DNW v Challenge Community Services

[2019] NSWCATAD 91

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DNW v Challenge Community Services [2019] NSWCATAD 91
Hearing dates:	15 November 2018
Date of orders:	27 May 2019
Decision date:	27 May 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member Emeritus Professor P Foreman, General Member
Decision:	The decision of the respondent dated 6 July 2018 is affirmed.
Catchwords:	ADMINISTRATIVE LAW – child protection –care and protection of children – weight of evidence in a protective regime – limits on testing of evidence
Legislation Cited:	Administrative Decisions Review Act 1997 Children and Young Persons (Care and Protection) Act 1998 Children and Young Persons (Care and Protection) Out-of-Home-Care Regulation 2012 Civil and Administrative Tribunal Act 2013 Community Services (Complaints Reviews and Monitoring) Act 1993
Cases Cited:	YG & GG v Minister for Community Services [2002] NSWCA 247
Texts Cited:	Nil
Category:	Principal judgment
Parties:	DNW (Applicant) Challenge Community Services (Respondent)
Representation:	Solicitors: DNW (Self Represented) (Applicant) NLS Law Solicitors (Respondent)
File Number(s):	2018/00248184
Publication restriction:	Pursuant to s 64 (1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, her partner, any children, or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons, or any risk of harm reporter.

REASONS FOR decision

Introduction

1. The applicant seeks administrative review of a decision by the respondent cancelling her authorisation as a foster carer for Challenge Foster Care under the Children and Young Persons (Care and Protection) Out-of-Home-Care Regulation 2012. The decision to cancel the authorisation arises from concerns raised about the foster carer (and her partner) by the reportable conduct division.

2. The respondent made a decision on 20 June 2018 to cancel the authorisation. (The respondent later refers to this decision as a decision to suspend the authorisation). It appears that the applicant then sought internal review on 24 June 2018. The applicant applied for administrative review by the Tribunal pursuant to s 245 (1) (c) of the Children and Young Persons (Care and Protection) Act 1998 (the Care Act) on 13 August 2018.

3. The matter arises from allegations concerning the applicant’s partner’s behaviour towards foster children in their care in the period prior to November 2017 where a number of allegations of assault, neglect and violent behaviour were made against him. The children in their care were placed in respite care while the allegations were investigated. The children and the applicant and her partner were separately interviewed as part of the investigation. The investigation process concluded around mid 2018 with 11 sustained findings on allegations of reportable conduct against the applicant and 19 sustained findings against her partner.

4. The conduct concerning the applicant involved a finding that she failed to act in the circumstances of many of the 19 sustained reportable conduct matters perpetrated by her partner. The applicant was the only authorised carer during the period of the alleged behaviour with her partner’s status being that his carer status was pending. This is because he was due to undertake a carer’s assessment. The Tribunal understands that neither the applicant or her partner have cared for children as foster caters since November 2017.

5. On 20 June 2018 the respondent notified the applicant that her carers authorisation was suspended. (As per [2] above the actual Notice uses the term ‘cancelled’).

6. The June 2018 action by the respondent resulted in a request for an internal review by the applicant. That internal review was requested on 24 June 2018 whereby the applicant provided the respondent with further information about the circumstances of the care arrangements and household, and wished those matters to be considered factually and applied to the other evidence concerning the allegations. The respondent considered that material and maintained their findings in respect of all of the allegations.

Jurisdiction of the Tribunal

7. The Tribunal’s power to review decisions concerning authorised carers arises under s 245 (1) (c) of the Children and Young persons (Care and Protection) Act 1998. (The Care Act). The section 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:

(a)   a decision of the relevant decision-maker to suspend a person’s authorisation as an authorised carer or to impose conditions on a person’s authorisation,

(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),

…

8. Other provisions of the section do not concern these proceedings. However, there are commensurate provisions enlivening the Tribunal’s jurisdiction to conduct an administrative review. Those provisions arise under the Community Services (Complaints Reviews and Monitoring) Act 1993. Section 28 relevantly provides:

28 Applications to Tribunal for administrative reviews of decisions

(1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions:

(a) a decision that is an administratively reviewable decision under section 193 of the Adoption Act 2000, section 36 of the Adoption Information Act 1990, section 35 of the Disability Inclusion Act 2014 or section 245 of the Children and Young Persons (Care and Protection) Act 1998,

….

(Emphasis added)

9. There was no dispute that an application concerning the suspension or cancellation of an individual carers authorisation in circumstances of the care relationship involving the applicant and the respondent agency, would fall within the review jurisdiction of the Tribunal. However due to the manner in which the applicant framed her application to the Tribunal, the respondent initially approached the matter as a summary dismissal application due to a lack of jurisdiction.

Terms of the applicant’s application for review

10. In her application for review which initially included her partner as a co-applicant, the grounds for review were stated as follows:

We are not satisfied with the outcome. Our response, answers to the allegation and additional evidence was not treated with equity and fairness. We are not intending to foster care anymore. However, we want to clear our names.

11. The issue of jurisdiction was raised briefly at the start of the hearing. The respondent took issue with the partner of the applicant being nominated as co-applicant, as he was not an authorised carer at any time. In those circumstances the respondent submitted that he (the partner) had no remedy under the provisions of the two Acts providing jurisdiction to the Tribunal. The basis of this was by way of a reference to the Care Act. Section 245 (1) (a) – (l) inclusive provides for the types of decisions that are reviewable. The relevant provisions relating directly to care arrangements appear to refer to decisions relating to entities such as ‘carers’, ‘an agency’, ‘a person’ and similar descriptions. For these entities the legislation refers to a ‘person’s authorisation as an authorised carer’ (s-1(a)), ‘accredit or not accredit an authorised Public Sector agency or an organisation…. as a designated agency’. (s-1 (b)).

12. It appears that an individual must posses an ‘authority’ under the Care Act in order to have standing to seek review. An individual obtains an authority at the end of an application and assessment process whereby they become authorised or not. If they obtain the authority they become an authorised carer for the purpose of the Care Act.

13. The respondent submitted at hearing that the partner (co-applicant) (given the reference DNX) appeared to be challenging the decision not to proceed with the carer assessment process. The respondent submitted at hearing that the partner did not have standing to pursue the matter as there were no reviewable decisions under any of the governing legislation which applied to him. The partner of the applicant did not have any legal status under the Care Act or related legislation. He was not an authorised carer at any time during the foster arrangements of the applicant and the matters to which these proceedings relate.

14. In addition as he did not have any legal status as a carer under the governing legislation then he was not able to avail himself of any remedy by way of administrative review before the Tribunal.

15. It was submitted by the DNX that his status was relevant because he is the person who most of the critical findings of the investigations go against. There are more sustained findings against him that the first applicant (DNW). While he may not have been an authorised carer the applicant submitted that the decision impacts on him significantly. By being part of the application (as the co-applicant) like DNW, he was attempting to clear his name.

16. The Tribunal decided at the hearing that the partner (DNX) did not have standing to make the application to the Tribunal as he was not a person against who a decision had been made under s 245 of the Care Act, specifically as he was not a person holding an authority under s-137 of the Care Act, and no decision had been made arising from the authority capable of administrative review under s-245. The Tribunal also observed that he was not a person authorised to bring the application on behalf of another person. In making this decision the Tribunal observed that because of his relationship to the evidence upon which the review was made, it would be inappropriate to consider joining him to the proceedings under s 44 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act). In this regard the Tribunal noted that there was no application for joinder before it, presumably because the application had initially been framed as a co-application.

17. The main submission on jurisdiction by the respondent did not concern DNX (the partner) but focused on DNW’s substantive application. The respondent set out the legislation relating to the authorisation and de-authorisation of carers in detailed written submissions. In submissions filed three weeks prior to the hearing the respondent states:

The application does not specifically request a review of a decision to suspend or cancel her authorisation as an authorised carer, to remove the subject children from her care or any other decision as listed in section 245 of the Care Act.

18. The Tribunal understands this submission relates to the specific wording in the application for review as set out at [10] above.

Consideration of jurisdiction

19. The application for administrative review relates to a decision of the respondent agency. The application filed 13 August 2018 and received as Exhibit ‘A-1’ does include the decision for which review is sought. At Point 2 of the NCAT approved application form, the heading: ‘2. DECISION FOR REVIEW’ appears. The form requests that the decision for review be attached to the application, and asks a procedural question about the decision (when the applicant was notified of it). The applicant attached the letter from the respondent dated 16 July 2018. This letter appears to be the respondent’s response to the internal review request (dated 24 June 2018). The letter concludes with the following:

We confirm that the recommendations listed in our letter dated 20th June 2018 remain the same.

20. The 20 June 2018 letter is correspondence by the respondent to the applicant informing her that:

Your authorisation as a foster carer for Challenge Foster Care has been Cancelled under the Children and Young Persons (Care and Protection) Out –of-Home-Care Regulation 2012 Division 2 Clause 42 due to concerns raised within the reportable conduct investigation.

21. We are satisfied that on the basis of the evidence and material set out at paragraphs [19] and [20] above that there is before the Tribunal an administratively reviewable decision. In making this finding we are satisfied that sections 7, 8, 9 and 45 of the Administrative Decisions Review Act 1997 (the ADR Act) have been met.

22. For completeness we note that at hearing the bundle of evidence and written submissions received as Exhibit ‘A-2’ responds to earlier submissions of the respondent on this point. At page 1 the applicant submits:

In the paperwork proved [sic] to us by NLS Law it is not clear if we are seeking the review of the decision of the investigation or decision to de-authorise (the applicant’s) carer authorisation. Our application stated that “we don’t intend to foster care anymore” Whilst we don’t have intentions of being permanent foster carers anymore, we would still like the opportunity to make that decision for ourselves. I would like to make it clear that we are seeking a review of the decision of de-authorisation as a carer for (DNW –the applicant).

23. We therefore find that the Tribunal has jurisdiction to determine this matter.

The Hearing

24. The hearing took place at Armidale on 15 November 2018 where the applicant was unrepresented and the respondent was represented by a legal practitioner. The first part of the hearing involved the Tribunal explaining to the applicant in some detail the administrative review process and what the role and powers of the Tribunal were in the matter.

25. The Tribunal has a duty under s 38 (5) of the NCAT Act to explain and assist the parties in respect of the procedure of the Tribunal. The section provides:

(5)   The Tribunal is to take such measures as are reasonably practicable:

(a)   to ensure that the parties to the proceedings before it understand the nature of the proceedings, and

(b)   if requested to do so—to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and

(c)   to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.

26. In addition, as the applicant represented herself, we assisted the applicant’s understanding of our role and the role of the respondent’s representative, the purpose of evidence in chief and cross-examination. (s-38 (5) Civil and Administrative Tribunal Act 2013).

27. After deciding on status of the partner (DNX) and then hearing the jurisdiction issue, the Tribunal proceeded with the evidence. At the conclusion of the hearing the parties sought and were granted time to file and serve further evidence and submissions.

28. The applicant made a number of submissions to the Tribunal concerning matters that aggrieved her about the process of the investigation and the decision to de-authorise her as a foster carer. As these points preceded her evidence we list them in point form below:

• The applicant took issue with the fact that on 27 November 2017 the Caseworker did not hand over any letter.

• There was a concern by the applicant that the child ‘J’ had been coached during the investigation interviews and responses.

• On 24 November 2017 there was an attendance at the primary school to speak with the child ‘J’ and an attendance at the High School to speak to ‘S’ – but the respondent had no notes of these interviews.

• The applicant expressed her concerns that the above matters took three days to act on, and how this seemed incredulous if the welfare and interest of the child was the paramount consideration.

• In respect to a number of the allegations about her partners and her yelling at the children, the applicant submitted that they only raise their voices.

• The partner has prior to the allegations being raised discussed or raised with the respondent the issue of ‘time outs’.

Applicant’s evidence

29. The applicant was asked about some of the text messages that were in evidence including one where there was a photo of the applicant’s son. When asked if she thought it was appropriate to send that message to another child the applicant noted that the recipient was 15 years of age.

30. The applicant was questioned about the message appearing on page 119 of Exhibit ‘A-3’ being a print out of a text message. The message concerned an exchange between the applicant and one of the former foster children discussing the impact of the birth of their own child on the foster children and matters relating to the investigation and outcome. When asked if she believed that message was appropriate to send to a child the applicant conceded that it probably was not appropriate to send such a message at that time.

31. The respondent’s representative took the applicant to the Code of Conduct and the impact that such behaviours (discussing the investigation and potentially having the children ‘take sides’ in the matter) and asked whether such behaviour and breaches were in the best interests of the children. The applicant conceded that they may not be, however she explained the motivation for the behaviour as trying to help ‘S’. However the applicant agreed that such behaviour might put ‘S’ in an unsupportive situation in her current placement and cause emotional confusion.

32. The applicant advised that until the completion of the investigation she never knew the details of the allegations, only the headings used to briefly identify / describe the allegations.

33. The applicant advised that she only sent the text messages to other children after the investigation was concluded.

Respondent’s submissions at hearing

34. The respondent submitted that the allegations are serious and that the children had been uplifted and placed in respite care as at a date in late November 2017.

35. The initial Helpline report was the origins of the Departmental investigation with the children being interviewed by the Department prior to February 2018. In late February the children were formally interviewed and the carers were interviewed separately on the following day, at which time they were provided with a summary of the allegations.

36. Challenge had arranged for an independent entity (Comserve) to conduct an independent investigation. The respondent submitted that the investigation report is balanced in that it takes into consideration the context of the allegations and the fact that independent corroboration or verification is unlikely and difficult in such matters.

37. The respondent also submitted that the outcome indicates a level of balance in that not all of the allegations are sustained. Of the 51 allegations made 19 were sustained as reportable conduct matters. The three children were interviewed separately and the applicants interviewed together with both Facs and Comserve.

38. The respondent took the Tribunal to page 20 and 26 of Exhibit ‘A-3’ which is page 8 and 14 of the Comserv interview with the applicant (individually on 13 March 2018). The respondent submitted that these matters are indicative of the applicant’s lack of understanding or insight as to what was occurring in the home and that certain behaviours had a distressing and detrimental effect on the children.

39. The respondent submitted that something happened in the household or relationship between the children and the adults in November 2017 which caused the child ‘J’ to write a letter to the caseworker on 21 November 2017. As a result of these allegations and investigation commenced and identified reportable conduct. The respondent submits that ‘J’s request (in the letter) comes out of the blue and is prior to any respite care’.

34. The respondent made oral submissions that foster carers are held to a higher standard that other adults. The submission included a view that even if the failure to act allegations concerning the applicant had not been sustained, the SMS evidence itself was significant as it was indicative of a behaviour or behaviours that were not supportive of children.

35. The objects and principles of the Care Act have as their paramount consideration that children are to be the protected.

36. In concluding the hearing the respondent submitted that if the Tribunal did not uphold the decision then it would be very difficult to find that the applicant (and her partner) could have unconditional authorisations as carers due to the significant sustained findings of an independent entity.

The statutory approach

43. The objects of the Care Act are set out in section 8. That section provides:

8 What are the objects of this Act?

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.

44. The Court of Appeal has observed what approach the Tribunal should take when conducting an administrative review of a reviewable decision under the Care Act. In the case of YG (YG & GG v Minister for Community Services [2002] NSWCA 247) the Court set out the statutory approach. At [25] the Court observed:

25   There are some indications suggesting that, at least in the case of a review by the Tribunal, the question is what was the correct and preferable decision at the time the decision was made. Section 64(1) refers to any relevant government policy in force at that time, and s.66(2)(b) provides that the Tribunal decision is prima facie taken to have had effect on and from the date of the administrator's actual decision. However, in my view those indications are not sufficient to overcome the force of the wording of s.63(1), notably the use of the word "is" after the words "correct and preferable decision", rather than the word "was"; and the unlikelihood that the Act would intend that the Tribunal, after a full review of the merits, should give effect to what it considered to be the correct and preferable decision at the time the decision was made, even though that was no longer the correct and preferable decision at the time of the Tribunal's decision. In other words, contrary to what the Appeal Panel said, my opinion is that, on a merits review by the Tribunal or by the Appeal Panel under s.115, there is no two-stage process: the issue for determination is what is the correct and preferable decision at the time of the determination, irrespective of whether it was or was not the correct and preferable decision at the time it was originally taken. If necessary then, the Tribunal may make an order under s.66(2)(b) that its decision take effect on and from some date other than the original decision.

45. It is clear therefore that the matter is to be considered on the current evidence and position of the parties. It is also clear that the best interests of the child (or children) is the paramount consideration in both the actions of the designated agency, and in coming to any decision about the review by the Tribunal.

46. Section 9 (1) of the Care Act provides a statutory framework for the above principle. The section provides:

9 Principles for administration of Act

(1)   This Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount.

Consideration

47. The matters outlined by the applicant at [28] above are in our view predominantly if limited bearing on the central issue we must determine. The one issue of some concern is the assertion that the child ‘J’ was coached in his answers. Whilst we might not agree that there is significant evidence to support this (on the current paper based holdings), in our view this issue could not be cured by any approach at hearing. The ordinary course if there were concerns that a young person’s evidence was in some way compromised, would be to apply for a separate representative such as a Guardian Ad Litem (GAL) to be appointed by the Tribunal. No such application was made prior to the hearing. In addition we note that due to the passage of time, and the fact that ‘J’ has now been in respite and potentially a further placement, in our view such a course would now be of limited value even if it was readily available.

48. It has been argued that the Care Act requires that children in out of home care have a safe and nurturing environment. In this context the sustained allegations are summarised as follows:

• That (DNX– the applicant’s partner) assaulted ‘J’ by slapping him repeatedly if he laughed until he stopped. The applicant failed to act.

• That DNX ill- treated ‘J’ by making ‘J’ hit ‘M’ (another child) in the face when they were fighting one another stating: ‘get you, you idiot, slap your brother in the bloody face’.

• That DNX ill-treated ‘J’ by making ‘J’ continue to fight ‘M’ if he thought ‘J’ had not hit ‘M’ hard enough.

• That DNX ill-treated ‘J’ by driving him to the Police Station and threatening to leave him there if he didn’t stop being naughty.

• That DNX ill-treated ‘J’ by making him pack up all his belongings and stating that he could no longer reside in the home.

• That DNX ill-treated ‘J’ by grabbing him by both legs, putting him upside down and taking him outside and hanging him by his legs on a tree in the backyard. The applicant failed to act.

• That DNX ill treated ‘J’ by wrapping a belt tightly around his and ‘M’s waists so both were held together by the one belt for several hours, forcing them to eat their meal whilst in this state. The applicant failed to act.

• That DNX ill-treated ‘J’ by using his car at speed to cut off the applicant whist leaving the property. DNX opened her door, grabbed her keys and yelled at the children.

• That DNX physically assaulted ‘M’ by hitting him in the face with an open hand.

• That DNX physically assaulted ‘M’ by hitting him repeatedly if he laughed and until he stopped. The applicant failed to act.

• That DNX ill-treated ‘M’ by making him hit ‘J;’ in the face hard when they were fighting each other. The applicant failed to act.

• That DNX ill-treated ‘M’ by making him continue to fight with ‘J’ if he thought that he had not hit ‘J’ hard enough. The applicant failed to act.

• That DNX ill-treated ‘M;’ by taking him to a Police Station and stating ‘I’ll give you one more chance’.

• That DNX ill-treated ‘M’ by making him pack up his belongings and stating that he could no longer reside there.

• That DNX ill-treated ‘M’ by hanging him by his legs on a tree in the backyard. The applicant failed to act.

• That DNX ill-treated ‘M’ by wrapping a belt tightly around his and ‘J’s waist so both were held together by the one belt for several hours, forcing them to eat their meal whilst in this state. The applicant failed to act.

• That DNX ill-treated ‘M’ by using his car at speed to cut off the applicant whilst leaving the property. DNX opened her door, grabbed her keys and yelled at the children.

• That DNX ill-treated ‘S’ by using his car at speed to cut off the applicant whilst leaving the property. DNX opened her door, grabbed the keys and yelled at the children. The applicant failed to act.

• That DNX ill-treated ‘S’ by telling her to pack her bags and that he would return her to Challenge.

49. The above findings were all arrived at following the independent investigation of these and a significant number of other (not sustained) allegations. The two officers who conducted the investigation reached their conclusions in part on the evidence and responses of the applicant.

50. The applicant’s response or rebuttal of the allegations gives a different character to much of the behaviour. In some instances she attempts to (understandably) explain her partner’s behaviour as something far more benign than child abuse or causing harm. Some instances are explained because of cultural nuances and the way or manner that DNX communicates with the children. There was the earlier reference to speaking in a loud voice, which was raised at hearing.

51. In other instances the applicant seized on certain details of the allegations and provided evidence which in her view indicated that the alleged behaviour situations could not have occurred. An illustration of this approach was the hanging by the ankles and hung from a tree allegation involving ‘J’. The applicant maintained that the relevant property had no trees by the fence and as a result the allegation had been disproved.

52. The respondent relied significantly on the matters referred to in the Code of Conduct which was tendered as exhibit ‘R-3’. Specifically the respondent relied on the provision that an authorised carer is required to:

Immediately report to the designated agency any allegations or incidents of abuse, neglect or ill-treatment you are aware of

Maintain the rights of the child and young person in your care as set out in the NSW Charter of Rights for Children and Young Persons in Out–of-Home-Care in NSW

53. We note that child protection investigations are not exact evidentiary matters as the context involves young persons who have allegedly been subject to trauma (which arises from the allegations). In addition in matters such as this the children come from a background of a care placement. We are not saying that these children were especially vulnerable over other children, as we do not know their background prior to this placement. All that we know is that they were all under the responsibility of the Minister and subsequent and associated Children’s Court orders.

54. Such matters are subject to a difficult evidentiary context for various and obvious reasons such as those outlined in the paragraph above. However whilst the requisite standard is broadly the civil standard or balance of probabilities, the Care Act places an extra consideration or presumption focused at the protection of children. This paramount consideration places the care and wellbeing of children above all other considerations. In such matters outcomes are not always consistent with the interpretation of witnesses and recollections of the import that can be attached to certain events.

55. A matter that may seem trivial at the time, or is brushed aside or otherwise explainable can legitimately take on a more serious characterisation when viewed in the context of child protection generally, and in particular a matter that falls within the realm of the Care Act.

56. We note that the Code of Conduct which arises under the subordinate legislation and regulations provides for a very high standard of conduct absolutely directed towards the safety and well-being of children. In out view the respondent correctly identifies the fact that foster carers are held to a higher standard than other persons responsible for the care of children. The nurturing, development and support extend to all facets of the care relationship.

57. In the current matter it appears that the care arrangement shifted slightly when DXN decided to cohabit with the applicant. Over the few remaining years new regimes and parenting approaches were introduced into the household and as the children matured their responses and reactions to these changes also developed.

58. As the respondent submits, where young people are able to form their own views on matters concerning their safety, welfare and well-being we are required to give due weight to their views in accordance with their developmental capacity and the circumstances, as expressed in s 9 (b) of the Care Act.

59. In assessing the evidence we are mindful that none of the evidence other than the applicant’s evidence concerning the matters post the uplift of the children in November 2017 has been tested. Whilst none of the applicant’s responses to the allegations have been tested beyond the internal review and the matters raised at hearing, neither has the respondent’s evidence been scrutinised beyond the analysis and assessment of the independent investigators. However we note that the NSW Ombudsman has received the material concerning the allegation and to an extent the evidence gathered as a result which was available at the time of the notifications in December 2017 and late January 2018.

60. We find that the evidence does not explain the absolute basis for ‘J’ raising the matters in November 2017. However the reason for the allegations coming to the attention of the relevant authority (the respondent) is not in our view, on the available evidence, a relevant consideration.

61. We also note that the applicant did not seek to give evidence at the hearing but gave her evidence as she sought to rely on certain documents which the respondent wishes to cross examine her on. Applying the procedures under s 38 of the NCAT Act as best we could at hearing, we sought to inquire of the applicant of certain matters. It is from these inquiries that the Tribunal understood much of the applicant’s explanation for any issues in the placement and these matters were further elaborated upon in post hearing submissions. The practical position was however that the Tribunal was left to primarily conduct a paper based review of the matters which led to the de-authorisation of the applicant.

Findings

62. We find having examined all of the evidence and material before the Tribunal, that the decision to de-authorise the applicant as a carer, was justified having regard to the findings of the independent investigation, and the legislative provisions governing the foster care of children.

63. Whilst the applicant understandably disputes the vast majority of the findings of the investigation, and also takes issue with the manner in which the respondent has applied those findings to the foster care placement, in our view those findings were open to the investigators on the available evidence. In addition having received those findings, it was open to the respondent having regard to the principles and objects of the Care Act, to assess those findings and reach a conclusion available to it, that is to de-authorise the applicant as a foster carer.

Conclusion

64. Based on a consideration of all of the evidence, we find that the correct and preferable decision is to affirm the decision of the respondent. In reaching this position we have had particular regard to the nature of the evidence and the protective regime in which this jurisdiction sits. The paramount considerations under the Care Act persuade us that the decision to de-authorise the applicant, on the totality of the evidence was the correct and preferable decision.

65. It therefore follows that the application for review should be dismissed and that the decision of the respondent be affirmed.

Orders

1. The decision of the respondent dated 6 July 2018 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

Decision last updated: 27 May 2019