DRO v South Coast Medical Aboriginal Corporation

[2019] NSWCATAD 204

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DRO v South Coast Medical Aboriginal Corporation [2019] NSWCATAD 204
Hearing dates:	20 May 2019
Date of orders:	02 October 2019
Decision date:	02 October 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C A Mulvey, Senior Member D Crowley, General Member
Decision:	(1)   The decision made by the Respondent made on 14 December 2018 to cancel the authorisation of DRO as an authorised carer is set aside (2)   It is declared that DRO is to remain as an authorised carer with the following conditions: (a)   DRO is only authorised to care for up to two children at any one time; (b)   DRO’s mother is to have no involvement in, or in relation to, the care of children with whom DRO has the daily care and responsibility as an authorised carer.
Catchwords:	ADMINISTRATIVE LAW – review under section 245 Children and Young Persons (Care and Protection) Act 1998 (NSW) – child protection – care and protection of children – cancellation of authorisation as an authorised carer.
Legislation Cited:	Adoption Act 2000 Adoption Information Act 1990 Administrative Decisions Review Act 1997(NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Children and Young Persons (Care and Protection) Regulation 2012 Community Services (Complaints Reviews and Monitoring) Act 1993 Disability Inclusion Act 2014
Cases Cited:	Briginshaw v Briginshaw [1938] HCA 34 M v M [1988] HCA 68
Category:	Principal judgment
Parties:	DRO (Applicant) South Coast Medical Services Aboriginal Corporation (Respondent)
Representation:	Solicitors: A Robinson (Applicant) A Carter (Respondent)
File Number(s):	2018/00398306
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, his victims or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REASONS FOR DECISION

Introduction

1. The Applicant is an authorised carer under the Children and Young Persons Act 1998 (the ‘Care Act’). South Coast Medical Services Aboriginal Corporation (the Respondent) is a New South Wales Government designated agency providing out of home care to children in New South Wales.

2. A publication restriction applies in this matter. We have referred to the Applicant as ‘DRO’.

3. On 14 December 2018, the Respondent notified DRO of its decision to cancel DRO’s authorisation as an authorised carer (the Reviewable Decision).

4. The Reviewable Decision is an administratively reviewable decision. DRO is seeking that the Tribunal set aside the Reviewable Decision and make an order that her authorisation as an authorised carer not be cancelled.

The Hearing

5. The matter was heard over a day. No person was called for cross-examination. Oral and written submissions were made by the solicitors appearing on behalf of each of the parties.

Relevant Legal Matters

6. The Tribunal’s power to review decisions concerning authorised carers arises under s 245(1)(c) 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),

…

(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.

…”

7. 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,

….”

8. There was no dispute that an application concerning the cancellation of DRO’s authorisation falls within the jurisdiction of the Tribunal.

The applicable legal framework

9. The objects of the Care Act, are set out in s 8 and provide as follows:

(a)   that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and

(b)   that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and

(c)   that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment.”

10. The Care Act is to be administered under the principle that the safety, welfare, and well-being of children are paramount (the paramount concern): s 9(1) of the Care Act. 

11. Subject to that, the Care Act sets out other, particular principles to be applied in the administration of the Act. These are set out in ss 9(2), 10, 11, 12 and 13.

12. The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice - s38 Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).

13. The standard of proof is on the balance of probabilities. The High Court decision in Briginshaw v Briginshaw [1938] HCA 34 is relevant in determining whether the burden of proof, on the balance of probabilities, has been achieved.

14. Chapter 8 of the Care Act provides a model for the organisation of out-of-home care for children and young people.

15. Statutory out-of-home care may be provided in respect of a child and young person only by an authorised carer (s136 of the Care Act). Section 137 of the Care Act defines what is meant by the term ‘authorised carer’. This includes the principal of a ‘designated agency’ and ‘a person who, in accordance with the regulations, is authorised as a carer.’

16. The conditions of authorisation are set out in clause 34 of Children and Young Persons (Care and Protection) Regulation 2012 (the ‘Regulation’), which include a requirement that the authorised carer ‘must comply with the code of conduct for authorised carers.’ The ‘code of conduct’ is defined to mean the code of conduct for authorised carers approved by the Minister. Clause 35 of the Regulation provides that the designated agency that authorises a carer under the abovementioned clauses must cause the person to be given a copy of the authorisation in writing and the authorisation must set out the conditions of that authorisation.

17. Clause 41 of the Regulation makes provision for the management of behaviour of children and young persons. Clause 42 makes provision for the cancellation or suspension of an authorisation of a carer. The clauses are in the following terms:

“41. Management of behaviour of children and young persons

(1)   An authorised carer, in correcting and managing the behaviour of a child or young person in out-of-home care:

(a)   must not use:

(i)   any physical coercion or physical punishment (including corporal punishment), or

(ii)   any punishment that takes the form of immobilisation, force-feeding or depriving of food, or

(iii)   any punishment that is intended to humiliate or frighten a child or young person, and

(b)   must, in any event, use only behaviour management practices approved by the designated agency.

(2)   An authorised carer who finds that the approved behaviour management practices are not sufficiently effective to correct or manage the behaviour of a child or young person is to notify that fact as soon as practicable to the designated agency.

(3)   On receiving a notification under subclause (2), the designated agency, after assessing the situation, is to determine if the problem should be addressed:

(a)   by providing appropriate advice, support and training to the authorised carer and appropriate support to the child or young person, or

(b)   by changing the placement arrangements.

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

(d)   has failed to comply with a written direction to the authorised carer by the designated agency or the Children’s Guardian under section 157 (3) of the Act, or

(e)   has failed to uphold the Charter of Rights prepared under section 162 of the Act.”

Issue

18. In this matter the following issue must be considered:

1. Whether the Reviewable Decision made on 14 December 2018 to cancel DRO’s authorisation as an authorised carer is the correct and preferable decision having regard to any relevant factual material and any applicable written or unwritten law.

Evidence

19. The applicants’ evidence consisted of:

• Affidavit of DRO 9 April 2019 (A1).

• DRO’s application filed 24 December 2018 (A2).

20. The Respondent’s evidence included:

• Section 58 documents filed 25 January 2019 (R1).

• Affidavit of Richard Adler filed 6 May 2019 (R2).

• Affidavit of Naomi McKelvie filed 6 May 2019 (R3).

• Affidavit of Ms Aimee Lonesborough filed 6 May 2019 (R4).

21. DRO and the Respondent each filed lengthy written submissions.

The Reasons provided by the Respondent for the Reviewable Decision

22. In its letter dated 14 December 2018, the Respondent sets out the following reasons justifying the Reviewable Decision cancelling the authorisation of DRO as an authorised carer (Exhibit R1, page 1):

1. By leaving children previously in DRO’s care unsupervised with her mother, DRO has not complied with the written direction issued by the Respondent in or about February 2017.

2. This is the second time DRO has not complied with the written direction issued by the Respondent, having failed in or about February 2017 to comply with a direction issued in about 2013.

3. The Respondent is of the opinion DRO is no longer a suitable person to be an authorised carer due to concerns regarding her physical capacity, as outlined in the OT report dated 15/3/18.

The evidence and submissions of DRO

23. DRO read an Affidavit (Exhibit A1) which sets out the following.

24. She states that she is a proud Aboriginal woman of the Wiradjuri Clan. Her father died when he was 26 years of age. She has 3 brothers and sisters and a large extended family. As the eldest child, DRO took on responsibilities early by working part-time throughout her school years and contributing to household finances.

25. Throughout her life DRO has had a strong work ethic having been the owner and operator of several small businesses. She has worked in the hospitality sector, both front of house and back office and in and out of house events and management roles. She has had a lifelong interest in holistic healthcare and nutrition, with emphasis on food as medicine and in particular bush medicine. DRO formally studied nutrition and food science, psychology, organisational behaviour, business management, accounting, financial management and she has a post-graduate qualification in human resources management.

26. DRO’s daughter, who was born in the late 1990’s, resides with DRO in the family home. DRO’s former partner and the father of her daughter does not live them. However, they remain in close contact with each other.

27. In 2001, DRO was involved in motor vehicle accident at Kiama. As a result of the injuries sustained in the accident, being orthopaedic and a traumatic brain injury, DRO states: ‘This accident altered many things in my life and I had to learn to be mindful of my limitations.’

28. Prior to becoming an approved carer DRO underwent a medical assessment with her General Practitioner, Dr Devlin. She was cleared from a medical perspective to carry out the role of a foster carer.

29. Prior to her authorisation as an authorised carer, DRO said that she had several meetings with a number of officers of the Respondent and fully disclosed her health issues which mainly related to injuries she sustained in the motor vehicle accident. DRO annexes to her Affidavit a file note of Jannice Luland which is dated 30 October 2008. The file note was produced under Summons by the Respondent and records the following:

‘Dr Devlin has no concerns for DRO in relation to her health and care of children as DRO has raised her own daughter without any problems following her car accident some years ago.’

30. DRO attended training with the Respondent and was accepted as an authorised carer in 2009.

31. Immediately after being approved as an authorised carer, DRO accepted children on respite and emergency placements. A number of these children had challenging behaviours and they had little structure in their lives which affected how they reacted to everyday events. Prior to a permanent placement of child ‘D’, DRO accepted respite and short term care placements for over 20 children.

32. Child ‘D’ came into DRO’s care when she was a few days old. DRO and ‘D’ formed a strong attachment. A decision was made, following consultation with the Respondent, Dr Devlin and DRO’s daughter, for ‘D’ to become a permanent long term placement with DRO. Child ‘D’ is no longer in DRO’s care.

Response to allegations against DRO

Allegations 1 and 2

33. By leaving children previously in DRO’s care unsupervised with her mother, DRO has not complied with the written direction issued by the Respondent in or about February 2017.

34. This is the second time DRO has not complied with the written direction issued by the Respondent, having failed in or about February 2017 to comply with a direction issued in about 2013.

35. In October 2013, DRO had to travel interstate and left three children with whom she had the daily care and responsibility with her mother overnight. DRO had to extend her trip due to illness. DRO’s mother relinquished the care of the children to Family and Community Services (FACS) as she could not cope. DRO was told by a representative of the Respondent that she could not leave children unsupervised with her mother in the future.

36. Following events that occurred in October 2013, it is uncontroversial that on 26 November 2013, a letter was sent from the Respondent to DRO which stated ‘… in the future, if you are personally unable to maintain the care of any SCMSAC child in your care … in the event that you need to take some time away from the children … do not leave any children in the care of your mother’. DRO said that she interpreted that direction as stating that she could not leave child ‘D’, or any other child, with her mother unsupervised overnight or for long periods of time. DRO says that this interpretation is strengthened by her discussion with Ms McKelvie during an interview on 4 September 2014 which is referred to in paragraphs 8 - 11 of the Affidavit of Ms McKelvie (Exhibit R3). Ms McKelvie states:

‘I recall having a conversation with DRO approximately 12 months after the incident in October 2013. DRO was finding it difficult to comply with the direction regarding her mother and asked if it would be okay if she left the children with her mother for short periods of time. When explaining what she meant by ‘short periods of time’ to me, DRO gave the example of where child ‘D’ was asleep, or it was raining, and she had to go to the local shops for milk or bread. …

At the time of the conversation, I believe I said to DRO that I thought the examples she had given would probably be okay. However, I also made It clear to DRO that I did not have authority to approve her request and that she would have to speak to the OOHC Manager, Richard Ardler about it. …’

37. A file note of this conversation is annexed marked “A” in the Ms McKelvie’s affidavit (Exhibit R3).

38. In 2016, a friend of DRO had significant health care issues which required ongoing treatment. In February 2017, DRO offered to drive her friend to Wollongong to consult medical specialists. About that same time, DRO had also arranged to drop child ‘D’ at the Respondent’s office for a contact visit with her biological parents. The appointment of DRO’s friend changed. DRO could not drop child ‘D’ at the office as the office would have been closed. DRO said she sought approval from the Respondent (the OOHC Manager) to allow child ‘D’ to be transported to the contact visit by her mother. DRO said the OOHC Manager Barbara McLeod approved the change and believes that she had not breached any directions of the Respondent or the Code of Conduct. Approximately a week later, DRO said she received an email from Barbara McLeod, which attached a letter dated 23 February 2017 concerning her mother not being able to provide unsupervised care to children with whom DRO had the daily care and responsibility.

39. DRO deposes that in annual reviews with the Respondent her mother was required to produce current licensing, registration and insurance details in the event that the child ‘D’ was in a car being driven by her. DRO annexes at “C” an email to her Affidavit from Manager of Case Work, Ms Naomi McKelvie, which states: ‘…If I recall correctly when an annual review occurred approximately a year later it was deemed that DRO could leave child ‘D’ in the care of her mother for short periods of time, for example, it was raining and she had to go to the shop to get milk.’

40. We accept DRO’s evidence that in about November 2014 she had a reasonable belief that her mother was able to have the care of children with whom DRO had the daily care and responsibility for short periods of time providing she obtained approval from the Respondent.

41. Ms McKelvie does not recall whether DRO had said to her that she had received authorisation for her mother to drive child ‘D’ to the contact visit in 2017. There is no record by the Respondent as to the approval given. Despite the evidence of the respondent in this regard, we accept DRO’s unchallenged evidence that she had contacted the OOHC and received authorisation on this occasion to do so.

Allegation 3

42. The Respondent is of the opinion DRO is no longer a suitable person to be an authorised carer due to concerns regarding her physical capacity, as outlined in the OT report dated 15/3/18.

43. In relation to the other grounds for de-authorisation relied upon by the Respondent, DRO makes the following submissions:

1. Certificate issued by Centrelink (page 58 of Exhibit R1) indicates that DRO had been diagnosed with permanent Post-Traumatic Stress Disorder in July 2005 and a brain injury in 2008. Both diagnoses predate DRO’s engagement as an authorised carer with the Respondent. The documents have not been challenged;

1. DRO submits there is no evidence that her health has deteriorated since becoming a carer in 2009;

2. DRO states there is no evidence that she has failed to adequately care for any of the 24 children who were placed with her from 2009 to 2017. Indeed in the letter dated 26 November 2013 the Respondent’s Mr Ardler states to the contrary: ‘..Whilst we have no concerns for the care you have provided these children…we want to emphasise that you remain a highly respected foster carer for SCMSAC’.;

3. Dr Devlin’s report of 8 November 2017 refers to DRO being diagnosed with osteoarthritis and PTSD and specifically states that these diagnoses do not affect her ability to carry out the role as an authorised carer. DRO refers to his conclusion that she is ‘fit to be a carer physically and psychologically’;

4. assuming the opinion of the occupational therapist’s assessment is correct, such that DRO requires assistance from someone else to care for children, the evidence is that her daughter resides with her.

44. In relation to the allegations concerning DRO’s mental health, she deposes that in 2009 her General Practitioner, Dr Devlin, cleared her to be an authorised carer from a general health and mental health point of view. DRO does not accept that the occupational therapist selected by the Respondent enables a finding that she is ‘no longer a suitable person to be an authorised carer’. She states that in reality she has cared for about 24 children during the 9 years that she has been an authorised carer. DRO submits there is no evidence before the Tribunal to enable a finding that she is physical incapable to carry out the duties of an authorised carer and remain in the circumstances.

45. DRO finally concludes by submitting that the Respondent has focused on her disability rather than the fact that she has demonstrated the ability to care for over two dozen children. She states that to submit a person with a disability should not be able to care for children is contrary to the New South Wales Disability Inclusion Plan to which this Tribunal must give effect (s64 of the ADR Act).

Evidence Relied upon by the Respondent and the report of Ms Zoe Olsen, Occupational Therapist

Affidavit of Richard Ardler (Exhibit R2)

46. Mr Ardler is the PSP Manager of Out of Home Care employed by the Respondent. He has been in that role since January 2019. Mr Ardler deposes that Ms Barbara McLeod was also employed as a Manager Case Work between the period of December 2016 until March 2018 responsible for children placed with DRO. Ms McLeod is no longer employed by the Respondent, however, Mr Ardler was her direct supervisor.

Allegations 1 and 2

47. Mr Ardler said that the only allegation of reportable conduct that could be sustained relates to DRO’s failure to comply with the Respondent’s direction not to leave children in the care of her mother. He said that the direction was originally made by the Respondent following an incident in 2013. The events that led up to that incident had been raised with DRO concerning her mother’s interactions with children in her care. There had been difficulties between DRO’s mother and a specific child in about April 2013. It is alleged DRO travelled interstate leaving child ‘D’ and two other children with her mother. During DRO’s absence, her mother was unable to cope and ended up surrendering the children to FACS. The Respondent sent a letter to DRO, dated 26 November 2013, setting out amongst other things, its decision:

1. to contact the Respondent’s Case Worker to request or obtain approval for alternative care arrangements, if she is unable to personally maintain supervision of children in her care; and

2. not to leave any children in the care of her mother.

48. Mr Ardler states the Respondent in February 2017 learned that child ‘D’ had been driven by DRO’s mother to a family contact visit in Nowra on 15 February 2017. He said that this would have required DRO’s mother to be alone with child ‘D’ for approximately one hour. Mr Ardler deposes that the Respondent holds no record of DRO obtaining approval for her mother to drive child ‘D’ to Nowra. Mr Ardler criticises the reference made in the email annexed to DRO’s Affidavit above by stating: ‘If DRO had in fact sought and obtained last minute approval by telephone as she now alleges, she would have advised Ms McKelvie of this when she spoke to her on 23 February 2017, and based on Ms McKelvie’s email, this did not occur.’

49. Mr Ardler goes on to state that if such a request for approval had been made by DRO to the Respondent, emergency transport could have been arranged for child ‘D’.

50. As set out above, we accept the evidence of DRO in the absence of her being cross-examined. We find on the balance of probabilities, the approval was more likely than not sought by DRO and provided to her by the Respondent.

Allegation 3

51. Mr Ardler sets out that whilst DRO has been upfront about being involved in a motor vehicle accident in 2001 when she applied to be a foster carer in 2009, the full extent of her permanent psychological and physical impairments has not been declared, and, she did not disclose that her mother had been registered as her fulltime carer. He states that the reason provided by DRO during an interview on 29 September 2017 concerning her mother living with DRO was that it related to financial reasons. Mr Ardler says DRO had a duty to clearly inform the Respondent of her mother’s status as her carer. DRO’s mother’s interaction with children in DRO’s care would be greater given the need for her to act as DRO’s carer. Mr Ardler criticises the failure of DRO to fully inform the Respondent of any mental health or physical restrictions which affected, or had the potential to affect, DRO’s ability to provide care from 2009 to 2018. Had the Respondent become aware of what it determines is the ‘true situation’, these issues could have been taken into consideration when assessing risks associated with the placement and/or arranging supports for DRO.

52. We find Dr Devlin provided a clearance for DRO to be able to carry out the duties of an approved carer. We prefer and accept his evidence, together with the undisputed evidence of DRO that she has been entrusted to care for over 24 children during the time she has been authorised to care for children by the Respondent. Mr Ardler in his letter to DRO dated 26 November 2013, confirms: ‘there are no concerns for the care DRO was providing to children’. Since that time there is no additional evidence before us to enable a finding that DRO’s capacity to care for children has materially changed. It can be inferred that even if the Respondent had been aware of the ‘true situation’ the likely outcome would have remained the same, that being, there are no concerns for the care DRO was providing to children.

53. Mr Ardler goes on to state that there has been a breakdown of the carer/agency relationship which further supports the cancellation of DRO’s authorisation to be an authorised carer. In this regard, we find that evidence does not justify a conclusion that the relationship is irretrievably broken.

The Spoon Incident

54. A further allegation Mr Ardley submits should be considered relates to an incident occurring on 18 June 2017. Mr Ardler said DRO threw a tea spoon at child ‘D’ causing her to sustain a black eye. DRO said she tossed a teaspoon onto a bench which inadvertently hit child ‘D’. Mr Ardley states he is not convinced that a teaspoon tossed gently onto a kitchen bench could have bounced off and travelled a distance of one to two metres striking child ‘D’. The bruise on child ‘D’s’ eye is described as being the depth of a 5 cent piece, deep purple, with a line in it where the skin had been broken.

55. Mr Ardler refers to a home visit taking place between DRO and Ms McLeod. He said DRO could not describe what she had been doing with the spoon but knew exactly how it had been tossed. He states in his view this is ‘strange’ given the circumstances.

56. DRO was not cross-examined on this issue. In the circumstances, we find on the balance of probabilities, DRO’s unchallenged version of events must be accepted.

Evidence of Naomi McKelvie

57. In an Affidavit read by Ms Naomi McKelvie (Exhibit R3), Ms McKelvie sets out the events surrounding the incident in October 2013. She states that DRO’s trip to Melbourne had to be extended as a result of DRO becoming unwell.

58. Ms McKelvie refers to a conversation between herself and DRO regarding DRO’s mother caring for children during ‘short periods of time’. She said the conversation was prefaced by DRO giving examples of where child ‘D’ was asleep, or it was raining, or that she had to go to the local shops for milk or bread, and, that DRO suggested in these circumstances her mother could care for the children. Ms McKelvie says: ‘I thought the examples she had given would probably be okay. However, I also made it very clear to DRO that I did not have authority to approve her request and that she would have to speak to the OHC Manager Richard Ardler about it.’

59. In relation to the incident occurring on 15 February 2017, Ms McKelvie states that at no time did DRO mention that she had sought and/or obtained verbal approval from the Respondent by telephone on the day of, or the day prior to the contact visit in which her mother transported child ‘D’ to that appointment.

Evidence of Aimee Lonesborough

60. An Affidavit of Aimee Lonesborough sworn 30 April 2019 was read and is marked (Exhibit R4). The Affidavit essentially sets out the interactions that an employee of the Respondent, who is a Case Worker, has had with respect to two of the children that were in long term care with DRO.

Occupational Therapist’s Report, Ms Zoe Olsen

61. Ms Zoe Olsen, Occupational Therapist, is the author of a report dated 15 March 2018. That report is contained in the s58 bundle (Exhibit R1 at page 65 to 82). The assessment was undertaken to determine if DRO would have difficulties independently completing the tasks of a foster carer. The report references DRO’s involvement in a motor vehicle accident in 2001. The report of Dr Devlin dated 8 November 2017 and the Centrelink assessment of 26 September 2016 are also referenced in the report. DRO sustained fractured ribs, a punctured lung, fractured right ankle, damage to the right knee, whiplash, contusions to the abdomen and a brain injury as a result of the motor vehicle accident. DRO reported to Ms Olsen as having ongoing pain in the neck, right shoulder, lumbar spine, right hand, bilateral knees and feet and ankle pain. She describes her pain as 5/10 overall. DRO’s mother has been her fulltime carer since her accident in 2001. She assists DRO with domestic tasks including laundry, making the bed, dusting, gardening, shopping, vacuuming and some self-care, including donning socks and shoes.

62. Ms Olsen makes the following finding:

‘Given DRO’s reports of increased pain symptoms following the assessment, and the tasks her carer assists her with, the assessor is of the opinion that DRO would have difficulties being a foster carer independently, without the support and care of a fulltime carer for herself. Given that DRO’s carer assists with heavy domestic duties, the assessor is of the opinion that DRO can complete the role of a foster carer with ongoing assistance from a fulltime carer, bearing the heavier duties. It would be recommended that DRO continue with her daily exercise regime to help manage her ongoing pain symptoms.’

63. The Respondent submits that the occupational therapist’s report confirms that DRO has physical restrictions which impact upon her ability to perform all the duties of an authorised carer. We disagree. Ms Olsen finds that DRO is able to continue carrying out the role of a foster carer whilst also having assistance provided by a full time carer in relation to some activities of daily living.

Consideration and Findings

Allegations 1 and 2

64. It is uncontroversial that on or about 26 November 2013, DRO received a letter from the applicant stating, amongst other things, ‘We further request that you do not leave any children in the care of your mother. Your mother has found it difficult to care for other children placed with you in recent times …’ This letter arose after a situation where DRO was in Melbourne and her mother was caring for three children whom DRO had the daily care and responsibility. DRO’s mother returned the children to FACS as she was unable to care for them. It was predominantly this event which precipitated the written direction from the Respondent.

65. The letter goes on to state: ‘In future, if you are personally unable to maintain the care of any SCMSAC foster child in your care, we request that you contact your case worker and make arrangements with them …’.

66. DRO said in her evidence that she interpreted that letter to mean that she could not leave children in her mother’s care overnight. She said that this understanding is corroborated by a conversation she had with Ms McKelvie during an annual review which occurred approximately a year later. DRO discussed with Ms McKelvie whether it would be permissible to leave children with her mother for short periods of time, for example, if it was raining or if she had to go to the shop to get some milk. We have already found that it was reasonable for DRO to have held that understanding from late 2014.

67. In relation to the 15 February 2017 incident, we have found that the approval of DRO’s mother transporting child ‘D’ to the contact visit in Nowra is more likely to have occurred than not. We find in relation to this allegation, DRO is not in breach of failing to comply with a written direction of the Respondent.

68. We therefore find that allegations 1 and 2 are not sustained. They do not enable us to conclude that DRO’s authority as an authorised carer ought be cancelled.

Allegation 3

69. The Respondent submits that there is extensive documentary evidence to support that DRO has provided inaccurate, inconsistent and/or incomplete information to the Respondent on numerous occasions in relation to children in her care and her own personal circumstances. It was submitted by Ms Carter that this allegation is not being pressed, except in so far as DRO’s health and capacity to provide care.

70. In relation to that aspect, the Respondent acknowledges and relies upon the report of Ms Olsen’s finding that DRO, with the assistance of a fulltime carer, can carry out the role of a foster carer. We have given greater weight to the assessments of Dr Devlin, whose opinion is that DRO is fit to carry out the role of a carer from a general health and mental health point of view. We have taken into consideration the findings of Ms Olsen and accept the submissions made by DRO that there has been no finding to state that she is physically incapable of carrying out the role of a foster carer, albeit identifying that she requires some assistance from a carer with some activities of daily living. It follows that the correct and preferable decision is that the authority of DRO as an authorised carer must not be cancelled on this basis.

71. We find no evidence that would disentitle DRO to remain as an approved authorised carer. The Reviewable Decision of the Respondent must be set aside.

Proposed order should the Reviewable Decision be set aside

72. The Respondent’s submission set out, if the Tribunal is of the view that the correct and preferable decision is to allow DRO to remain as an approved authorised carer, a condition should be placed on that approval. At the conclusion of the hearing the parties agreed that if the Tribunal was minded set aside the Reviewable Decision the conditions should be as follows:

1. DRO should only be authorised to care for up to two children at any one time; and

2. DRO’s mother is to have no involvement in the care of, or in relation to the care of, children placed in the care of DRO.

73. We accept that these are reasonable conditions in the circumstances.

Orders

74. We make the following orders:

1. The decision made by the Respondent made on 14 December 2018 to cancel the authorisation of DRO as an authorised carer is set aside

2. It is declared that DRO is to remain as an authorised carer with the following conditions:

1. DRO is only authorised to care for up to two children at any one time;

2. DRO’s mother is to have no involvement in, or in relation to, the care of children with whom DRO has the daily care and responsibility as an authorised carer.

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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: 02 October 2019