DRY v Life Without Barriers

[2019] NSWCATAD 179

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DRY v Life Without Barriers [2019] NSWCATAD 179
Hearing dates:	20, 21, 29 March 2019 (Submissions received 26 April 2019)
Date of orders:	30 August 2019
Decision date:	30 August 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C A Mulvey, Senior Member E Hayes, General Member
Decision:	(1)   The decision of the Respondent made on 8 January 2019 to remove from DRY the responsibility for daily care and control of the First Child is affirmed. (2)   The decision of the Respondent made on 13 March 2019 to cancel DRY’s authorisation as an authorised carer is affirmed.
Catchwords:	ADMINISTRATIVE LAW – review under section 245 Children and Young Persons (Care and Protection) Act 1998 (NSW) – child protection – care and protection of children – restoration of child to the care of an authorised carer – least intrusive intervention in the life of the child or young person – accumulation of factors amounting to an "unacceptable risk" of harm to 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) Civil and Administrative Tribunal Rules 2014 (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 Johnson v Page [2007] Fam CA 1235 M v M [1988] HCA 68 Re Benji & Perry (2018) NSWSC 1750 The Department of Community Services v "Rachel Grant", "Tracy Reid", "Sharon Reid and "Frank Reid" [2010] CLN 1
Category:	Principal judgment
Parties:	DRY (Applicant) Life Without Barriers (Respondent)
Representation:	Solicitors: Applicant (Self Represented) Care Legal (Respondent)
File Number(s):	2019/00018649
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’). Life Without Barriers (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 ‘DRY’. Our reference to DRY’s partner as ZXT and to DRY’s friend as MNY is made for the same reason.

3. DRY had the responsibility for daily care and control of a 14 year old male child who is currently under the parental responsibility of the Minister for Family and Community Services (the First Child). The Respondent is, and was, responsible for the case management in relation to the First Child.

4. On 8 January 2019, the Respondent made a decision to remove from the Applicant the responsibility for daily care and control of the First Child (the First Decision).

5. From 2008 – 2016, DRY had the responsibility for daily care and control of a younger child (aged 4 years in 2008) who was also under the parental responsibility of the Minister for Family and Community Services (the Second Child). The Respondent removed the responsibility for the daily care and control of the Second Child from DRY in 2016. The Respondent is and was, also responsible for the case management in relation to the Second Child. For clarity, the application before us is not to consider a review of the Respondent’s decision to remove from DRY the responsibility of the daily care and control of the Second Child. However, the factual circumstances of DRY’s continued interaction with the Second Child is relevant to our decision.

6. On 13 March 2019, the Respondent notified DRY of its decision to cancel DRY’s authorisation as an authorised carer (the Second Decision).

7. The First and the Second Decisions are administratively reviewable decisions. DRY is seeking that the Tribunal set aside each of the First and Second Decisions and make an order that the First Child be restored to her care.

The Hearing

8. The matter was heard over 3 days, being 20, 21 and 29 March 2019. At the conclusion of the hearing the parties were ordered to file final written submissions; the last date for those to be received was 26 April 2019.

Relevant Legal Matters

9. 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),

…

(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,

…

(1B)   For the avoidance of doubt, subsection (1) (c) does not extend to any decision in relation to: 

(a)   the preparation of a permanency plan, or 

(b)   the enforcement of a permanency plan that has been embodied in, or approved by, an order or orders of the Children's Court.

…

(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.

…”

10. 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,

….

11. There was no dispute that an application concerning the suspension or cancellation of DRY’s authorisation in circumstances of the care relationship involving the Applicant, the First Child and the Respondent, would fall within the review jurisdiction of the Tribunal. Similarly, there was no dispute that an application concerning a decision to remove from DRY the responsibility for the daily care and control of the First Child would also fall within the review jurisdiction of the Tribunal.

The applicable legal framework

12. 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.”

13. 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. 

14. 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.

15. 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 (the NCAT Act).

16. 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.

17. When determining issues of, amongst other things, removal and restoration of a child in all decisions under the Care Act involving the paramount concern of safety, welfare and well-being of a child, the proper test to be applied is that of "unacceptable risk to the child": The Department of Community Services v "Rachel Grant", "Tracy Reid", "Sharon Reid and "Frank Reid" [2010] CLN 1 per Judge Marien at [61]. The appropriate test is whether there is an "unacceptable risk" of harm to the child: see M v M [1988] HCA 68 at [25].

18. 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, as discussed above: see Johnson v Page [2007] Fam CA 1235.

19. When considering the decision to remove from DRY the daily responsibility and care of the First Child, or to restore him to her responsibility, the Tribunal must give particular consideration to the principle in s 9(2)(c) of the Care Act (see above). 

20. The principle in s 9(2)(c) of the Care Act is:

"In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child's or young person's development."

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

22. 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.’

23. 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.

24. 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.

25. A copy of the relevant code of conduct was tendered into evidence. DRY acknowledged that she had received the Code of Conduct. The code of conduct provides, inter alia:

‘Follow the behaviour management policy of the designated agency. This will include ways to encourage positive behaviour in children and young people and appropriate actions to respond to challenging behaviours.

Only use behaviour management practices as described in the behaviour management policy or approved by the designated agency. The use of any physical punishment or coercion, immobilisation, force-feeding, deprivation of food or any punishment intended to humiliate or frighten a child or young person is not permitted.

Report any incident where physical restraint has been used following the protocol for critical incident/event reporting within the designated agency.’

26. The code of conduct also describes what authorised carers can expect. This includes being respected for their opinion and being consulted on decisions about the care of the child or young person in their care and support and training on ways to encourage positive behaviour in children and how to respond appropriately to challenging behaviours.

Issue

27. DRY’s original application filed 17 January 2019 seeks that the Tribunal review the First Decision to remove from DRY the responsibility for the daily care and control of the First Child.

28. At the commencement of the hearing DRY made it clear that her application was to also include a request that the Tribunal review the Second Decision made by the Respondent to cancel her authorisation as an authorised carer. Ms Smith, the solicitor acting on behalf of the Respondent did not object to the Tribunal considering the Second Decision in this hearing. We were satisfied, having heard the oral application made by DRY, that both matters should be determined by us. In doing so we are able to facilitate the just, quick and cheap resolution of the real issues in the proceedings in accordance with the guiding principle as set out in section 36 of the NCAT Act.

29. In this case the following issues must be considered:

1. whether the First Decision made on 8 January 2019 to remove from DRY the responsibility for daily care and control of the First Child is the correct and preferable decision having regard to any relevant factual material and any applicable written or unwritten law.

2. whether the Second Decision made on 13 March 2019 to cancel DRY’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.

30. Ms Smith submitted that the Tribunal should consider the review of the Second Decision before it considered the review of the First Decision. It follows that only if DRY is successful in having the Second Decision set aside will the review of the First Decision be necessary. We accept that submission.

Evidence

31. The applicants’ evidence consisted of:

• DRY’s application filed 7 January 2019 (A1).

• DRY’s bundle of documents filed 18 March 2019 (A2).

• Statement of a work colleague of DRY undated (A3).

• Statement of DRY’s sibling dated 13 February 2019 (A4).

• Statement of a second sibling of DRY undated (A5).

• Statement of a carer of the child dated 10 February 2019 (A6).

• Statement of ZXT dated 2 February 2019 (A7).

• Report of Medical Practitioner Dr Jozwik dated 4 February 2019 (A8).

• Statement of a friend of DRY dated 13 February 2019 (A9).

• Bundle of documents - Working With Children Clearance Check Application (ZXT) (A10).

• Further statement of DRY dated 29 March 2019 (A11).

• Bundle of documents filed 29 March 2019 (A12).

32. The Respondent’s evidence included:

• Section 58 bundle of documents filed 8 March 2019 (R1).

• Additional documents filed by the Respondent 20 March 2019 (R2).

• Additional documents relied on by the Respondent filed 18 March 2019 (R3).

• Email attaching Skin Integrity Chart of the child filed 21 March 2019 (R4).

• Positive Behaviour Support Plan of the child of November 2017 (R5).

• Documents produced under Summons Dr Jozwik (R6).

• Documents produced under Summons by the child’s school (R7).

• Documents produced under Summons by Family and Community Services (R8).

• Documents produced under Summons by the child’s school (R9).

• Transcript of interview of ZXT (R10).

• Documents produced under Summons by the NSW Police Force (R11).

• Respite attendances of the child filed 29 March 2019 (R12).

• 21 March 2019 medical appointment record of the child (R13).

• 22 March 2019 incident record form concerning the child (R14).

• Letter from Life Without Barriers to the NSW Police Force dated 25 March 2019 (R15).

• Email Life Without Barriers 27 March 2019 (R16).

• Respite schedule concerning the child (R17).

33. DRY and the Respondent each filed lengthy written submissions.

The Reasons provided by the Respondent for the First and Second Decisions

34. In its letter to DRY dated 8 January 2019, the Respondent sets out the reasons justifying the First Decision to remove from DRY the responsibility for the daily care and control of the First Child (R1 page 445):

1. Concerns regarding the First Child’s hygiene, vocabulary and development;

2. inconsistent working relationship with practitioners and stakeholders;

3. associated risks concerning ZXT;

4. managing the First Child’s needs and challenging behaviours.

35. In its letter to DRY of 13 March 2019, the Respondent sets out the following reasons justifying the Second Decision cancellation of the authorisation of DRY as an authorised carer (R3 page 26):

1. the reasons as set out in the First Decision;

2. the determination of parenting capacity assessment by Ms Bridget Gurton (March 2018) which found that DRY could no longer continue to meet the First Child’s needs without significant and increasing support;

3. the care of the Second Child including punitive and potentially emotionally abusive behaviours towards the Second Child and impacts of trauma for her.

The evidence and submissions of DRY

36. DRY was not legally represented. At the commencement of the hearing, we set out the Tribunal’s process and the relevant matters she must address to be successful in her application. DRY gave evidence in a hybrid way. She filed a combined written statement and submissions. DRY also gave oral evidence. She said that she arrived in Australia from India in 2002. In 2008, DRY was granted authority by the Respondent to be an authorised carer to accept the responsibility for the daily care and control of children. Soon after the authority was granted, DRY had the responsibility for the daily care and control of the Second Child who had special needs. In late 2009, the First Child who was then aged 4 years also came into DRY’s care. It is uncontroversial that the First Child has been diagnosed with Autism Spectrum Disorder and like the Second Child, he also has special needs. DRY’s friend, MNY, resided with DRY and the two children for a period at DRY’s property in South West Sydney. MNY assisted DRY in caring for the children along with other agencies from time to time.

37. DRY said that as a significant consequence of the First Child’s diagnosis of Autism Spectrum Disorder he prefers structure and repetition as well as requiring preparation when engaging within the community. He has severe communication difficulties which means that he at times finds it hard to understand changes and becomes frustrated when unable to express his feelings. It was not disputed that DRY resides on a large rural property which enabled her to provide interaction between the two children and a number of pets. DRY said that she moved to this larger property in order to provide a more calming and enriching environment for the two children.

38. DRY provided the following response to reasons given by the Respondent in relation to the two decisions under review.

Concerns regarding the First Child’s hygiene, vocabulary and development and interactions with the First Child and his school

39. The First Child attends a school in South West Sydney which specialises in catering for the needs of children with moderate to severe intellectual disabilities.

40. DRY said she has not had a good relationship with the school in which the First Child is currently enrolled. She said that she has not been fully supported by the Respondent, particularly in relation to her wish to change the First Child’s enrolment. In the Respondent’s reasons for removing from DRY the daily care and responsibility of the First Child, it says that DRY has, amongst other things, not properly or fully engaged with the school. In response DRY said that she primarily relied on telephone conversations and a communication book in relation to any problems that have arisen concerning the First Child. She assumed that if there were any other difficulties, a person from the school would have called a meeting to discuss any matter with her. DRY said she felt unwelcome at the school and believed it may have related to her experience as a teacher. DRY refers in her evidence to one incident with regard to bell times at the child’s school.

41. In oral evidence, DRY said that the First Child had improved at school to the extent that he had recently received an award. A copy of the High School Outstanding Progress Medallion awarded to the First Child was in evidence (A12). She said she had always been supportive of the First Child’s schooling and general well-being. However, she asserts she has been unduely criticised by the Respondent in this regard. During cross-examination, DRY conceded that she did not attend the award ceremony. This is corroborated by the Respondent in a report from the child’s school authored by the class teacher and supervisor dated 11 September 2018 (R7, page 112). The report records that DRY: ‘has shown little interest in the First Child’s schooling. In the last few years, DRY has not attended any school functions and has not taken part in the collaboration and development of the First Child’s individual education plan, which occurs annually.’

42. The same report goes on to specify a number of concerns raised about DRY’s care for the First Child, including his clothes often being dirty on arriving at school, he wears the same clothes each day, his lunch box has contained ‘spoiled food’, he wears clothes too small, he has a strong smell of urine and at times possible horse or animal faeces and he rarely has new school supplies. Communication with DRY has been difficult prior to September 2018, and at times aggressive where telephone conversations have resulted in DRY shouting.

43. In her oral evidence DRY accepted in at least one telephone conversation with the school, relating to bell times, she become quite agitated. She provided the following explanation:

‘… I might have become agitated, but screaming and shouting is exaggerated. For example, I was called at 2.35 p.m. The bell was at 2.55 p.m. [person’s name removed] called and screamed at me. I questioned the bell times and I was referred to the Principal. I think they were defensive about me. I asked about the bell times and out of curiosity I wanted clarification about the bell times. I did not scream at the staff.’

44. The report contains further notations as to the school having ‘great difficulty in obtaining necessary documentation for the First Child each year, despite repeated requests, which has resulted in the school contacting the case worker to get the documentation completed’. Notes were left in the First Child’s bag for weeks without being checked, the First Child’s learning in speech therapy sessions at school and his progress using augmented communication systems not being transferred into the home with the support of home therapy sessions. The report records an incident that DRY become extremely agitated when the school contacted her to collect the First Child when he had stripped completely naked at the time in which a taxi is to transport him home.

45. Initially in cross-examination DRY denied any concerns having been raised with her by the school. DRY’s evidence in this regard is contradictory to documents produced by the First Child’s school under a subpoena (R7 and R9). A student report dated 11 September 2018 addressed to the Respondent sets out many of the matters referred to above (R7, page 112, and R9, page 3). The content of the report is recorded in a handwritten note entitled ‘DRY concerns’ (R9, page 3). The note records verbal abuse by DRY of staff, physical neglect of the child (clothing, lunch box, bag, haircut and fingernails), an unwillingness to engage with therapy services, education, notes being left in the bag for weeks without being checked and bizarre things being raised by DRY. These handwritten notes appeared to support the written document which is found at (R7, page 112).

46. DRY denied that she has sent the First Child to school in ill-fitting, stained, faeces and urine smelling clothes. She refers to the statement provided by the bus assistant (A6) where that person says ‘The First Child always leave [sic] home clean and showered. She said that his clothes may have been on back to front or inside out. In these instances she said that he had put them on himself and often would not let them be put on the right way.’ DRY said that in 2013 to 2014 the First Child went to day care before school and it is possible he soiled himself due to anxiety and separation. However, once school transport was arranged there was ‘no chance of dirty, dishevelled clothes’. DRY denies that she was making inconsistent requests and bizarre statements regarding school bell times and the First Child’s clothing.

47. DRY denied the First Child’s lunchbox had mould on it, and, on his clothes. She tendered a newspaper article referring to a mould problem within the school (Exhibit A12). We are unable to make any positive finding in relation to the allegations concerning mould.

48. Overall, we find the written evidence of the school teacher and supervisor compelling. Whilst we have no doubt that DRY has a genuine concern for the care, safety and well-being of the First Child, we prefer and accept the independent evidence of the school. Until DRY was cross-examined about the matters set out above, she denied in her oral evidence any concerns having been raised with her by the school. The contents of the documents relied upon by the Respondent are from an independent source, and, following cross-examination have been to some degree accepted by DRY in cross-examination. In our view this evidence is more persuasive than DRY’s version of events.

Allegations that the DRY was using contact visits to gather evidence of abuse of him

49. DRY denied allegations made by the Respondent that following removal of the First Child she was using contact visits to gather evidence of abuse of him. She said she was initially concerned with bite marks during contact visits and contacted the police. She said she was initially concerned with bite marks on him and which she noticed during contact visits. She then contacted the police about this which has been the subject of some criticism of the Respondent during the hearing.

50. The cross-examination of DRY explored her reporting of bite marks on the First Child to the NSW Police Force. The Respondent criticised the actions of DRY in notifying the police of this event and, specifically, given that the police attended the residence of the First Child at 11.00p.m. and waking him up to investigate the matter. We find that little criticism can be raised against DRY concerning the time the police investigated the complaint as it was entirely out of her control. However, we find that DRY may have overreacted in reporting this event to the police rather than dealing with the matter directly with the Respondent. We place some weight on the submissions made by the Respondent in relation to this incident.

51. We find the recurrent complaints made by DRY concerning the First Child and the taking of photographs of him during contact visits, is one of the cumulative factors which reflect the level, or lack of, DRY’s insight when considering the safety, welfare and well-being of children.

Allegations raised concerning an interview of the Second Child following the commencement of the hearing and reports made about the First Child after he was removed from the care of DRY

52. On 29 March 2019, the Tribunal convened the part-heard hearing. DRY sought to tender a statement of the Second Child and a USB of an interview that was conducted with the Second Child during the period of the hearing taking place. After some discussion and explanation by the Tribunal as to how that evidence may be dealt with, DRY withdrew her request to tender this evidence. Ms Smith cross-examined DRY about the interview of the Second Child. In doing so she referred DRY to a letter from the Respondent dated 5 March 2019 (R2, page 324). That letter relates to an investigation that was being undertaken by the Respondent in response to allegations of physical assault, neglect and ill-treatment concerning the Second Child. The letter sets out:

‘Legislation governing this investigation requires that your privacy and that of other people involved in this investigation is protected and accordingly you are requested not to discuss the allegations with anyone other than myself and your professional support. You are specifically requested not to discuss the matter with any child currently or previously in your care.’

53. DRY said that she had received this letter after 5 March 2019 and also in the material served concerning this application. DRY said that she did not read the entire letter, only the first section. However, she agreed that the investigation concerning the Second Child was an investigation that would be included within the terms specified above. When asked why she did not read the entire letter, she said it was upsetting. Despite the contents of the letter, DRY agreed that she conducted an interview of the Second Child in March 2019 despite the warning not to do so. DRY agreed that she raised matters which are the subject of the investigation with the Second Child during that interview. It was put to DRY that she may have jeopardised the investigation concerning the Second Child by conducting the interview, to which she replied, ‘I do not think so’. When asked what impact undertaking the interview with the Second Child may have had on her, DRY said ‘The impact is she is happy with us and cares about her brother. It has not affected her.’

54. It is evidently clear from DRY’s response that she has little, if any, insight into the potential effect the interview may have had on the Second Child. Further, she failed to grapple with the proposition that the interview could have jeopardised the investigation itself. DRY’s lack of insight is a material factor we have taken into consideration in determining this matter and the effect her conduct may have on the safety, welfare, and well-being of the children.

Inconsistent working relationships with practitioners and stakeholders

55. DRY said she has always strived to foster the best working relationship with all stakeholders in a professional manner. She makes allegations against some youth workers who have been unable to manage the First Child’s challenging behaviours. As such, DRY said she should be able to choose a therapist or worker “..that works for the First Child…”. DRY defended her decision to stop administering medication to the First Child against medical advice because of her observations as to the effect the medication was having on him. She claims she received no support from the Respondent in what she describes as a difficult process. DRY refutes the criticism made of her in these circumstances.

56. DRY denies an allegation that a family friend was not properly accredited to be a co-carer for the First Child. She also lays some responsibility on the Respondent in not supporting her and communicating effectively when there are problems.

57. We find DRY has a difficult and strained relationship with the Respondent and the First Child’s school. We are unable to make positive findings in relation to other support workers or agencies. The relationship in our view has become adversarial and it is not complementary to an ongoing workable arrangement for the placement of children in her care by the Respondent.

Allegations concerning the Second Child and cutting of her hair

58. DRY was asked questions about her cutting the Second Child’s hair. She admitted, after some lengthy cross-examination, that she had cut the Second Child’s hair against her will. She denied that she cut her hair so that she would be less attractive to ZXT. When asked how she thought that may have made the Second Child feel, she responded ‘It is a learning curve. It was the first time I had looked after a teenager. I was willing to make amends.’

59. DRY also admitted to arguing with the Second Child towards the end of her placement. In one of the disagreements, it is alleged that DRY threw a cup of hot tea at the Second Child. In her evidence DRY said “I did do this. I threw it at the wall in a fit of temper. I am remorseful. I did not throw it at the Second Child”. The incident corresponds with a report made by the Second Child during a case review in April 2017.

60. We find that the actions of DRY in throwing a cup of hot tea, and the decision to cut the Second Child’s hair against her will, shows a complete disregard for the safety, welfare, and well-being of the Second Child. We find that the cutting of the Second Childs hair against her will amounts to a form of punishment in breach of Regulation 41(1)(i) and (iii).

Allegations concerning the presence of ZXT within DRY’s home and not having had a WWCCC confirmed

61. It is uncontroversial that ZXT applied for a WWCCC in 2015. It was not in contest that he received a WWCCC approximately 2 years after he applied (circa. 2017/2018). DRY was cross-examined on the issue of ZXT being in the home without having a WWCCC. DRY said that she had contacted a person by the name of Annie who was employed by the Respondent. Annie apparently told DRY that she should not worry, and she should advise the Respondent when the working with children clearance check was granted to ZXT. Annie was not called to give evidence. DRY said that she does not remember leaving the First Child alone with ZXT prior to him obtaining his working with children check clearance. Ultimately, the evidence was that ZXT has never been approved as a person to provide care for the First Child or the Second Child. To allow an unapproved person to care for a child unsupervised is in breach of the Code of Conduct (Exhibit R3 pages 55 – 57).

62. DRY was cross-examined as to when ZXT moved into her home. A Step by Step 2016 Carer Review tool records ZXT moving into DRY’s home in November 2015. It records a WWCCC pending at that time (R1, page 307). In cross-examination DRY said that ZXT moved into her home in January 2016 without having a WWCCC. In a file note of the Respondent dated 12 October 2016 when DRY was asked whether ZXT had obtained his WWCCC, the following is recorded: ‘She advised that she does not understand why it is taking so long and stated that if it comes back as declined, she understands that either the First Child or ZXT will have to move. CM asked what she would do in that situation. Carer advised that she would choose ZXT. She said that all these years she has been looking out for the First Child and the other young person that was in her care but she wants to think for herself now. She said that ZXT is a good man and she wants to be with him.’ In cross-examination DRY said that that record of the conversation is incorrect and that her priority is the First Child. If she had to choose between the First Child and ZXT she would choose to remain living with the First Child and not ZXT. DRY did not dispute that the WWCCC remained outstanding. We find that ZXT moved into the home of DRY without a WWCCC.

63. DRY concedes that police records of note complaints made by ZXT’s former wife about events which involve allegations domestic violence. It is uncontroversial Family and Community Services became involved concerning that domestic relationship, including the effect these events may have had on ZXT’s children. DRY says despite this, her relationship with ZXT had been very supportive, particularly with regard to these proceedings and the events that have led up to it. In relation to the delay in ZXT obtaining a working with children check clearance, DRY submits that it would appear the delays were due to deficiencies in the government agencies rather than any lack of cooperation by ZXT himself. She said ZXT is not a primary carer for the Second Child. The carers role belonged to DRY herself, a friend of hers and her sister. However, DRY’s evidence does not take into account the times, limited as they may be, when ZXT was providing some care for the First Child and possibly the Second Child.

64. DRY was asked questions as to what enquiries she made to satisfy herself that ZXT was not a risk to children. She was asked whether she had reviewed the documents that ZXT had sought to tender, namely, the risk assessment undertaking by the Children’s Guardian. She replied: ‘I did not bother to read it no I have not’.

65. Taking into consideration of the above, we find DRY did not inform herself of ZXT’s background that was being investigated by the Children’s Guardian in circumstances where ZXT was residing in her home with the First and Second Children. This is another cumulative factor pertaining to DRY’s limited insight into her responsibilities concerning the safety, welfare and well-being of children.

66. DRY in her written submissions states that she has been criticised for failing to advise the Respondent and other agencies about her involvement with ZXT. She says at the time that she met ZXT she was unsure of the relationship status as he had only been visiting her at the home to assist with gardening. At this time DRY said ‘I did not believe it was any of Life Without Barriers’ business as to whether I was exploring other relationships. In hindsight I believe that possibly I could have been more open about the relationship, but I did feel very much under siege at the time.’ DRY’s evidence, in our view, adds further weight to a finding of her lack of insight concerning how a relationship with ZXT, may have on the safety, welfare and well-being of children under her care.

Allegations of unauthorised carers looking after the First and Second Children

67. Cross-examination of DRY explored whether she was aware of her obligations as set out in the Code of Conduct (R3, page 55 and onwards). She said that she signed the Code on or about 4 September 2008. The following part of the Code was put to DRY:

‘Not discharge the child or young person into the care of any other person, other than a staff member of the designated agency having supervisory responsibility or a person with parental responsibility for the child or young person without the written approval of the Principal Officer or designated agency or by Court order.’

68. DRY said that she was under the impression that if persons had obtained checks then the First Child and/or the Second Child could be cared for by family members. She said she was unaware that the carer had to be an ‘authorised carer’. She said that the Respondent was aware that her friend MNY and sisters, from time to time, looked after The First Child and no objection was made in relation to that arrangement. The Respondent did not go into evidence on this point and as such we make no positive finding.

Criticisms of DRY’s care of the First Child

69. DRY submits that most of the Respondent’s complaints which are directed at her relate to the Placement Assessment Report dated 23 March 2018 completed by Ms Bridget Gurton (R1, page 356). DRY said in her view that most of the criticism is aimed at her perceived failure to manage the First Child’s toileting behaviours. The report of Ms Gurton focuses on much more than what is submitted by DRY and is set out below. DRY refers to two specific incidents. The first occurring during an assessment when Ms Gurton attended her home to complete her report. We have addressed these allegations below.

Evidence relied upon by the Respondent and the report of Ms Bridget Gurton, Forensic Psychologist

70. Ms Bridget Gurton is the author of a report dated 23 March 2018 (Exhibit R1, page 356). She gave oral evidence and was cross-examined. Ms Gurton was engaged by the Respondent to conduct an independent placement assessment of DRY. The report was to specifically address concerns around the capacity of DRY to provide care for the First Child. Ms Gurton found the following:

1. DRY was meeting the First Child’s care needs at a ‘good enough’ level on a day to day basis and was a relative strength for the placement;

2. from 2011, the Respondent’s file notes indicate that DRY reported difficulties in managing the First Child’s behaviour, with the First Child showing an increasing level of aggression since 2011. Ms Gurton found that DRY was likely to minimise such behaviours and the risk of the First Child seriously harming DRY or other persons within the home is likely to increase as the First Child matures and becomes stronger;

3. there was no doubt that DRY loves the First Child and is willing to strongly advocate for him. However, the expert found it was equally clear that she at times struggled to contain her own emotions;

4. DRY’s limited engagement with the school environment relating to the First Child was concerning and, despite attempts by both the school and the Respondent to address this, the situation had not significantly changed;

5. DRY had experienced difficulty in prioritising the First Child’s medical appointments and following medical advice with regard to his medications, dental appointments and blood tests. She found that the First Child’s medical needs had been inconsistently met since at least 2015;

6. DRY had not consistently been able to meet the First Child’s therapeutic needs and had not engaged with services in a meaningful or consistent manner to allow the First Child to develop skills during his critical early years.

71. Ms Gurton went on in her report to express concern about the long term viability of the placement of the First Child, particularly, that the placement was highly supported and yet, there were times when DRY continued to struggle with care of the First Child. Ms Gurton sets out concerns relating to DRY’s capacity to meet the First Child’s education, medical, therapeutic and behavioural needs, as well as engage with professionals and support services. Ms Gurton proposed that an alternative placement in a group home for the First Child should be secured as a matter of priority. Ms Gurton also recommended that ZXT not be approved as an authorised carer, and that the two persons in the home who had been providing some care for the First Child (one of DRY’s sisters and a friend MNY) be fully assessed.

72. In relation to the Second Child, Ms Gurton found that there were significant concerns about DRY’s care of her from what was observed in the Second Child’s records. She records that the placement of the Second Child was under increasing stress from 2011. At times DRY was engaging in punitive and potentially emotionally abusive behaviour towards the Second Child in the lead up to the placement breakdown in September 2016. Ms Gurton opined that it appeared DRY had not appreciated the impacts of trauma for the Second Child and may have acted in a manner that exacerbated this trauma. Ms Gurton’s view is similar to our finding, particularly as it relates to DRY cutting the Second Child’s hair, throwing a cup of hot tea in a temper and conducting an interview of her.

73. Overall, Ms Gurton found that DRY, from time to time, experienced difficulty in caring for two high needs young people from 2014 onwards. In her view there was an escalating pattern of concerns in the placement, including a decline in the physical conditions and hygiene of the home, lack of attention to the children’s emotional and psychological needs, academic needs, medical needs and lack of engagement with the Respondent’s support.

74. DRY said that the placement assessment includes lies, false allegations, inaccurate information and misinterpretation of data to suit Life Without Barriers’ recommendation that as of 2016 the First Child should be placed into a group home. DRY sought to discredit Ms Gurton as not being independent because her report was funded by the Respondent. She said the reason the Respondent commissioned the report was to discredit DRY, and in doing so, ensure the placement of the First Child into one its group homes for sole financial benefit of the Respondent. We reject DRY’s submission and evidence in this regard. We find the report was commissioned by the Respondent to independently assess the suitability of DRY as an authorised carer and whether the First Child was suitably placed and cared for.

75. A particular aspect of Ms Gurton’s report related to a session with DRY in her home, where, DRY left the First Child sitting on the toilet for at least an hour. Despite prompting by Ms Gurton, DRY did not check on, nor attend to the First Child. Ms Gurton said that she knew at least an hour of time elapsed whilst the child was left on the toilet as she was timing the interview. Ms Gurton concludes that this event was but one which led her to conclude that the First Child was not suitably placed with DRY.

76. In reply, DRY explained the First Child liked to spend time on the toilet and she does not like to rush him.

77. DRY cross-examined Ms Gurton. Overall, the cross-examination did not result in Ms Gurton’s evidence being less credible or unreliable.

78. The Respondent relies on the expert evidence of Ms Gurton and notes that DRY did not tender any evidence to challenge Ms Gurton’s opinion. In circumstances where the evidence is uncontroverted and appears to be rational and comprehensive, the Respondent submitted that the Tribunal should accept such guidance as the expert gives (see Re Benji & Perry (2018) NSWSC 1750, [75]). The Respondent further submits that Ms Gurton holds significant concern about the long term viability of the First Child’s placement with DRY and she did not see it as a viable placement for meeting all the First Child’s long-term needs. Ms Gurton recommended an alternative placement into a group home should be identified and secured as a matter of priority.

79. We find that Ms Gurton’s evidence was credible and she is a reliable expert witness. We have placed significant weight on her opinion in making our decision. We accept her evidence and the findings in her report.

The Evidence of Melissa Rawlings

80. Ms Melissa Rawlings , Case Manager, has been employed by the Respondent since December 2016, initially as a Disability Support Worker. In July/August 2018, Ms Rawlings was the Support Coordinator assisting clients managed by the Respondent who have disabilities. She holds a Bachelor of Social Science, a Certificate IV in Community Services and Diploma of Community Services Case Management. In August 2018, as part of her role as the Out of Home Care Manager, Ms Rawlings provided case support to DRY, which included home visits, school support, medical visits and liaising with service providers.

81. Ms Rawlings said that in August 2018 she assessed the National Disability Insurance Scheme (NDIS) funding available to the First Child. Her assessment revealed that this funding would have been prematurely exhausted before the next NDIS planning meeting. Ms Rawlings denied that she tried to reduce the First Child’s NDIS funding for any other motive other than trying to ensure that the First Child had supports in place prior to the funding being exhausted before it was next to be reviewed.

82. At the time Ms Rawlings became the Case Manager for the First Child he had in place the following supports:

1. respite provided by Northcott Respite Services one weekend each month, as well as occasional stay;

2. mentoring provided by ICCARE (2 on 1 mentoring) - at least 3 Saturdays per month, with each mentoring session being 6 hours in duration;

3. speech therapy which was provided during school hours on a fortnightly basis (45 minute sessions);

4. NDIS support coordination by the Respondent;

5. behaviour support under FACS funding, including the development of a behaviour support plan; and

6. paediatrician appointments paid for by DRY and reimbursed by Medicare.

83. Ms Rawlings said she had difficulty supporting DRY and arranging home visits due to DRY’s work commitments. Ms Rawlings could only attend at DRY’s home after 4.00 p.m. after she had finished her employment as a school teacher.

84. Ms Rawlings said she observed the bond and relationship between DRY and the First Child during her home visits in the role of Case Manager. However, during some home visits she had concerns about the care provided to the child by DRY. She referred to an incident the First Child had soiled himself. DRY, rather than attending to this immediately, locked the First Child outside of the home and provided him with something to eat. DRY said she did this because the home visit was almost over and to clean the First Child would have taken a considerable amount of time and she wanted to finish the interview first. Ms Rawlings said she observed this event causing the First Child some distress. On another home visit at Christmas time, Ms Rawlings said she brought 3 Christmas presents for the First Child. DRY would only permit him to open 1 which apparently caused him to bite his fingers, slap and vocalise.

85. In cross-examination Ms Rawlings was asked if she attended a meeting at the school of the First Child on 11 September 2018 concerning his behaviour. She said it was not a condition of the meeting that DRY could not attend the school at the same time. DRY asked Ms Rawlings whether 2018 was a good year for the child in relation to his schooling. Ms Rawlings said it was hard to say, that she had only started working as a Support Worker in August 2018.

86. Ms Rawlings’ evidence was not materially disturbed by any questions put to her in cross-examination. We find that she was a credible and reliable witness and we have placed weight upon the observations made during the home visit relating to the First Child soiling himself and being locked outside of the home whilst the Applicant completed the home visit. This incident, and the decision making of DRY, is another cumulative factor evidencing her limited insight concerning the safety, welfare and well-being of children.

Evidence of ZXT

87. In evidence in chief, ZXT said he met DRY on an online Christian dating site in July 2015. He said they met face to face for the first time on the weekend of 19 to 20 September 2015. ZXT was unable to account for the Helpline report of 13 September 2015, where he reportedly had been seen in DRY’s home with the First and Second Child. He said that it was quite possible that he may have been in the home prior to 19 to 20 September 2015. Despite being able to recall exactly when he moved into DRY’s house, ZXT said that they had developed a romantic relationship around Christmas 2015. He believed that he formally moved into DRY’s house between Christmas 2015 and New Year 2016. Prior to moving in to DRY’s home ZXT said that he had stayed overnight more than a couple of times, not more than five. In re-examination by DRY he said that he had stayed overnight as he had to work at Warwick Farm at 2.30 a.m. on the next morning. He said he woke up at about 1.30 a.m. and went to work. Apart from these occasions he had not stayed overnight before he moved into DRY’s home during the Christmas of 2015.

88. ZXT said he watched the First Child when DRY has been indisposed, such as when she showers. ZXT paid $300 per fortnight to DRY as board. If a bar was imposed on his WWCCC he said he would move out of the house and end his relationship with DRY.

89. It was uncontroversial that on 20 March 2019 the Second Child attended the home of DRY and ZXT and was interviewed by DRY. When asked in cross-examination about how the interview came to be, ZXT said that he and the applicant had prayed for the Second Child and ‘by chance’ the next day the Second Child made contact with them.

90. DRY in her submissions/statement said the reason that ZXT and the Second Child were not to be alone was ‘to protect both individuals early in my relationship now the expectations are normal as trust and guidelines were being established.’

91. Ms Smith asked ZXT a number of questions with regard to his recollection concerning an Apprehended Violence Order (AVO) that was made against him in 2012 following an incident with his ex-wife. He said he did not believe there was ever an AVO in place and could not recall attending Court or being served with an AVO.

92. ZXT was asked questions as to the risk assessment conducted as part of his WWCCC application and specifically relating to an offence of ‘stalk and intimidate’ in March 2012 relating to the AVO.

93. Allegations of sexual misconduct with the Second Child were put to ZXT, which he denied. We make no positive finding in this regard. However, ZXT agreed with Ms Smith that DRY would not let him be alone with the Second Child. ZXT said he did not care for the First Child on his own, but admitted to watching the First Child whilst he played outside and DRY may have been doing other things such as gardening from time to time.

94. During re-examination by DRY, ZXT said he would ensure that the First Child did not hurt himself and provided ‘firm guidance’ in terms of preventing the First Child from being hit by a car, engaging him with puzzles, playing with balls and the dog, and, helping him on his iPad. DRY referred to ZXT as being an ‘asset’ in the home in terms of the support he provided for the First Child. In the transcript of interview with an investigator referred to by Ms Gurton (R10) ZXT admits that he had cared for the First Child, with DRY’s sisters, whilst DRY was in hospital.

95. A copy of the transcript of the interview of ZXT is found at (Exhibit R10). When asked questions about this interview by Ms Smith, ZXT said the interview in his mind was a good interview and the Tribunal should take it into consideration.

96. ZXT was asked questions concerning whether he could have been at the premises of DRY in or around 13 September 2015. In a FACS report there is a comment about him being in the home alone with the First and Second Child in the living room. ZXT said he cannot be sure if he was in the home before 19 September 2015. In answer to a question whether it was possible he had been in the home before 13 September 2015 he replied, ‘Can’t answer’. We are unable to make a positive finding in this regard. However, we suspect that ZXT may have been at the home as alleged given his response ‘Can’t answer’. If he were not, he would have replied in the negative.

97. Based upon the submissions of DRY, her evidence, and the evidence of ZXT, we find on the balance of probabilities, ZXT was, to a limited extent, providing some care to the First Child. The care was provided during a period from when he was first visiting the home up until the time the First Child was removed from DRY having the responsibility for his daily care. This would have included a period when ZXT did not have a WWCCC.

The Tribunals consideration

98. Over the course of these proceedings and leading up to the de-authorisation of DRY having the responsibility for the daily care of children in out of home care, there have been many allegations made against DRY. Our findings in relation to the main allegations are set out above. Overall, we find that DRY lacks insight into her own decision making and behaviours so as to ensure that the safety, welfare and well-being of children in her care is held paramount.

99. We are satisfied that DRY has great love and affection for the First Child and the Second Child. We find that DRY has attempted her best in caring for two children with challenging behaviours and high needs. However, consideration must be had concerning her lack of participation in the education and schooling requirements of the First Child and the matters which are set out in the report of Ms Gurton emphasising DRY’s lack of insight into the children’s safety, welfare and well-being. These are all matters which do not assist DRY in the Tribunal making a favourable finding concerning her application. In coming to our decision, we have placed considerable weight on the report of Ms Gurton, the independent reports of the teacher and supervisor at the school of the First Child, and, DRY’s punishment of the Second Child in circumstances where her background involves significant trauma. Unfortunately, despite the best intentions of DRY, we are not satisfied that she is a suitable person to remain as an authorised carer. Further, DRY has failed to comply with directions of the Respondent, particularly with regard to having no contact with the Second Child whilst an investigation was being carried out. By her own admission, DRY and ZXT interviewed the Second Child despite being instructed otherwise. DRY is in breach of Regulation 41, which is but one of the accumulative factors, which has led us to the conclusion that the Second Decision be affirmed. The Second Decision is the correct and preferable decision having regard to all of the relevant factual material and the applicable written and unwritten law referred to above.

100. Given our finding in relation to the Second Decision, the need to make a finding concerning the First Decision is otiose. However, for completeness, we affirm the First Decision of the Respondent for similar reasons that relate to our findings concerning the Second Decision . We also find that there is an "unacceptable risk" of harm to the First Child having considered the accumulation of factors which are set out above. Further, we find pursuant to section 9(2)(c) of the Care Act that the least intrusive intervention in the life of the First Child and his family that is consistent with the paramount concern to protect the First Child from harm and promote his development is to affirm the First Decision.

Orders

101. We make the following orders:

1. The decision of the Respondent made on 8 January 2019 to remove from DRY the responsibility for daily care and control of the First Child is affirmed.

1. The decision of the Respondent made on 13 March 2019 to cancel DRY’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

Decision last updated: 30 August 2019