DRZ v Barnardos Australia

[2020] NSWCATAD 318

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

DRZ v Barnardos Australia [2020] NSWCATAD 318

Hearing dates:

On the papers

Date of orders:

17 December 2020

Decision date:

17 December 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Higgins, Senior Member
Prof J Goodman-Delahunty, General Member

Decision:

(1) A hearing is dispensed with pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW).

(2)   The decision of the respondent to cancel the applicant’s authorisation is affirmed.

(3)   The decision of the respondent to remove the Child from the applicant’s care is affirmed.

Catchwords:

ADMINISTRATIVE LAW – review of decision to cancel authorisation as a carer and decision to remove the foster child from the day-to-day care of the carer – whether carer no longer suitable to be an authorised carer - failing to notify the agency of being approached by police of a very serious risk of harm incident and then maintaining a relationship with the person who was a person of interest in that incident

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Adoption Act 2000 (NSW)

Adoption Regulation 2015 (NSW)

Children and Young Persons (Care and Protection) Act 1998 (NSW)

Children and Young Persons (Care and Protection) Regulation 2012 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Cases Cited:

Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409

Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127

McBride v Walton, NSW Court of Appeal. Unreported, 15 July 1994

Texts Cited:

None cited

Category:

Principal judgment

Parties:

DRZ (Applicant)
Barnardos Australia (Respondent)

Representation:

Solicitors:
Michael Vassili Barrister & Solicitors (Appellant)
Care Legal (Respondent)

File Number(s):

2019/00019082

Publication restriction:

Section 65 of the Civil and Administrative Tribunal Act 2013 – except with the consent of the Tribunal the publication or broadcasting of the name the applicant, the child to which the application relates, any person who appears as a witness or is mentioned or otherwise involved in the proceedings is prohibited.

reasons for decision

1. On 18 January 2019, the applicant, DRZ, made an application seeking external administrative review of the decisions of the respondent, Barnardos Australia (‘Barnardos’), to:

1. remove the foster child (‘the Child’) that had been placed into the day to day care of the applicant in September 2017. Barnardos had placed the child with the applicant under its FaF program (i.e. the Find a Family permanent carer with a view to adoption program);

2. cancel the applicant’s authorisation as a carer under cl 42 of the Children and Young Person (Care and Protection) Regulation 2012 (NSW) (‘Care Regulation’): see also, s 137. To have the Child or any other foster child placed into her day-to-day care, the applicant needed to have her authorisation as a carer restored: Children and Young Person (Care and Protection) Act 1998 (NSW) (‘Care Act’), s 136 and 137; and

3. revoke the applicant’s approval as being suitable to adopt the Child under cl 50 and 54 of the Adoption Regulation 2015 (NSW) (‘Adoption Regulation’).

2. We heard the applicant’s application over three days in March 2019.

3. We determined the applicant’s application on 7 August 2019 (DRZ v Barnardos Australia [2019] NSWCATAD 157 (‘our earlier decision’)) and made orders affirming the decisions of Barnardos to cancel the applicant’s authorisation and to remove the Child from the applicant’s care. We also found that the Tribunal had no jurisdiction to review Barnardos’ decision to revoke the applicant’s approval as being suitable to adopt the Child.

4. As she was entitled to do, the applicant lodged an internal appeal against the orders we made: Civil and Administrative Tribunal Act 2013 (NSW) (’NCAT Act’), s 80.

5. On 17 March 2020, the Appeal Panel upheld the applicant’s appeal in part in regard to our decision to affirm the decision of Barnardos to cancel her authorisation: DRZ v Barnardos Australia [2020] NSWCATAP 47 (‘the first decision’). However, the Appeal Panel did not make final orders. Instead, it made orders for the filing and serving of submissions as to the orders the Appeal Panel should make.

6. On 10 June 2020, the Appeal Panel determined the applicant’s appeal and made orders, that included the following (DRZ v Barnardos Australia (No 2) NSWCATAP 105) (‘the second decision’):

(2) In accordance with this decision, the Tribunal is to reconsider the case based on the evidence before it and the factual findings it made, but without making the “Code of Conduct error.”

(3) If the Tribunal sets aside the decision to cancel DRZ’s authorisation, it should go on to consider whether the decision to remove from DRZ the responsibility for the daily care and control of the child is the correct and preferable decision. That decision may be made with or without further evidence, as the Tribunal sees fit.

7. We have now reconsidered the case, as ordered by the Appeal Panel. For the reasons that follow, we find that the correct and preferable decision is to cancel the applicant’s authorisation as a carer. Hence, it is unnecessary for us to go on and consider whether the decision to remove the Child from day-to-day care of the applicant is the correct and preferred decision. On the bases of our findings we have affirmed the decisions of Barnardos.

Decisions of the Appeal Panel

8. In its first decision, the Appeal Panel agreed that the Tribunal had no jurisdiction to review Barnardos’ decision to revoke the applicant’s approval as being suitable to adopt the Child.

9. At [9] and [11], in its first decision, the Appeal Panel summarised our reasons for affirming the decision of Barnardos to cancel the applicant’s authorisation as a carer as follows (bold added):

9.    The Tribunal accepted DRZ’s evidence that she did not consider that her relationship with Mr AB was a significant relationship. The Tribunal did not make any adverse findings about DRZ’s failure to disclose the relationship before October 2018. However, the Tribunal found that her conduct in:

(1)    failing to immediately report to Barnardos in October 2018 that she had learnt that Mr AB was a person of interest in a homicide investigation; and

(2)    her subsequent conduct from November 2018 to December 2018 in maintaining a relationship with Mr AB

was of such seriousness that it warranted cancellation of her authorisation. We will refer to this conduct as the “failure to report conduct” and the “maintaining the relationship conduct”.

…

11 As we see it, in essence, the Tribunal arrived at its decision because:

(1)    the “failure to report conduct” was a serious breach of the Code of Conduct for Authorised Carers (Code of Conduct) and consequently a failure to comply with a condition of the authorisation; [16], [168], [172]

(2)    the “maintaining the relationship conduct” demonstrated a serious lack of insight and understanding of her role as an authorised carer to protect the child from any possible risk of harm and this in combination with the serious breach of the Code meant that she was no longer a suitable person to be an authorised carer, having regard to the principle in s 9 (1) of the Care Act that “the safety, welfare and wellbeing of the child are paramount”, and despite the many factors in her favour; [173] and [17].

(3)    Plainly, once it was found that DRZ was no longer suitable to be an authorised carer, it also followed that the correct and preferable decision was that the child should be removed from her care.

10. The Code of Conduct reporting requirement relied on by us in our earlier decision was the fifth dot point under the heading ‘Care Environment’, which provides that a carer must:

Report immediately to the designated agency any incidents in the care environment or any change in household membership.

11. The word ‘incidents’ in this requirement is footnoted in the Code of Conduct as follows:

The Children and Young Persons (Care and Protection) Regulation requires an authorised carer to immediately notify the designated agency of any of the following occurs: the child or young person is expelled or suspended from school, absent without permission from care of the carer for a period of 24 hours or more, absent without permission (whether or not while in the care of the authorised carer) from NSW for any period, or suffers a serious accident, injury, illness or death, the authorised carer becomes a parent to another child or young person or the authorised carer or any other members of the household are charged with or convicted of an offence for which a penalty of imprisonment for 12 months or more may be imposed.

12. At [26], of its first decision, the Appeal Panel noted that the incidents referred to in the abovementioned footnote were identical to those used in cl 40 of the Children and Young Persons (Care and Protection) Regulation 2012 (NSW) (‘Care Regulation’). At [27], the Appeal Panel said:

If the reporting requirement were to be read more broadly, it would result in a great deal of uncertainty as to the incidents which are required to be reported. Given that a breach of the code of conduct may result in suspension or cancellation of a carer’s authorisation, it would not be expected that such uncertainty was intended. In the absence of clear language to the contrary, the reporting requirement should not be interpreted to require an authorised carer to report a wider range of incidents than that required under the Care Regulation.

13. At [29] of the first decision, the Appeal Panel concluded (bold added):

29    This conclusion means that the Tribunal misconstrued the reporting requirement in the Code of Conduct. There can be no dispute that if our interpretation is applied, “the interview with police in late October ” was not an incident which DRZ was required to immediately report to Barnardos under the fifth dot point in the Code of Conduct. To the extent that the Tribunal’s orders were based on a misconstruction of the Code of Conduct, they cannot stand.

14. The Appeal Panel was otherwise not satisfied that the applicant had established her other grounds of appeal.

15. At [16] of its second decision, the Appeal Panel said:

… [Without] the Code of Conduct error, the remaining basis for the Tribunal’s decisions is that DRZ engaged in the “maintaining the relationship conduct.” Would the Tribunal have concluded that that conduct alone meant that DRZ was no longer a suitable person to be an authorised carer? We cannot predict, with any certainty, what conclusion the Tribunal would have reached. As DRZ submitted, it is “an evaluative judgment as to whether the evidence of, and facts found regarding the “maintaining the relationship conduct” means that the correct and preferable decision is to affirm Bernardo’s decisions. In those circumstances the options are for the Appeal Panel to determine that issue ourselves or ask the Tribunal below to reconsider it.

16. After considering the submissions of the parties as to whether the Appeal Panel should re-determine the matter, or remit it to the Tribunal for reconsideration, at [20] of its second decision, the Appeal Panel said:

… [In] theory, we could read the evidence and the transcript and adopt the Tribunal’s findings on those issues. However, in a case like this where DRZ’s motivations and candour were so crucial to an assessment of her suitability, it would be fairer for the Tribunal to re-determine the correctness of the cancellation decision: NCAT Act, s 81(1)(e). That decision should be based on the evidence that was before the Tribunal at first instance and the findings that have not been disturbed by the Appeal Panel’s 17 March 2020 decision. No further evidence should be adduced.

Proceedings before the Tribunal on remittal

17. The applicant’s external review application was listed for directions, before Senior Member Higgins, on 27 August 2020. It was agreed that the Tribunal should first and foremost, in accordance with the findings and orders of the Appeal Panel, determine the correct and preferable decision in regard to the decision to cancel the applicant’s authorisation. On this basis, the following directions/orders were made:

1    By 4 September 2020, in accordance with the orders made by the Appeal Panel on 10 June 2020, DRZ is to give to the Tribunal and Barnardos Australia any further written submission as to the correct and preferable decision in regard to her authorisation as a carer. Those submissions are to indicate whether she has any objection to the issue of her authorisation as a carer being determined on the papers, in the absence of a hearing.

2    By 11 September 2020, in accordance with the orders made by the Appeal Panel on 10 June 2020, Barnardos Australia is to give to the Tribunal and DRZ any further written submission as to the correct and preferable decision in regard to DRZ's authorisation as a carer. Those submissions are to indicate whether she has any objection to the issue of her authorisation as a carer being determined on the papers, in the absence of a hearing.

3    DRZ is to give to the Tribunal and Barnardos Australia any submissions in reply by 18 September 2020.

4    Subject to giving the other party three days notice, each party is granted liberty to approach the Registry to have the matter re-listed for a further directions hearing.

5    Notes: The respondent noted that the applicant's authorisation lapses on 13 October 2020.

18. On 10 September 2020, the solicitor for the applicant filed and served written submissions, together with a transcript of the hearing of the applicant’s application before us on 5 and 8 March 2019. In his submissions, the solicitor for the applicant said that there was no objection to the matter, on reconsideration being determined on the papers.

19. On 21 September 2020, the solicitor for Barnardos filed and served:

1. a 19 page affidavit, affirmed on 16 September 2020, by Haley Whitehurst a Program Manager employed by Barnardos;

2. a 256 page Exhibit to the abovementioned affidavit of Haley Whitehurst; and

3. written submissions on reconsideration of the applicant’s carer authorisation decision, for which the solicitor said there was no objection to the matter being determined on the papers. Attached to the written submissions were copies of the written submissions of Barnardos filed earlier in these proceedings and those filed and served in the Appeal.

20. On 18 September 2020, the solicitor for the applicant sent an email to the Registry in which he formally objected to the affidavit of Haley Whitehurst. The grounds of objection were as follows:

There is no direction for its filing and it seeks to traverse the decision of the Tribunal of the 27^th August 2020 refusing to grant leave to the Respondent to file further evidence; and in any event it is:

a.    An abuse of process and arguably contemptuous of the above ruling of the Tribunal; otherwise

b.    Not relevant;

c.    In its form and, in any event of no probative value; and

d.    Scandalous

21. On 1 October 2020, the solicitor for the applicant sent a further email to the Registry in which he confirmed that the applicant relied on the submissions she had filed in the proceedings to date and did not wish to file a further response submission, save as to her objection to the affidavit of Haley Whitehurst. We have dealt with that objection below.

22. As neither party objected to the matter being determined on the papers, we are also satisfied that the issues for determination on the remittal of the application from the Appeal Panel can be adequately determined in the absence of the parties by considering the material filed and we make an order accordingly: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 50(2). Hence, we make an order dispensing with a hearing.

Matters in issue on reconsideration

23. There is no dispute that, on remittal, our role remains the same in that we are to determine the correct and preferable decision having regard to the evidence before us, our findings of fact (without the ‘Code of Conduct error’), and the relevant law: Administrative Decisions Review Act 1997 (NSW) (‘ADR Act’), s 63.

24. In this regard, the solicitor for the applicant contended that the question posed for us on reconsideration is limited in that it does not involve the re-determination of any contested issues of primary fact. Instead, it involves an evaluative judgment as to whether the evidence of, and facts as found, regarding the ‘maintaining the relationship conduct’ of the applicant could alone justify the steps taken by Barnardos in deciding to cancel the applicant’s authorisation and removing the Child from the applicant’s care.

25. We agree that the question posed for us on remittal from the Appeal Panel is mainly an evaluative one. However, we do not accept that it is limited to what the Appeal Panel categorised as the ‘maintaining the relationship conduct’ of the applicant, which spanned from early November 2018 until 10 January 2019, when the applicant was directed by Barnardos to cease any contact with Mr AB.

26. In our view, having regard to the reasoning of the Appeal Panel in its first decision, at [28], there remains an issue as to whether, having been informed, in October 2018, that Mr AB was a person of interest in a murder, the applicant, as an authorised carer, was expected, or required to notify Barnardos of what she was told and whether a failure to do so amounted to a breach of the Code of Conduct (other than the immediate reporting requirement).

27. In her submissions, the solicitor for Barnardos submitted that on remittal, in addition to having regard to the material that was before us at the hearing in March 2019 and our findings (apart from the ‘Code of Conduct error’), it is open to us to consider fresh evidence and make new findings of fact ‘as the entire case has been remitted’. It is on this basis that Barnardos seeks to rely on the affidavit of Haley Whitehurst.

28. The solicitor for Barnardos also contended that, if we were to decide, on reconsideration, to set aside its decision to cancel the applicant’s authorisation, her authorisation could not be restored beyond 13 October 2020, as this was the date on which her authorisation expired. Nevertheless, it appears to have been accepted that the applicant’s right of review of the decision to authorise her as a carer did not also expire on this date.

29. Affidavit of Haley Whitehurst - As explained by the respondent, in her affidavit, Haley Whitehurst provides an update on a number of issues. Included in the updates is proceedings having been commenced, by Barnardos, on 9 July 2020, in the Supreme Court, seeking an adoption order for the Child in favour of the authorised carers with whom the Child was placed shortly after she was removed from the applicant’s care, disclosures allegedly made by the Child after she had been removed, criminal proceedings commenced against Mr AB by police, recent contact the applicant has had with Barnardos, recent amendments to Barnardos’ Code of Conduct for Authorised Carers, and recent organisational changes within Barnardos.

30. As we have noted above, at [20] of its second decision, the Appeal Panel expressly said that the remittal was subject to no further evidence and this is reflected in the orders it made in that decision. Hence, on this basis alone, we have not taken into account the evidence of Haley Whitehurst.

31. In our view, leaving aside the remarks of the Appeal Panel and the orders it made in its second decision, we would have upheld the objections of the applicant on the grounds of relevance and reliability. For example, it is difficult to see how the adoption proceedings, the recent organisational and the Code of Conduct changes, and the other events which occurred subsequent to Barnardos decision to cancel the applicant’s authorisation and remove the Child from her care are relevant to or could assist in determining whether, between October 2018 and January 2019, the conduct of the applicant, in her capacity as an authorised carer with a child in her care, was such that it constituted a ground on which her authorisation could be cancelled.

23. Expired authorisation - Barnardos has not explained the basis on which the applicant’s authorisation will, or has expired.

24. We note, cls 62 and 63 of the Adoption Regulation provides that the duration of an approval, made under that Regulation, is four years, or such further period as extended or reduced by the relevant decision maker. In this case, the applicant’s approval under the Adoption Regulation was for four years which we understand has now expired.

25. Section 137(2)(d) of the Care Act provides that the regulations may make provision for or with respect to the period for which an authorisation remains in force. However, the Care Regulation does not prescribe a duration period for an authorisation. Instead, it makes provision for an authorisation to end when surrendered by the authorised carer, suspended or cancelled by the designated agency (including a presumed cancellation), or a Guardianship order is made: Care Regulation, cls 41A, 42, 42A and 42CA.

26. Provision is also made for the automatic cancellation of an authorisation where the carer ceases to meet the working with child requirements, because the carer’s working with children check clearance has been cancelled by the Children’s Guardian, the carer is subject to an interim bar imposed by the Children’s Guardian, or the carer’s working with children check clearance has expired and the Children’s Guardian has refused to grant a further clearance: Care Act, s 42B and Child Protection (Working with Children) Act 2012 (NSW) (‘WWC Act’), ss 17, 22, 23 and 18. Section 22 provided that the duration of a working with children check clearance is five years.

27. An automatic cancellation of an authorisation is not a reviewable decision by the Tribunal.

28. In this case, there is no evidence before us, that the applicant’s working with children check clearance has expired, that it has been cancelled by the Children’s Guardian, that the applicant is subject to an interim bar, or that her authorisation is presumed to be cancelled.

The Care Act and Care Regulation

38. At [77] to [100], in our earlier decision we set out in some detail the relevant provisions of the Care Act, the Care Regulation and the Code of Conduct. It is unnecessary to repeat all of these.

39. The objects of the Care Act are set out in s 8, which includes the following:

8   What are the objects of this Act?

The objects of this Act are to provide:

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

(a1)     recognition that the primary means of providing for the safety, welfare and well-being of children and young persons is by providing them with long-term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles, and

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

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

40. The principles under which the Care Act is to be administered are set out in s 9, with the paramount principle being:

9 Principles for administration of Act

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

41. The objects of Chapter 8 of the Care Act, which contains the provisions for out-of-home care, includes ‘to create a high standard in the provision of out-of-home care’ and to clarify the roles and responsibilities of those involved in the provision of such care (e.g. designated agencies and authorised carers): Care Act, s 134.

42. As we have noted, at [85], of our earlier decision, the Care Regulation makes provision for the making of an application for authorisation, the determination of such applications and the cancellation, or suspension of an authorisation: Care Act, s 137(2).

43. Clause 30(4) of the Care Regulation provides that a designated agency must not authorise a person as a carer unless the agency has determined that the person is capable and suitable to be an authorised person.

44. Clause 30(5) of the Care Regulation provides that a designated agency must not determine that a person is capable and suitable to be authorised as a carer unless each of the matters prescribed in para (a) to (f) in that clause are satisfied, which includes the following:

(e)     the applicant has provided a signed statement that the applicant has read, understood and will comply with the code of conduct for authorised carers, and

(f)     the agency has taken into account:

(i)     the functions of an authorised carer and any risk that the applicant would be unable to properly perform those functions, and

(ii)     any risk to a child or young person were the applicant to be authorised (including risks from the applicant’s home or persons who reside on the same property as the applicant), and

(iii)     any relevant information available to the agency.

45. Clause 34 of the Care Regulation sets out the conditions of an authorisation, which includes a condition that ‘the authorised carer must comply with the code of conduct for authorised carers’: Care Regulation, cl 34(4). The term ‘code of conduct for authorised carers’ is defined in cl 34(5), to mean ‘the code of conduct for authorised carers approved by the Minister for the purposes of this definition and published on the relevant website of the Department, as in force from time to time’.

46. Clause 36 of the Care Regulation provides that an authorised carer is personally responsible for carrying out the carer’s functions and duties as an authorised carer.

47. Clause 42 of the Care Regulation makes provision for the cancellation or suspension of the authorisation of an authorised carer as follows:

42   Cancellation or suspension of authorisations by designated agencies

A designated agency may, by notice in writing, cancel or suspend the authorisation of an authorised carer if the agency is of the opinion that the authorised carer:

(a)     is no longer a suitable person to be an authorised carer, or

(b)     has failed to comply with any condition of the authorisation, or

(c)     has failed to comply with any obligation or restriction imposed on the authorised carer by the Act or this Regulation, or

(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.

Note.

Under section 245 (1) (a) of the Act, a decision to cancel or suspend the authorisation of an authorised carer is administratively reviewable by the Civil and Administrative Tribunal.

48. The Code of Conduct that the applicant acknowledged she had read, understood and would comply with, included the following:

Authorised carers are expected to:

General

• Follow the lawful policies, procedures and guidelines brought to your attention by the designated agency

…

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

• …

Care environment

• Provide a physical environment that is safe, clean and comfortable and meets the needs of the child or young person in your care

…

• Provide a care environment where the child or young person is not exposed to physical, sexual, psychological or verbal abuse, ill treatment or neglect. …

The evidence

49. Set out in our earlier decision, at [51] to [54], is a summary of the evidence relied on by the applicant and Barnardos at the hearing.

50. The undisputed factual background to the applicant’s application for review is set out at [19] to [50] of our earlier decision. In this regard we note the following:

1. in December 2015, the applicant submitted an application with Barnardos to become an authorised carer with a view to adoption. At the time the applicant had been friends with Mr AB, a work colleague, for about five years. Mr AB was married with two children at the time;

2. about two years prior to submitting her application to Barnardos, the applicant commenced a sexual relationship with Mr AB. The applicant’s evidence is that it was a purely sexual relationship without any commitment to each other. It was also a relationship that she did not tell her family about, or Barnardos during its assessment of her as an authorised carer and her suitability to adopt a child;

3. in August 2016, the applicant went on a holiday to Thailand with Mr AB. She did not tell her family that Mr AB was travelling with her;

4. in September 2016, Barnardos completed its carer assessment of the applicant which recommended that she be approved as an authorised carer and prospective adoptive parent. In November 2016, Barnardos wrote to the applicant to inform her that her application as a permanent carer with a view to adoption had been accepted. The applicant signed Barnardos ‘Code of Conduct for Authorised Foster, Relative and Kinship Carers’;

5. in early September 2017, the applicant alleged that Mr AB had assaulted her when she went to his home that evening. She alleged that he came out of his house and pushed her over and that he swore at her and told her she was trespassing. The applicant allegedly left quickly and called the local police station. Nine days later the applicant made a statement to police about the incident and she ceased any further contact with Mr AB. Police took no further action in regard to the alleged assault. The applicant’s evidence in regard to this incident is set out at [117] and [118] of our earlier decision;

6. in late September 2017, Barnardos placed the Child into the day-to-day care of the applicant. Barnardos conducted weekly and then monthly visits and found that the Child had settled in well and was happy and had extensive contact with the applicant’s family. Nor were any major issues raised in regard to the applicant’s care of the Child. The applicant’s evidence in regard to the placement of the Child in her care is set out at [116] of our earlier decision;

7. on the initiation of Mr AB, in December 2017, the applicant recommenced having contact with him. The applicant’s evidence as to the number of times she had contact with Mr AB from this date up to mid-October 2018 is set out at [120] to [122] of our earlier decision;

8. on 26 October 2018, the applicant was contacted by a detective from the Homicide Squad of W Police to say that he was investigating a homicide and that Mr AB was a person of interest in that investigation. At the request of the detective, a few days later, the applicant attended the local police station and agreed to give the detective her mobile phone so that he could examine and download any text messages she had on her phone from Mr AB. The applicant did not inform Barnardos of this incident. The applicant’s evidence in regard to this incident is at [123] of our earlier decision;

9. after being contacted by the detective, the applicant continued to meet with Mr AB. The applicant’s evidence in regard to these meetings (six in total) is contained at [124] of our earlier decision;

10. on 9 January 2019, Barnardos received a risk of harm report from Family and Community Services concerning Mr AB, who was a person of interest in a serious criminal investigation. The report also noted that the children of Mr AB were scared of having contact with their father. Barnardos was asked whether it was aware of Mr AB and whether there were any concerns about the placement of the Child with her carer. The relevant extract of this report is set out at [44] and [127] of our earlier report;

11. on the following day, at the request of Barnardos, the applicant met with Abigail Strus (Barnardos Adoption Case Manager) and Benn Anderson (Barnardos Adoption Program Manager) where she provided an explanation of her relationship with Mr AB and agreed to have no further contact with him, including not responding to any of his calls or messages. The applicant also signed a ‘Safety Plan’ to which she added: ’I will contact [Mr AB] & advise that there will be no further contact’;

12. three days later, the applicant met with Joanne Reece (Barnardos Regional Manager Adoption) and Ruth Drennan (Barnardos Regional Manager Recruitment), where she was asked more detailed questions about her relationship with Mr AB and her allegations to police that he had assaulted her in early September 2017;

13. on 17 January 2019, the Child was removed from the care of the applicant. Barnardos initially placed the Child into the care of an emergency carer and two weeks later she was transitioned, by Barnardos, into full time care of her current carer on the basis of that carer being the Child’s permanent carer with a view to adoption;

14. on 4 February 2019, on the information provided by the applicant, the police made an application seeking an apprehended violence order against MR AB for the protection of the applicant; and

15. on 9 February 2019, Mr AB contacted Barnardos head office and left a message. On the same day Benn Anderson and Joanne Reece telephoned Mr AB. Mr AB is recorded as having said that he and the applicant were in a relationship and that the applicant had contacted him on numerous occasions since 10 January 2019.

The applicant’s submissions

51. In his written submissions, the solicitor of the applicant contended that on the evidence before us at the hearing and our positive findings in regard to the applicant’s care of the child we could comfortably find that the applicant was a ‘suitable person’ to be authorised as a carer. In support of this contention, the solicitor relied on specific sections of the transcript of the hearing on 8 and 9 March 2019, the fact that there was no evidence of the Child having been placed at risk and the applicant’s acknowledgement that she should have disclosed her relationship with Mr AB and her regret in failing to do so.

52. The solicitor for the applicant went on to contend that, in the circumstances, the conduct of the applicant in having maintained a relationship with Mr AB after October 2018 alone was not sufficient to warrant a cancellation of her authorisation.

Barnardos’ submissions

53. The solicitor for Barnardos submitted that, there were a number of bases to support our original decision in affirming its decision to cancel the applicant’s authorisation.

54. In this regard it was submitted that the applicant was no longer a ‘suitable person’ to be authorised as a carer. As to the test of a ‘suitable person’ the solicitor relied on the remark made by the Appeal Panel, at [37] of its first decision, that the terms ‘suitable person’ and ‘fit and proper person’ were interchangeable. As to the meaning of the latter term, the solicitor referred to the meaning given to that term in Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127, at [9] and McBride v Walton, NSW Court of Appeal. Unreported, 15 July 1994, [21] to [26] and [59] to [73].

55. The solicitor went on to identify conduct of the applicant which she contended demonstrated that she was not a ‘suitable person’, which included the following:

1. the applicant’s failure to report to Barnardos the 2018 police investigation that involved Mr AB;

2. her continuance of a relationship with Mr AB (including ongoing contact with the Child) until Barnardos intervened on 10 January 2019;

3. her ongoing contact with Mr AB on 12 January 2019 and again on 29 January 2019, despite the Safety Plan that she had signed; and

4. being on notice as to the character and violent tendencies of Mr AB following his alleged assault on her in early September 2017, yet deciding to resume a relationship with him subsequently.

56. We have disregarded the remaining grounds as they seek to re-argue findings we made in our earlier decision and which were not the subject of appeal. Nor were they criticised, or commented upon by the Appeal Panel.

57. In conclusion the solicitor for Barnardos submits that:

… [there) is no trust between the Applicant and the Respondent, such that the integrity of the relationship is so diminished/fractured that it cannot be repaired. It follows that the correct and preferable decision is to formally sever that relationship by affirming the Respondent’s decision in respect of the carer authorisation decision. …

58. Although this is not a specific ground on which an authorisation can be cancelled, we appreciate Barnardos has at all times contended that the applicant cannot be trusted. In her evidence, the applicant accepted that she made mistakes. She did not seek to blame anyone but herself and sought to be given another chance.

Our findings in our earlier decision

59. It is convenient to briefly set out the findings we made in our earlier decision.

Finding as to credit

60. In regard to the credit of the applicant as witness, at [130] of our earlier decision, we found:

130 First, we find that the applicant did on the whole give open and frank evidence. On a number of occasions her evidence was against her own interests. We did not find that she was at all evasive or deceptive in the responses she gave to questions asked of her by the solicitor for the respondent.

Findings in regard to the applicant’s relationship with Mr AB

61. At [133] to [52] of out earlier decision, are our findings in regard to the applicant’s relationship with Mr AB and her failure to disclose that relationship to Barnardos when asked about people with whom she had been in a significant relationship. At [140], we said:

140 We accept the evidence of the applicant that her 2015 expression of interest was genuinely made on the basis that she alone was seeking to be authorised as a prospective carer and adoptive parent. Her motivation for doing so was recorded as being the break-up of her long term relationship with her last partner with whom she had hoped to have children. There is no evidence that she was otherwise motivated, or that she intended, wanted or sought to share this role with Mr AB, who, at the time, was married and living with his wife and children.

62. At [147] to [150] we said:

147 … [in] her 13 September 2017 statement to police (EX A1, 70), the applicant described her relationship with Mr AB as being a boyfriend/girlfriend relationship, we do not find that her responses in the Authorised Carer Review were either deliberately false, or false. On the evidence before us, there were no significant changes in her personal or family circumstances of the kind described in the Review form. Nevertheless, on the evidence of the applicant, her relationship with Mr AB appears to have intensified from March 2017, when, to the knowledge of the applicant, Mr AB’s wife left the family home with their children. It was after this date that the applicant said she stayed with Mr AB at his home for several nights every week. We understand the applicant to say that even though there was more regular contact the nature of the contact did not change. In her oral evidence, the applicant did acknowledge that she cared for Mr AB but she did not at any time consider him to be a partner or life partner.

148 We understand the position of the respondent that it has an expectation that persons expressing an interest in becoming a prospective authorised carer and adoptive parent disclose all aspects of their personal life, including any current or long-term sexual relationship with any other person who might have direct contact with any child that is placed into the care of that person. Depending on a person’s individual circumstances, this expectation will be easily recognised.

149 In our opinion, on the evidence before us, at the time the applicant lodged her expression of interest, she did not have this understanding, but nevertheless answered the questions asked of her truthfully to the best of her understanding. She was a first time applicant, with no children of her own, and at no time was she asked whether she was involved in any current relationship of a personal or sexual kind with another person. This is understandable, as her expression of interest was made on her behalf alone and she identified her support network as being her family and a former long-term partner. Nevertheless, we consider this an appropriate question that should be asked of all prospective applicants.

150 In her oral evidence, the applicant acknowledged this to be the case and, given the circumstances she now finds herself in, she wishes she had done so as she now understood why the respondent would need to know such information.

63. At [151], we concluded by saying:

151 Accordingly, for the reasons set out above, while we agree that information of this kind was relevant personal information about the applicant, we do not find that it was information the applicant was specifically required or requested to disclose. Nor, in our opinion, on the evidence before us, do we find that the applicant was deceptive, or deceitful in failing to disclose this relationship in her expression of interest or during her subsequent assessment. We accept her evidence that she did not consider this relationship as a ‘significant relationship’ within the context of the questions asked of her by the respondent. Nor is there any evidence that Mr AB played a role in the applicant’s decision to lodge her expression of interest, or that he was involved in or influenced the decisions the applicant made about the day-to-day care of the Child.

Findings in regard to the applicant’s failure to report the September 2017 alleged assault

64. At [154] we found that the September 2017 alleged assault by Mr AB of the applicant had not occurred in the care environment as she did not have a child in her care at that time. We also noted that:

… [In] her oral evidence, the applicant acknowledged the importance of the respondent being informed of such incidents, but in this case, at the time, she did not believe it was relevant because she did not have a child in her care and she was so shaken with what had happened that she did not intend to see Mr AB again.

The October 2018 incident and lack of insight

65. While we did not accept the contention of Barnardos that the applicant was ‘directly involved in a Police homicide investigation’, at [156] and [157], we found:

156 … At [In] our opinion, regardless of what she believed, once she had been informed that Mr AB was a person of interest in a homicide this was an incident of such seriousness that she should have realised that she needed to report this to the respondent, as it and not she was the person responsible for supervising the placement of the Child on behalf of the Minister, who had parental responsibility of the Child. The respondent also had many more avenues open to it to assess risk to the Child if the applicant were to [have] any further contact with Mr AB. The fact that Mr AB was one of several persons of interest did not, in our opinion, make any difference.

157 In this case there was even more reason to report the incident to the respondent, as the police had taken her mobile phone to verify what Mr AB had told police his movements had been at the relevant time. While the applicant explained that she specifically asked police whether she needed to be concerned about having contact with Mr AB, in our opinion, this did not absolve her from reporting the incident to the respondent.

66. At [162] and [167] we agreed with the contentions of Barnardos, that the applicant’s failure to inform it of the October 2018 incident ‘demonstrated a lack of insight and understanding of her role as an authorised carer to ensure that the safety, welfare and well-being of the Child is paramount at all times’.

67. At [163] to [166], we noted the following:

163 … [what] is of concern is the number of times the applicant met with Mr AB after 26 October 2018. She met with him six times and of these, five occurred in December. On her own evidence this was a significant increase in the number of meetings she had with Mr AB in any month since she had reconnected with him in December 2017.

164 From the material produced under summons by Family and Community Services and NSW Police, Mr AB’s separation from his wife appears to have been very acrimonious where police were called on a number of occasions over during 2016 and 2017 (EX R5, R6 and R7). The material also indicates that there were issues concerning Mr AB’s mental health and his life style choices. It is the evidence of the applicant that she was unaware of these issues, other than Mr AB having difficulties in his separation with his wife. She said she understood the applicant and his wife had separated in 2016 but continued to live in the same home until March 2017.

165 We note that in the 3 January 2019, Safety Assessment Decision Report of Family and Community Services, concerning Mr AB’s contact with his own children, he was assessed as not posing any risk to their safety (EX R8, 35 – access to this EX was limited to the Tribunal and the legal representatives of the parties). …

166 While the evidence would indicate that Mr AB did not pose a real and appreciable risk to the safety of his own children, this does not absolve the applicant of her responsibility as the authorised carer of the Child to protect her from any possible risk of harm. Based on the information she was given by the Detective Sergeant in October and November 2018, it was incumbent on her to ensure that the Child was safe. While her evidence in these proceedings is that she understands that any risk to her was a risk to the Child, in our opinion, this shows a lack of understanding of her protective role as an authorised carer. … Hence, it is difficult to see how she took protective action to minimise her contact with Mr AB after being told he was a person of interest in a homicide.

68. At [169] we concluded that: ‘during November and December 2018, the applicant demonstrated a serious lack of insight and understanding of her protective role as an authorised carer. Had she informed the respondent of the October 2018 incident this would not have arisen’.

Consideration

Meaning of suitable person

69. As noted above, a ground for cancelling a carer’s authorisation is that the carer is no longer a ‘suitable person’ person to be an authorised person: Care Regulation, cl 42(a). At [37] and [38] of its first decision, the Appeal Panel said the following in regard to the meaning of suitable:

37 In other legislation, the term “fit and proper person” rather than “suitable person” is sometimes used. We see these terms as interchangeable. In discussing the meaning of the expression “fit and proper person”, Toohey and Gaudron JJ said in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321:

The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

38 In this case, although the Tribunal did not use the word “improper”, it was clearly determining whether any untoward conduct had occurred. That is a legitimate question in the context of deciding whether a person is no longer a suitable person to be an authorised carer. The Tribunal does not have to go further and determine whether such conduct is likely to occur again. …

70. These remarks were made in the context of the applicant’s ground of appeal that we had erred in relying on the objective seriousness of the applicant’s conduct, rather than asking ourselves whether, given what happened, would the applicant be a suitable person to be an authorised carer in the future.

71. As we noted in our earlier decision, at [90], cl 30(4) of the Care Regulation provides that a designated agency must not authorise an applicant for an authorisation, unless the agency has determined that the person is capable and suitable to be an authorised carer. Clause 30(5) of the Care Regulation prescribes a number of matters the designated agency is to be satisfied of, or obtain, before it before it determines whether a person is capable and suitable to be authorised as a carer. As indicated by the Appeal Panel, the prescribed matters are consistent with those relevant to the ‘fit and Proper test’ as described in Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.

72. As we have noted above, at [43], cl 30(5) of the Care Regulation prescribes the matters a designated agency must be satisfied of and taken into account before determining that a person is capable and suitable to be an authorised carer. The matters of which the designated agency is to take into account includes, the functions of an authorised carer and any risk that the applicant would be unable to properly perform those functions, any risk to a child or young person were the applicant to be authorised, and any relevant information available to the agency: Care Regulation, cl 30(5)(f).

73. In this case, the out-of-home care the applicant was authorised to provide was statutory out-of-home care, which is taken to have commenced immediately the Child was placed into her care and from that time she became personally responsible for carrying out the functions and duties of an authorised carer: Care Act, s135A(2)(b) and Care Regulation, cl 36.

74. Section 157 of the Care Act sets out the care responsibilities and functions of an authorised carer. These are subject to a written direction given by the designated agency or the Children’s Guardian. Included in the functions and responsibilities is consenting to medical and dental treatment not involving surgery on the advice of medical practitioner or dentist, correct and manage behaviour (subject to the regulations), give permission to participate in school activities organised for the child (e.g. excursions) and to make decisions that are required in the day-to-day care and control of the child in care of the authorised carer.

75. In exercising his or her functions and responsibilities, an authorised carer is subject to the supervision of the designated agency that placed the child in the carer’s care: Children’s Guardian Act 2019 (NSW), s 82 (prior to the commencement of the Children’s Guardian Act, a similar provision was contained in s 139 of the Care Act).

76. As we have already noted, any decision (including any action) made by an authorised carer about the child, in his or her day-to-day care and control of the child, are to be made under the principle that the safety, welfare and well-being of the child is paramount: Care Act, s 9(1). That is, the role of an authorised carer is protective, including protecting the child from risks of harm. That role is also consistent with the s 8 objects of the Care Act and s 134 of Chapter 8 of the Care Act.

77. As noted by the Tribunal, in AIR v Department of Family and Community Services [2013] NSWADT 141, at [70], authorised carers are required to provide the children in their care with a safe and stable and nurturing environment.

The October 2018 failure to notify incident

78. We reiterate our findings, made in our earlier decision, about the applicant’s obligation, as an authorised carer, to notify Barnardos of the information she had been given by the NSW detective, in October 2018, that Mr AB was a person of interest in a homicide, together with the request of the detective to give him her mobile phone so as to assist in his enquiries: see at [156], [157], [162], [163] and [166] of our earlier decision and at [65] to [66] above.

79. The evidence is that the applicant, and on some occasions together with the Child, had regular contact with Mr AB during 2018, with the most recent contact being an outing with the Child, on 13 October 2018. The evidence is that, at the time the detective approached the applicant, she had no intention to cease her contact with Mr AB. However, on being informed that Mr AB was a person of interest in a recent homicide, this, on any view, raised a serious question about Mr AB posing an unacceptable risk of harm. Given the seriousness of what the applicant was told and the fact that she and the Child had been having regular contact with Mr AB, in our opinion, she should have notified Barnardos immediately. In our opinion, her failure to do so demonstrated a serious lack of judgment.

80. As pointed out by the solicitor for Barnardos, in September 2017, the applicant herself had been the victim of Mr AB’s violent conduct. On that occasion she reported the alleged assault to police, yet when informed that Mr AB was a person of interest in a homicide she did not notify Barnardos, the agency responsible for the supervision of the Child’s placement.

81. In her evidence at the hearing, the applicant acknowledged that a person of interest in a homicide is a potential risk to her and through her a risk to the Child: see at [113] of our earlier decision. In our opinion, this demonstrated a misguided view of the Child being protected by her being present if Mr AB were to become violent. Her experience in 2017, should have told her otherwise.

The maintaining the relationship conduct

82. We reiterate our findings at [166] and [167] of our earlier decision that the applicant’s ongoing contact with Mr AB after she had been informed that he was a person of interest in a homicide was a further demonstration of her lack of insight as to her protective role as an authorised carer. In our view, in light of the increased number of contacts with Mr AB from November to December 2018, it was a serious lack of insight, almost a disregard of her role as an authorised carer.

83. In her evidence at the hearing (see at [113] of our earlier decision), the applicant having acknowledged the risk Mr AB posed to herself and, hence the Child, went on to say that she decided, in response to that risk, to minimise Mr AB’s contact with the Child by not allowing Mr AB to visit her home when the Child was also present. Her understanding of the Child not being present was that the Child was not physically within the presence of Mr AB, yet her evidence was that on two occasions the Child was asleep which Mr AB was at her home.

84. Once again, in our view, the applicant’s focus on minimising contact between the Child and Mr AB, rather than no contact, was misguided, and, also demonstrative of the applicant having a a lack of judgement and a lack of insight into her protective day-to-day role as an authorised carer with a foster child in her care.

Is the applicant no longer suitable to be an authorised carer?

85. As noted above, to be suitable to be an authorised carer, a person must be able to properly perform, to a high standard, the functions of an authorised carer. Those functions mainly relate to decisions made and actions taken during the course of the day-to-day care and control of the child placed into the authorised carers care. In making these decisions and taking these actions, the safety, welfare and well-being of the child are to be paramount so as to protect the child from a risk of harm.

86. For the reasons set out above, we are critical of the applicant failing to notify Barnardos, in late October or early November 2018, that the detective had informed her that Mr AB, a person she knew and had contact with the Child, was a person of interest in a recent homicide.

87. It is the conduct of the applicant in continuing to have contact with Mr AB, after being told he was a person of interest in a recent homicide, which we find to be of greatest concern. In our opinion, that conduct, on its own, establishes that the applicant is no longer suitable to be authorised as a carer, because she failed to perform a core function of an authorised carer, namely to protect a child placed into her care day–to–day care from a risk of harm. Instead, she exposed the Child to a risk of harm, a risk of harm that only ended with the intervention of Barnardos on becoming aware of the applicant’s relationship with Mr AB and that he was a person of interest in a recent homicide.

What is the correct and preferable decision?

88. We note that even where one or more of the grounds for cancellation or suspension has been established, the power to cancel or suspend an authorisation under cl 42 is nevertheless discretionary.

89. There is no dispute that the applicant loved the Child and that the Child had flourished in the year and three months she was in the care of the applicant. We also found, at [173], that there was no evidence of any actual harm to the Child.

90. As we have already noted, we found the applicant to be open and frank in her evidence.

91. At [170] of our earlier decision, we also found that the applicant’s conduct and her lack of insight as to her role as an authorised carer was largely due to her naivety and a misguided sense of loyalty. We reiterate that finding and have also question her judgment when faced with a challenge, which authorised carers are often faced with; see at [73] of our earlier decision.

92. At [171] of our earlier decision, we accepted that:

171 ... the applicant deeply regrets that she did not disclose, from the beginning, her relationship with Mr AB. She also regrets that she did not report to the respondent the subsequent 2014 assault and the October/November 2018 incident. …

93. Even though we accept that the applicant regrets what she failed to do, this does not mean that she has the requisite insight and judgment to deal with the many challenges an authorised carer soften faces in the day-to-day care of a foster child. Nor is there any evidence of such. Hence, we find that the correct and preferable decision is to cancel her authorisation.

94. This does not mean that at some time in the future, the applicant is prevented from again seeing authorisation. However, before she does so, she must be able to demonstrate that she does have a proper understanding of the role, functions and responsibilities of an authorised carer.

Conclusion and Orders

95. For the reasons set out above, we find that the decision of the respondent to cancel the applicant’s authorisation is the correct and preferable decision: ADR Act, s 63(1).

96. On this basis, it is unnecessary for us to reconsider our earlier decision to affirm the decision of the respondent to remove the Child from the applicant’s care

97. Hence, we make the following orders:

1. A hearing is dispensed with pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW).

2. The decision of the respondent to cancel the applicant’s authorisation is affirmed.

3. The decision of the respondent to remove the Child from the applicant’s care is affirmed.

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: 17 December 2020