and attempted to cut himself. The boy has an intellectual disability.
On 14 June 2016, the middle girl asked the foster mother if their grandparents were going to the athletics carnival in which the girls were participating. The foster mother said she was not going to ask the girls’ grandparents to come because the girls were being naughty. The foster mother made the middle child wait to eat her dinner until everyone else had finished, because of her behaviour that afternoon. After the middle girl had started her dinner, something happened which caused the middle girl to push the plate at the foster mother, or to hold it up, and the food went everywhere. Following this, the middle girl hit the foster mother in the face and the foster mother hit her back on the arm. The middle girl then said “I’m going, I don’t want to be here any more.” As she started to walk away, it is alleged that the foster mother pulled her hair and pushed her outside the house with the help of the two sisters and the boy. They are then alleged to have locked the middle girl outside for a short time while the middle girl kicked at the door. The foster mother says she did not push the middle girl outside, that the children did that, and that she then stood at the door (without locking it) until the middle girl calmed down.
The foster mother then rang Family and Community Services and told them some of what had happened, including that she had hit the middle girl. She told Family and Community Services that the middle girl had been playing up for weeks.
On 17 June 2016, the foster carers met with a carer support person and a manager from Biripi. The foster mother said that the children’s behaviours were getting worse, that they were consistently fighting and no matter what she did, they did not stop. The foster father said the children were rude and back chatting. When the Biripi carer support person referred to the effect of trauma on children, the notes of the meeting record that the foster father said that trauma was “a load of bumpkin” and that you get over it. (The foster father denies that he said this).
On the same day, the foster carers signed a new placement agreement for the middle girl. By signing the agreement, they agreed to adhere to the Code of Conduct for Authorised Carers, not to use corporal punishment and telephone the FACS helpline if the child made an allegation of harm.

On 22 June 2016, the foster mother rang Biripi as the middle girl was arguing with everyone and threatening to hurt the other children. The foster mother stated that she wanted the middle girl gone that night. Biripi arranged for the middle girl to go to respite care that night.
The following day, the middle girl told the Case Worker that the boy was picking on the youngest girl so that the middle girl and the boy had got into an argument. She said her foster mother was in her room with the door closed at the time.
Case notes of a visit to the family home on 28 June 2016 describe the younger girl screaming uncontrollably, the girls fighting with each other and saying hurtful things to the middle girl (indicating that she was unwanted), and the foster mother looking blank and struggling to manage the children. The notes indicate that, later that night, the foster carers’ adult daughter called Biripi to say that the foster mother was in her room crying and the middle girl wanted to leave. The Case Worker returned to the home, where the middle girl told her that she wanted to leave and not to come back, because “they don’t want me here.” The middle girl was then taken to a different placement, initially on a temporary basis. The Case Worker also reports the middle girl telling her that she wanted to live with her grandparents because they loved her.
Notes of a meeting at which the foster carers were present on 30 June 2016, indicate that the foster mother said she was having a hard time with all the children in the placement, and that she had been spending a lot of time crying and feeling overwhelmed. The foster father said he was frustrated by the children’s behaviours.
Biripi sent the applicants an email on 24 November 2016, stating that the girls would be going to their grandparents’ place from 22 or 23 December 2016 and would return to the applicants on 3 January 2017.
On 28 November 2016, the middle girl (now living with a different carer) made allegations of ill treatment against the foster father to the carer with whom she was living. Biripi’s policy is to put children into a respite placement when such an allegation is made, whilst the allegation is investigated.
On 28 November 2016, Biripi sent the applicants an email saying that there were some allegations which needed to be investigated.
The girls went to their grandparents’ place on 22 December 2016. On about the same day, Biripi advised the applicants that allegations had been made against the foster father concerning the boy.
The girls did not return to the applicants’ home on 3 January 2017, as originally planned.
On 6 January 2017, Biripi arranged for the boy to go into respite.
On about 9 January 2017, at a meeting with the applicants, the Chief Executive Officer of Biripi told them that the girls would remain with their grandparents on respite whilst an investigation was conducted into the allegations.
On 4 January 2017, Biripi assessed the grandparents as kinship carers. The step-grandfather disclosed that he had recently been convicted of an assault on a minor and had been convicted of assault on the grandmother in 2002. Biripi approved the grandparents as kinship carers for the girls.
An investigator engaged by Biripi (“the investigator”) interviewed the applicants on 16 January 2017.
In January 2017, the applicants applied to the Tribunal for review of the decision to remove the boy from their care (proceedings 2017/00014339).
On about 7 February 2017, the investigator completed her report. She found one allegation to be sustained. This was an allegation that, if the children had been naughty while the foster father was away at work, and he returned from work in the early hours of the morning, he would wake them up, make them get out of bed and stand outside, and tell them they were not allowed to go back to bed until he gave permission.
The investigator found the following allegations not to be sustained, due to lack of evidence of weight or due to insufficient evidence:

In response to the middle girl’s refusal to wash her hair, the foster father entered the bathroom and poured cold water over her head. He then grabbed her by the wrist and dragged her out of the bath, causing redness to the wrist that remained visible the following morning;

As a form of punishment, the girls had to sit on the lounge room floor at night with their noses on the lounge and they were not allowed to fall asleep;

When the middle girl was 5 years old, she wet her pants. The foster mother put her in the bath. When the foster father found out, he grabbed her from the bath, dragged her to her bedroom and threw her on the bed, causing her to fall off the bed and hit her head;

On a number of occasions, the foster father hit the youngest girl hard to the bottom with his open hand, leaving red marks and welts;

On occasion, when the oldest girl was naughty, the foster father would chase her into the far paddock and throw things at her. He would make her stay on the other side of the paddock until the sun went down;

When the middle girl fought with one of her sisters, the foster father would make her stand in a corner sometimes for a very long time and would not let her move;

The foster father made the youngest girl stand in the corner and she was not allowed to sleep;

The foster father would sometimes smack the children with a thong;

The foster father had grabbed the oldest girl by the arm and threw her across the foster mother’s chair, then threw her outside;

On more than one occasion, the foster father had thrown the boy on the ground and hit him and kicked him;

The foster mother hit the oldest girl to the head with a torch.

The investigator gave a general summary of her findings as follows:

“Whilst only one component of the ill-treatment allegation against [the foster father] has been sustained there are concerns about [the foster father’s] role as a disciplinarian in the household. It is evident that [the foster mother’s] inability to cope with the demands of the [surname] siblings, whose individual needs, sibling rivalry, and complicated interactions are significant creates a context for [the foster father] to step in as the disciplinarian. The girls are collectively challenging, and whilst [the foster mother and the foster father] have been endeavouring to do their best it is evident that their poor relationship with Biripi and lack of trust that they are being adequately supported will be a major barrier for them as carers going forward. There are obvious community tensions and inter-relationships that impact on this carer household.
This investigation did not establish specific concerns about [the boy’s] care, apart from some insensitive comments made by [the foster father] who sees himself using old fashioned common sense when managing some of the challenges. [The boy] feels a strong connection to [the foster father and the foster mother] and wants to return there. [The middle girl’s] evidence that she has seen [the boy] mistreated has not been corroborated, however it cannot be dismissed either. [The middle girl] is now out of the home and with the benefit of a probing and specific interview she has provided a coherent picture of harsh and reactive discipline enacted by [the foster father], on the reports of his wife who is struggling to appropriately manage the needs of this sibling group as well as [the boy].
It is unfortunate that there were no carers reviews conducted in 2016 as these may have shed some light on how realistic it is to expect that a constructive and trusting relationship can be re-established with these carers. The disclosures of the children and [the middle girl] in particular, whilst not enough to reach sustained findings are enough to raise serious concerns about carer competencies. These must now be explored quite specifically and in depth to determine the future of these carers and their ability to work collaboratively with Biripi and other support services in the interests of these or any other foster children.”

On 13 February 2017, the applicants applied for review of Biripi’s decisions “to not return the children in our care” (proceedings 2017/48316). The children referred to were the three girls.
On 13 March 2017, Biripi sent the applicants’ lawyers the report of the investigator. In the letter, Biripi said that the boy would return to the applicants’ care whilst Biripi was “resourcing further family member.” The boy, however, remained in respite for more than a month after the letter was written.
In the late evening of 16 April 2017, the boy threatened to kill himself. His respite carer called the foster father and told him this. The foster father collected the boy from respite care, without authorisation to do so.
In May 2017, someone made an allegation that, some years ago at the home of the foster mother’s sister and brother-in-law, the foster father put the boy’s hand in a fire.
On 30 May 2017, the Children’s Guardian decided that the step-grandfather was subject to an interim bar (Child Protection (Working with Children) Act 2012 (NSW), s 17), being a bar on him residing on the same property as an authorised carer. After that point, the step-grandfather moved out of his home, where the girls were living.
In June 2017, the boy went to a relative’s house for respite. Shortly afterwards, Biripi moved the boy into the care of his biological father. There are some serious allegations about events which happened whilst the boy was with his father.
About 12 June 2017, Biripi wrote to the foster father, asking him to attend a meeting in relation to a further allegation. The foster father was unavailable at that time and requested another time for the meeting.
On 27 June 2017, Biripi wrote to the applicants, informing them that it had de-authorised them as carers. A Biripi manager gave the following reasons for de-authorising the applicants as carers:

They were in breach of the OOHC Child Standards and Code of Conduct regarding the safety and wellbeing of the children in their care, and in relation to working with Biripi;

There were non-compliances with the carers agreement;

Between 2015 and 2017 there had been numerous non-ROSH (“Risk of Serious Harm”) and ROSH reports to the Child Protection Helpline that included all children in their care at different times, including three notifications to the Office of the Children’s Guardian of serious physical assault;

The applicants had been the subject of a sustained finding by an independent investigator of reportable conduct, and there were other concerns raised by the investigator’s report;

There were further allegations, not covered by the report, of a similar nature;

The applicants initially refused to sign the new placement agreement and attached undertakings.

The boy returned to the applicants’ care on 10 July 2017, apparently self-placing.
In July 2017, the applicants applied for review of the decision to de-authorise them as carers (proceedings 2017/00226365).
On 21 August 2017, the case management of the boy was transferred from Biripi to Family and Community Services. At the time of the hearing, the boy was still living with the foster carers, notwithstanding that their authorisations as authorised carers had been cancelled.
On the first day of the hearing, 11 September 2017, the applicants withdrew their application for review of the decision to remove the boy from the care. We dismissed that application under s 55(1)(a) of the NCAT Act.
At the end of the hearing, we gave an oral decision, affirming Biripi’s decision to remove the children from the applicants’ care. We reserved our reasons, and also reserved on the decision as to the cancellation of the applicants’ authorisation as carers. We directed the parties to provide written submissions on the following questions:

Whether the Tribunal is empowered to set aside the respondent’s decision to cancel the authorisation of the applicants as carers and to make a new decision in its place, imposing conditions on the authorisation; and

If so, whether this is the correct and preferable decision.

REASONS FOR AFFIRMING REMOVAL DECISION

Our affirmation of Biripi’s decision to remove the children from the applicants’ care was made at the conclusion of the hearing, prior to our decision to affirm the agency’s decision to cancel their authorisations as authorised carers. Accordingly, we need to give reasons for both decisions, even though the cancellation of the applicants’ authorisations as authorised carers means that the children may not lawfully be returned to them.
There is no provision in the Care Act or the Regulation which expressly confers power on a designated agency to place children with an authorised carer, or to remove children from an authorised carer. We consider, however, that the power to remove the children from their placement is an aspect of Biripi’s responsibility to supervise the placement, pursuant to s 140 of the Care Act.
The principle that the safety, welfare and well-being of the child or young person are paramount governs these proceedings: Care Act, s 9(1); Re Tanya [2016] NSWSC 794 at [69]. We have therefore considered and applied this principle when deciding whether the removal decision is, at the time of our decision, correct and preferable.
One of the key issues in these proceedings is the truth or otherwise of the allegations that the children have been physically and psychologically harmed by the foster father, in various ways over an extended period of time. There are also sustained findings that the foster father punished the children by waking them up in the middle of the night and making them stand outside, and that the foster mother pulled one of the girls’ hair. We therefore need to consider the risk to the girls if they return to the placement.
Rein J considered the test to be applied in decisions under the Care Act, where the paramountcy principle applies, in Re Tanya [2016] NSWSC 794. Re Taynya was an appeal from a decision of the Children’s Court to restore a child to her natural father, pursuant to provisions of the Care Act. Rein J cited with approval (at [69]) a passage from the decision of the President of the Children’s Court below:

“[22] It is now well settled law that in all decisions under the Care Act 1998 involving the paramount concern for the safety, welfare and well-being of a child, including issues of removal, restoration, contact, custody and placement, the proper test to be applied is that of "unacceptable risk of harm to the child": M v M [1988] HCA 68 at [25]. Whether there is an unacceptable risk of harm to the child is to be assessed from the accumulation of factors proved according to the relevant civil standard: see Lukeson v Page [2007] Fam CA 1235.”

See also DFaCS (NSW) and the Colt Children [2013] NSWChC 5 at [148].
When considering whether the correct and preferable decision is to remove the girls from the applicants’ care, it is thus relevant to consider whether there is an unacceptable risk of harm to the girls if they return. This does not necessarily involve making findings of fact about the truth of each allegation made against the foster carers.
In M v M (1988) 166 CLR 69, the High Court (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ) observed that a court should not make a positive finding that an allegation of sexual abuse is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. Their Honours continued at 77:

“It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk.”

Applying the authority of M v M in the present context, we have considered whether, on the evidence, there is a risk of abuse occurring if the girls are returned to the foster carers and we have assessed the magnitude of that risk. We consider, for the reasons that follow, that there is a risk and that it is significant.

Foster father

The foster father denied all of the allegations made against him. He also denied ever using corporal punishment with any of the children. He denied making the girls stand in the bathroom, but agreed he woke them in the night (“on advice”) so as to stop them wetting the bed. He said he did not make the girls stand in the yard, but put them in separate parts of the yard when they had misbehaved to separate them, “for 5 minutes max.”
We did not find the foster father to be an impressive witness. He denied knowledge or memory of many matters, many of which were significant. He was unwilling to make concessions, especially concerning the problems the children and his wife faced in the placement. His denials of many of the allegations were unpersuasive, particularly in light of the variety of people who made the allegations (they came from different sources), the period of time over which they were made, the number of allegations, the consistent pattern to the allegations, and the attitudes the foster father openly expressed about discipline, which were consistent with the alleged behaviour. Many allegations were made by the girls, with much detail provided. As the respondent has submitted, even if the allegations were untrue, the making of serious allegations by the children suggests that the placement lacked stability.
The foster father denied any memory of incidents which were independently documented. For example, the boy’s teacher documented an incident where the foster father was “loud rude and abrasive at McDonalds” on an excursion. The foster father said he did not remember being at McDonalds at that he “didn’t do those sorts of things.” It seems to us very unlikely that a teacher would record such an incident unless the foster father had behaved in the way alleged, or in a similar fashion.
The foster father also said he did not remember allegations being made, in August 2015, that he wished to sleep during the day (following a night shift) so locked the children outside. He denied doing this. The fact that he has apparently forgotten that such a serious allegation was made against him is itself concerning.
We consider that there is substance to at least some of the allegations made against the foster father. We are satisfied that he used corporal punishments against the girls, particularly when they were younger, as the children themselves have claimed. We are persuaded, as the investigator was, that he has woken the girls up, and made them get out of bed and stand outside, as a punishment. This is a particularly humiliating and intimidating punishment for young children, which shows a disregard for their physical and emotional well-being. Whilst there is insufficient evidence to determine whether all of the remaining alleged conduct occurred, there is sufficient evidence for us to conclude that he has been responsible for ill-treating the girls over a number of years.

The foster father showed a lack of insight, when giving evidence, into his own behaviour as a foster father and as to difficulties within the placement of the three girls. When asked how the placement of the three girls was going in 2016, he said it was going well, with some normal sibling rivalry. He also said it was stable. He said that he had no concerns, that year, as to how his wife was handling the behaviours of the children. He denied that she had struggled with them, but acknowledged that the girls got unruly. When asked about the “issues” with the middle child, he said there were “no issues.” The foster father denied having said that he was frustrated by the children’s behaviours, at a meeting in June 2016. However, he had little memory of that meeting and that comment is consistent with other comments he made that year. We prefer the contemporaneous evidence of the case note and find that the foster father did express that view.
The evidence, which is set out above, indicates that the placement was at a crisis point in 2016. The children were constantly fighting and the foster mother was unhappy and unable to manage the children effectively. This culminated in the middle girl choosing to leave the placement in the middle of the year, saying she felt unwanted. We do not accept that the foster father considered that the placement was going well that year and find, rather, that he gave evidence which he thought would best advance his case, even where this did not accurately reflect the true situation. If we are wrong and he in fact did consider that it was going well, and still does, this demonstrates a complete lack of understanding of the children’s needs and feelings and those of his wife.
The foster father’s lack of insight and lack of empathy are factors which support the decision to remove the children from his care.

Foster mother

The foster mother had a greater understanding of the difficulties in the placement than the foster father. The foster mother accepted, when giving oral evidence, that it had got to a point in 2016 when she felt overwhelmed. She also said that it had “always been the case” that the girls played up for her. However, she said the difficulties became acute in June 2016. She did not accept that she was unable to cope with the girls but said there were times when she was struggling to appropriately manage them.
The foster mother said she did not remember the occasion on which she hit the middle child and rang Family and Community Services about it. She accepted, however, that it may have happened. We find that it did happen. The documentary evidence recording the event is unambiguous and there is nothing to suggest that that evidence is inaccurate.
The foster mother denied the allegations against her husband. She also denied that there was a lot of yelling in the house, saying that her husband spoke loudly (due to hearing difficulties) and that the girls perceived it as yelling. This was unpersuasive. Whilst we accept that the foster father has a hearing difficulty, the reports of him swearing loudly at the children are not attributable to this. Nor is the report of him being aggressive and loud with the boy at McDonalds. We did not find the foster mother’s denials that any of the allegations against the foster father had substance, to be credible.
The foster mother’s evidence about her own behaviour was, at times, reasonably candid and, at others, less so. Whilst she was prepared to admit she found the children’s behaviour difficult, her account of certain incidents which had occurred was self-serving. For example, she said in oral evidence that she had pulled the hair of one of the girls because that girl was chasing after her sister to hurt her. She also said it was not a deliberate thing. The account she gave at the time, however, was different. On the day the incident occurred, the foster mother said that the oldest girl “was being mouthy and rude, and yelling to the other kids, ignoring me so I sent her to the room. While in the room she was yelling, so I started yelling back and then I pulled her hair.” We find that the contemporaneous document is more likely to be accurate than the explanation at the hearing, given two years later.
The foster mother’s account of the incident in which the middle girl was pushed outside is not entirely convincing. The foster mother maintained, in oral evidence, that the middle girl’s sisters had pushed her out the door, and that the foster mother then stood at the door and asked the middle girl to calm down before she came back inside. The middle girl’s account, at the time, was that the foster mother had pulled her hair and shoved and pushed her outside with the help of the other two sisters and the boy. They then shut the door and locked her outside, whilst the middle girl banged on the door to be let in. The child’s account appears to us to be more consistent with the foster mother’s behaviour earlier in the evening and the amount of tension in the house. It may be, however, that the child was confused as to which person was pulling her hair and pushing her. There is insufficient evidence to make a finding about what occurred.
We find that the foster mother struggled to manage the girls and the boy over a long period of time. She was offered a significant amount of support and training by Biripi, and undertook a number of courses to help her manage the children, who exhibited very challenging behaviours. She partially implemented some of the strategies given to her by Biripi to help manage the children’s behaviours. Ultimately, however, she could not manage them effectively. The foster mother’s use of violence was limited, but significant. Pulling a child’s hair and hitting a child in response to being hit demonstrates impulsive behaviour, itself child-like, which probably resulted from the stress of an antagonistic situation. The foster mother was also complicit in the foster father’s harsh discipline, by denying that it had occurred, and by relying upon him to manage the children’s behaviours by belittling punishments, when she was unable to do so.

Relevance of new placement

It was submitted for the applicants that the Tribunal should consider the deficiencies in the current placement when determining whether the correct and preferable decision was to return the children to the applicants. The applicants’ solicitor, Ms Willoughby, submitted that the Tribunal should “undergo an exercise of comparison between placement with the grandparents and placements with the Applicants”. She raised concerns about the grandmother’s drinking and history of violence, the grandmother having been convicted of offences in 2009 and 2012 for common assault. Ms Willoughby also relied upon evidence that the step-grandfather had been sleeping in the girls’ beds with them, that he had been convicted of assault in 2002 and assault on a minor more recently, and that he does not have a working with children check clearance. Ms Willoughby submitted that the Tribunal could not approve the girls remaining in the care of their grandparents, even on an interim basis, without being satisfied that they have the requisite Working With Children Check clearances.
As the Tribunal made clear at the hearing, its role is to review the decision to remove the girls from the applicants’ care, not to review the decision to place the girls with their grandparents. The Tribunal is not therefore engaged in a comparison as to which is the better placement, and it does not have power, in this review, to “approve” the girls remaining in the care of their grandparents.
Mr Fraser, for the respondent, submitted that the relevance of the current status of the girls with their grandmother is a point of reference for issues relating to the placement with the applicants, which sheds light on the issue of whether the correct and preferable decision is that the girls be removed from the applicants’ care. We accept that this is the case. It is also relevant to consider the girls’ views, expressed whilst living with their grandparents, in respect of any possible return to living with the applicants (Care Act, s 9(2)(a)).
The Case Worker’s evidence, which we accept, is that the girls all told her, when she visited them in May, June and July 2017, that they were happy where they lived and felt loved. We also accept the evidence of guardian ad litem that, in May 2017, the oldest and middle girls told him that they were undecided about where they wanted to live and the youngest girl told him that she wanted to live with the foster carers. In August 2017, the oldest girl told the guardian ad litem that she wished to stay with the grandparents and the middle girl said she was more settled than she had been previously. The youngest girl did not say much. The guardian ad litem observed them to be relaxed in the company of their grandparents.
This evidence establishes that the girls are relatively settled where they are. They have expressed conflicting views about where they want to live, which may reflect conflicting feelings about this issue. However, with the exception of the youngest girl’s expressed wishes in May 2017, none of the children has indicated a clear desire to return to the applicants’ care.

Conclusion as to removal decision

We consider that there would be an unacceptable risk of harm to the girls, if they were to return to the placement with the foster carers. We are satisfied, on the evidence, that the foster father has physically disciplined the children, and that he habitually intimidated and humiliated them. The foster mother had little control over the children’s behaviour, and at times felt overwhelmed by it. Although she clearly cares for the children, she had insufficient control over her own behaviour in relation to the children, occasionally being violent. The placement was unstable, and did not offer the girls the security and safety they needed. The circumstance that the middle girl chose to leave the placement, after many years of living with the applicants, is significant.
For these reasons, we decided on the final day of the hearing, that the correct and preferable decision was to affirm the respondent’s decision to remove the girls from the applicants’ care.

REASONS FOR AFFIRMING DE-AUTHORISATION DECISIONS

Biripi submits that the decisions to cancel the authorisation of the foster mother and the foster father as authorised carers are the correct and preferable decisions because neither is any longer a suitable person to be an authorised carer (Regulation, cl 42(a)). Biripi also says that the applicants have failed to comply with conditions of their authorisation and with an obligation or restriction imposed upon them by the Care Act or the Regulation (Regulation, cl 42(b) and (c)). Biripi has not identified the specific condition of their authorisation or the specific legislative obligation with which it says that the applicants have not complied. However, it relies upon the following propositions:

The applicants each pose an unacceptable risk of harm to children, based upon the sustained allegations against each, and the other allegations made against them;

They lack capacity to provide stable and supportive placements for children in out-of-home care;

The applicants lack insight into any deficiencies they have displayed as carers;

They have refused to work constructively with Biripi;

They have breached the Code of Conduct;

The foster father took the boy from the home of a respite carer without a proper basis.

When considering whether the correct and preferable decision is to cancel the authorisation of the foster father and that of the foster mother, it is relevant to consider the statutory scheme for authorising authorised carers. A designated agency must not authorise an applicant as an authorised carer unless it has determined that the applicant is capable and suitable to be an authorised carer (Regulation, cl 30(4)). A designated agency must not determine that an applicant is capable and suitable to be authorised as an authorised carer unless certain conditions are met (Regulation, cl 30(5)). These include that:

“the agency has obtained or conducted the suitability assessments of the applicant and persons that reside on the same property as the applicant in accordance with [cl 30] and Schedule 2 and has determined that the result of each element of the assessment is satisfactory” (cl 30(5)(c)); and

the agency has taken into account the functions of an authorised carer and any risk that the applicant would be unable to properly perform those functions and any risk to a child or young person were the applicant to be authorised (including risks from the applicant’s home or persons who reside on the same property as the applicant) (cl 30(5)(f)(i) and (ii)).

The matters which are deemed by cl 30(5) of the Regulation to be relevant to a person’s suitability to be an authorised carer when the person applies for authorisation are also relevant to a person’s suitability to be a carer within cl 42 of the Regulation.

Foster father

We consider that the foster father poses an unacceptable risk of harm to children, based upon the sustained allegation against him, and the other allegations made against him. The reasons why we have come to this conclusion are set out above. In light of his conduct towards the children in his care in the past, we do not consider that the foster father is suitable to be authorised as an authorised carer. We accept the respondent’s submission that he lacks the capacity to provide a stable and supportive placement for a child in out-of-home care and that he lacks insight into the deficiencies he has displayed as a carer.
We find that the foster father has failed to provide a care environment where the girls were not exposed to physical, sexual, psychological or verbal abuse, ill treatment or neglect. This is a breach of the Code of Conduct. The evidence establishes that he has also breached cl 41(1)(a) of the Regulation, which relevantly provides that an authorised carer, in correcting and managing the behaviour of a child in out-of-home care must not use any physical coercion or physical punishment or any punishment that is intended to humiliate or frighten a child.
For these reasons, we affirm the decision to cancel his authorisation as an authorised carer. We are satisfied that he is no longer a suitable person to be an authorised carer, pursuant to 42(a) of the Regulation. We are also satisfied that he has failed to comply with his obligations under cl 41 of the Regulation, within cl 42(c) of the Regulation.

Foster mother

The foster mother could not effectively manage the care of four children at once. It is acknowledged that the task was very difficult. All of the children in her care exhibited challenging behaviours and the boy has intellectual disabilities. Nevertheless, she was offered a considerable amount of support from Biripi, and undertook a number of courses to assist her. The foster mother was unable to implement strategies effectively to control behaviours such as fighting and screaming. By her own evidence, she found those behaviours overwhelming at times.
The foster mother acknowledges having pulled a child’s hair on one occasion. We have also found that she hit a child after the child hit her in the face. We consider that these incidents occurred as a result of the foster mother’s inability to cope with situations which had escalated due to fighting and dissent between the four children in her care.
We have considered whether the correct and preferable decision is to set aside Biripi’s decision to cancel the foster mother’s authorisation as an authorised carer, and to substitute a decision that she be authorised as an authorised carer, subject to the condition that she care for only one child at a time (see Administrative Decisions Review Act, s 63(3)(c)). We invited submissions from the parties as to whether we had the power to make such an order. Biripi accepted that the Tribunal did have such power, because:

the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision, when determining an application for an administrative review (Administrative Decisions Review Act, s 63(2)); and

the power to impose conditions on the authorisation of an authorised carer in cl 34(1) of the Regulation is a power which is relevant to the review (Australian Securities and Investments Commission v Donald (2003) 136 FCR 7 at 13-14).

Ultimately, we do not need to decide whether the Tribunal has power to set aside the decision, and make a new decision that the foster mother be authorised as a carer, subject to conditions. This is because, having taken into account the matters relevant to the foster mother’s suitability, set out in cl 30(5)(f) of the Regulation, we are not satisfied that she is a suitable person to be an authorised carer. We have found that the foster father, who resides on the same property as the foster mother, poses a risk to a child or young person. We consider that, for this reason alone, the foster mother is not a suitable person to be an authorised carer.
The guardian ad litem submitted that there was no justification for de-authorising the foster carers as authorised carers, given what he described as “Biripi’s appalling unprofessional and harmful handling of this case.” This refers, as we understand it, to a variety of allegations concerning Biripi, including that Biripi returned the boy to his biological father’s care, without lawful authorisation to do so, and that the boy was then exposed to abuse. The guardian ad litem submitted that the proposed de-authorisation of the applicants as foster carers is a punitive action to punish the foster carers for their alleged unwillingness to work constructively with Biripi. In oral submissions, he said that the de-authorisation of the foster carers would be an “absolute disaster of enormous magnitude” for the boy, who is currently residing with them.
The guardian ad litem’s submissions display a misunderstanding of his functions and those of the Tribunal. The guardian ad litem was appointed to represent the interests of the children under s 45(4)(a) of the Civil and Administrative Tribunal Act. The function of a guardian ad litem is to safeguard and represent the interests of the children. The Tribunal’s function is to review the decisions made by Biripi. The conduct of Biripi is not under review.
It is doubtful whether, once the applicants withdrew their application for review of the decision to remove the boy from their care, the appointment of the guardian ad litem to represent the interests of the boy continued. That it did is made even more doubtful, by the circumstance that Family and Community Services resumed case responsibility for the boy, meaning that Biripi was no longer responsible for making decisions concerning him. The role of the guardian ad litem was, as we see it, to represent the interests of the girls.
We are nevertheless concerned about the effect, on the boy, of our decision to affirm the cancellation of the authorisation of the foster carers. The evidence indicates that he wishes to remain with the foster carers and has lived with them for a very long time. He will turn eighteen in just over a year and a change of placement could be very disruptive for him. He appears to be attached to both of the foster carers.
We do not consider that the potential effect, on the boy, of our decision to affirm the cancellation is a legitimate reason to make a different decision. In circumstances where we have found that the foster father poses a risk to children, it is not the correct and preferable decision for the foster carers to continue to be authorised carers.
For these reasons, we have decided that neither the foster father nor the foster mother remains a suitable person to be an authorised carer, within cl 42 of the Regulation, and the decision to cancel the authorisation of each is the correct and preferable decision (Administrative Decisions Review Act, s 63(1)).

ORDERS

For the reasons given above, we have made the following orders in proceedings 2017/00048316:

The applicants' application for leave to amend their application is refused.

The respondent's name is changed to Biripi Aboriginal Corporation Medical Centre.

The respondent's decision to remove the three girls from the applicants' care is affirmed.

In proceedings 2017/00226365, we make the following orders:

The respondent's name is changed to Biripi Aboriginal Corporation Medical Centre.

The respondent's decision to cancel the first applicant's authorisation as an authorised carer is affirmed.

The respondent's decision to cancel the second applicant's authorisation as an authorised carer is affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 20 December 2017

Medium Neutral Citation:	CXB v Biripi Aboriginal Corporation Medical Centre [2017] NSWCATAD 372
Hearing dates:	11-12 September 2017; 13 October 2017
Date of orders:	20 October 2017
Decision date:	20 October 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Dr J Lucy, Senior Member D Crowley, General Member
Decision:	In proceedings 2017/00048316: 1. The applicants’ application for leave to amend their application is refused. 2. The respondent’s name is changed to Biripi Aboriginal Corporation Medical Centre. 3. The respondent’s decision to remove the three girls from the applicants’ care is affirmed. In proceedings 2017/00226365: 1. The respondent’s name is changed to Biripi Aboriginal Corporation Medical Centre. 2. The respondent’s decision to cancel the first applicant’s authorisation as an authorised carer is affirmed. 3. The respondent’s decision to cancel the second applicant’s authorisation as an authorised carer is affirmed.
Catchwords:	ADMINISTRATIVE LAW – Authorised carers – Where allegations of ill treatment and assault made against male carer – Where one allegation sustained – Where there was a consistent pattern of allegations over a period of time – Where female carer acknowledged hitting child on one occasion and pulling child’s hair on another – Where female carer having difficulty coping with challenging behaviour of four children - Removal of children from care of authorised carers – Cancellation of authorisation of authorised carers – Risk of harm to children – Whether correct and preferable decisions
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Children and Young Persons (Care and Protection) Regulation 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW)
Cases Cited:	Australian Securities and Investments Commission v Donald (2003) 136 FCR 7 DFaCS (NSW) and the Colt Children [2013] NSWChC 5 M v M (1988) 166 CLR 69 Re Tanya [2016] NSWSC 794 YG & GG v Minister for Community Services [2002] NSWCA 247
Category:	Principal judgment
Parties:	CXB (First Applicant) CXC (Second Applicant) Biripi Aboriginal Corporation Medical Centre (Respondent)
Representation:	Counsel: I Fraser (Respondent) Solicitors: Willoughby Law (Applicants) Lindeman Lawyers (Respondent) Dr F Ainsworth (Guardian ad litem for the children)
File Number(s):	2017/00048316, 2017/00226365
Publication restriction:	Section 65 of the Civil and Administrative Tribunal Act 2013 (NSW) applies to these proceedings. The publication or broadcast of the names of and identifying information about certain persons is prohibited by operation of s 65(2).