Ekh v Burrun Dalai Aboriginal Corporation Inc. (No 2) - [2021] NSWCATAD 344

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: EKH v Burrun Dalai Aboriginal Corporation Inc. (No 2) [2021] NSWCATAD 344
Hearing dates: 19, 20, 21 January 2021, 10 May 2021 and 1, 2 July 2021
Date of orders: 17 November 2021
Decision date: 17 November 2021
Jurisdiction: Administrative and Equal Opportunity Division
Before: A Starke, Senior Member
L Houlahan, General Member
Decision:
(1) The decision of the respondent dated 22 April 2020 to remove three children from the care of the applicants is affirmed.
(2) The decision of the respondent dated 19 October 2020 to cancel the carer authorisation of the second applicant is affirmed.

Catchwords:
ADMINISTRATIVE LAW – Child protection – Out of home care – Application for review of decision to remove children from care of authorised carer – Application for review of decision to cancel carer authorisations

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Children and Young Persons (Care and Protection) Regulation 2012 (NSW)
Children’s Guardian Act 2019 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Community Services (Complaints Reviews and Monitoring) Act 1993 (NSW)
Ombudsman Act 1974 (NSW) (repealed)

Cases Cited:
Briginshaw v Briginshaw [1938] HCA 34
DCP v Challenge Children’s Services [2017] NSWCATAD 365
Dept of Community Services v “Rachel Grant”, “Tracey Reid”, “Sharon Reid” and “Frank Reid” [2010] CLN 1
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
DWA v Veritas House [2020] NSWCATAD 40
EKH v Burrun Dalai Aboriginal Corporation Inc. [2020] NSWCATAD 266
Johnson v Page [2007] Fam CA 1235
M v M [1988] HCA 68
NS & NT v Director-General, Department of Community Services [2009] NSWADT 149
Re Louise and Belinda [2009] NSWSC 534
Re Tracey [2011] NSWCA 43
YG and GG v Minister for Community Services [2002] NSWCA 247

Texts Cited:
None cited

Category: Principal judgment
Parties: EKH (First Applicant)
EKI (Second Applicant)
Burrun Dalai Aboriginal Corporation Inc (Respondent)
Representation:
Solicitors:
First and Second Applicants (Self-Represented)
McNeilly Lawyers (Respondent)
Bobbi Murray (Guardian Ad Litem) (Subject Children)

File Number(s): 2020/00242056
Publication restriction: Section 65 of the Civil and Administrative Tribunal Act 2013 (NSW) applies to these proceedings.

reasons for decision

This is an application for administrative review of a decision dated 22 April 2020 of the respondent, a designated agency under the Children and Young Persons (Care and Protection) Act 1998 (Care Act), to remove three children from the care of the applicants (the removal decision).
While the application was made outside the time period of 28 days specified in s 53(9) of the Administrative Decisions Review Act 2013 (NSW) (ADR Act) and rules 24(3)(b) and (4)(a) of the Civil and Administrative Tribunal Rules 2014 (NSW) made under the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), the Tribunal extended the time for the making of the applicant’s administrative review application to the date of lodgement, 17 August 2020 by order made on 27 October 2020: EKH v Burrun Dalai Aboriginal Corporation Inc. [2020] NSWCATAD 266.
In submissions filed on 14 December 2020, the applicants also sought administrative review of two further decisions of the respondent:

first, the respondent’s decision dated 19 October 2020 to cancel the second applicant’s carer authorisation (the cancellation decision) which is an administratively reviewable decision; and

second, the respondent’s decision dated 19 October 2020 to cancel the applicants’ ongoing contact with the subject children.

In submissions filed on 14 January 2021, the respondent acknowledged, and took no objection to, the applicant’s request for the Tribunal’s review of the cancellation decision. In paragraph 27 of its submissions, the respondent requested the Tribunal to affirm its two decisions, and the Tribunal thus understood that the respondent agreed to an increase in the scope of the application for administrative review (discussed more fully below).
Section 245(1) of the Care Act does not identify a decision about contact with a child as an administratively reviewable decision and accordingly the Tribunal has no jurisdiction to review that decision.
The applicants did not agree with the respondent’s removal and cancellation decisions. They asked the Tribunal to return the three children to their care and to reinstate the second applicant’s carer authorisation.
We have decided to affirm both the respondent’s removal decision and cancellation decision. Our reasons follow.

Prohibition order

On 5 November 2020, the Tribunal made an order under s 65 of the NCAT Act in relation to these proceedings for a decision for the purposes of the community welfare legislation within the meaning of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) (CS Complaints Act). Pursuant to that order, it is an offence to publish or broadcast, without the consent of the Tribunal, the name of any person:

who appears as a witness before the Tribunal in these proceedings; or

to whom these proceedings in the Tribunal relate, or

who is mentioned or otherwise involved in these proceedings in the Tribunal,

whether before or after the proceedings are disposed of.

For the purposes of s 65 of the NCAT Act, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
Accordingly, to give application to the above order, the names of the applicants have been anonymised to EKH (with respect to the first applicant) and EKI (with respect to the second applicant). The second applicant is also referred to in these reasons as “the carer” and the first applicant as “the carer’s husband”. Together, they are referred to as “the applicants” or “the carers”. The children who are the subject of these proceedings with respect to the removal decision are referred to as “the first child”, “the second child” and “the third child”. Their other siblings who were not permanently placed with the applicants but were in respite care with them for varying periods of time are referred to as “an older sibling” or “the baby sibling”. As an added precaution, we have omitted information that might inadvertently identify the applicants or the children. The names of witnesses who gave evidence in these proceedings and the names of various treating practitioners have also been de-identified. Where appropriate, for contextual meaning, we refer to various treating practitioners by reference to their area of practice or specialty, or administrative position within the respondent’s organisation or a government agency.

Scope of application

Removal decision

With respect to the removal decision, the carer advised the Tribunal on the last day of hearing that she accepted that the children have progressed well in their new placements and she did not seek to have them returned to her care. However, the carer subsequently altered her position and confirmed that the applicants wanted to have the children returned to their care. Adoption of the former position would clearly render their application for review of the removal decision otiose. Accordingly, for the purposes of these proceedings and our reasons, the application for review of the removal decision remains on foot, and is within scope.

Cancellation decision

As to the cancellation decision, the applicants sought to expand the scope of their application for administrative review by including a request for that to also be reviewed. This request was made informally by way of submissions, as opposed to making a formal application in the time and manner prescribed under the ADR Act and the procedural rules in the Administrative Decisions Review Regulation 2019 (NSW).
The respondent made no objection to the scope of the application for administrative review being expanded to encompass a review of both the removal decision and the cancellation decision, and asked the Tribunal to affirm both decisions. The Tribunal understood that the material on which the respondent sought to rely for the removal decision was the same or substantially the same as the material which it sought to rely upon to justify its cancellation decision, including any witnesses it proposed to call.
Noting the informality of the request to expand the scope, it is important for the purposes of procedural clarity and fairness to consider s 55(4)(b) of the ADR Act.

Sequence of events in these proceedings

The application for administrative review of the removal decision was filed on 17 August 2020. At that time, the respondent had advised the applicant by letter of 18 May 2020 that it had decided to suspend the household and suspend the second applicant’s carer authorisation (the suspension decision). The respondent’s letter advised that “An external review of this decision has now commenced at your request”. The letter also advised the applicants that they could apply to the Tribunal.
The suspension decision was an administratively reviewable decision under s 245(1)(a) of the Care Act and was, in effect, overtaken by the subsequent cancellation decision. The applicants do not appear to have sought an internal review of either the suspension decision or the cancellation decision.
The Tribunal’s decision in EKH v Burrun Dalai Aboriginal Corporation Inc [2020] NSWCATAD 266 at paragraphs [70] and [71] (the extension of time decision) noted that the carer told the Tribunal at the hearing on 22 October 2020 of her intention to apply for review of the cancellation decision.
Senior Member Lucy foreshadowed that since the application for review of the removal decision had already been filed, and the applicants had not at that stage sought an internal review of the cancellation decision, they may seek administrative review of the cancellation decision before the internal review was finalised. In those circumstances, it would be necessary to consider the relevant provisions of the ADR Act and, in particular, s 55(4)(b) of that Act.

What the ADR Act says about internal and administrative reviews

Under s 53 of the ADR Act, an interested person may apply for an internal review of the decision within 28 days of being notified of the decision: s 53(2). The respondent has 21 days after receiving an application for internal review to notify the applicants of the outcome of the internal review with reasons and must advise the applicants of the right to have the decision reviewed by the Tribunal: s 53(6). An application for administrative review of an administratively reviewable decision cannot be made unless the person has previously applied for an internal review and the review is taken to have been finalised under s 53(9) of the ADR Act. However, the Tribunal may deal with an application for administrative review even though the applicant has not duly applied for an internal review if the Tribunal is satisfied that, pursuant to s 55(4)(b) of the ADR Act, “it is necessary for the Tribunal to deal with the application in order to protect the applicant’s interest’s and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned.”

Consideration of the scope of the application

The suspension decision is relevant when looking at the overall period of time it has taken for the applicants to identify their request for review of the cancellation decision. The suspension decision was not a matter referred to in the applicants’ submissions dated 30 September 2020 in relation to their application for an extension of time. Then, on the morning of the extension of time hearing, the applicants received notification of the respondent’s decision to cancel her authorisation as an authorised carer.
In between the extension of time hearing on 22 October 2020 and the date of their submissions (14 December 2020) in these proceedings, the applicants did not seek an internal review of the cancellation decision and did not seek to amend their application for administrative review to include a review of that decision.
The applicant’s submissions that they sought review of the cancellation decision were made almost two months after the respondent’s cancellation decision on 19 October 2020.
Both parties were aware, at least at the time of the hearing on 22 October, that the applicant would be seeking a review of the cancellation decision.
Both parties were aware of the Tribunal’s decision in EKH v Burrun Dalai Aboriginal Corporation Inc [2020] NSWCATAD 266 and Senior Member Lucy’s comments at [71]:

“A likely course is that, once the Tribunal was seised of both applications for review, it would decide to deal with the application for review of the cancellation decision and the application for review of the removal decision together. Any application for review of the cancellation decision would raise similar issues to those raised in the application for review of the removal decision.”

In the above circumstances, we are satisfied that, pursuant to s 55(4)(b) of the ADR Act, it is necessary for the Tribunal to deal with the application for review of the cancellation decision in order to protect the applicants’ interests. The applicants’ advice to the Tribunal during the extension of time hearing that they intended to seek a review was made not only within a reasonable time but almost immediately following the respondent’s cancellation decision.
Accordingly, we have decided to exercise the discretion in s 55(4)(b) and review both the removal decision and the cancellation decision.

What is excluded from the scope of the review?

For completeness, we confirm that the respondent’s decision dated 19 October 2020 to cancel the application of the carer’s husband to be authorised as a carer is not an administratively reviewable decision and is not within the scope of our review.
Likewise, the applicants’ request for administrative review of the respondent’s decision dated 19 October 2020 to cancel the applicants’ ongoing contact with the subject children is not within the scope of our review. Section 245(1) of the Care Act does not identify a decision about contact with a child to be an administratively reviewable decision and accordingly the Tribunal has no jurisdiction to review that decision.

Material and evidence before the Tribunal

The applicants provided the following material to the Tribunal:

Administrative review application form filed on 17 August 2020 attaching copies of:

the respondent’s five-page removal decision dated 22 April 2020;

a one-page document comprising recommendations dated 20 March 2020 made by Ms AC (External Reviewer with qualifications BSW, MSW (Forensic Studies), AMHSW, who had been commissioned by the respondent to prepare a report to assist the respondent in determinations regarding the children, the applicants and the placement), referred to in these reasons as the Parenting Capacity Report (marked Exhibit A1),

their 24-page statement/submission filed on 14 December 2020 with 14 attachments comprising copies of:

an email of 17 February 2020 from the carer to Mr M (Clinical Psychologist) and Mr S (Social Worker and Counsellor) at the Department of Health attaching a screen shot of a message asserted to be from one of the children (the second child) to the carer using a case worker’s phone, asking to go home after being in respite care for around one month (Attachment 1);

minutes of a meeting held on 30 January 2020 between the applicants and representatives of the respondent (Attachment 2);

the Minister’s Code of Conduct for Authorised Foster, Relative and Kinship Carers (the Minister’s Code of Conduct) (Attachment 3);

email dated 25 February 2020 from Ms P (Executive Officer of Burrun Dalai) on behalf of the respondent to the carer advising that the second child was not being placed back with them at that point in time and expressing concerns about the issues in the carer’s household (Attachment 4);

email dated 2 December 2019 from the carer to [email protected] about medical appointments for two of the children, suggesting that Mr M be more involved in providing therapy for the girls (Attachment 5);

letter dated 25 October 2020 from Mr LA (Reportable Conduct Manager with the respondent) addressed to the applicants regarding the respondent’s preliminary findings concerning allegations against the applicants of sexual misconduct and neglect (Attachment 6);

Practice Update 2/2010 issued by the NSW Ombudsman titled “Reportable conduct: sexual offences and sexual misconduct” (Attachment 7);

email dated 11 December 2019 from the carer to Ms N (a caseworker with the respondent) regarding a violent incident with the second child at school, violent movies watched by the children while in respite care, various issues concerning the first child’s traumatic experience in respite care and the third child’s experience of not being collected from school (Attachment 8);

email dated 10 August 2020 from the carer to Ms D (Case Work Manager of the respondent) regarding a contact visit with the children (Attachment 9);

letter dated 19 October 2020 from the respondent to the applicants cancelling ongoing contact with the children (Attachment 10);

letter dated 19 October 2020 from the respondent to the carer cancelling her Out of Home Care Carer Authorisation (Attachment 11);

letter dated 19 October 2020 from the respondent to the carer’s husband cancelling his application for an Out of Home Care Carer Authorisation (Attachment 12);

email dated 23 January 2020 from the carer to Ms N, Mr S, Ms L and Ms TD (various officers of the respondent) regarding the second child who had left the care of the applicants for two days of respite care, together with an email response dated 24 January 2020 from Ms N to the carer (Attachment 13); and

report from Dr D addressed to Mr S of Community Health (administering NDIS programs) concerning treatment and support for the second child (Attachment 14),

(altogether, marked Exhibit A2).

The respondent provided the following material to the Tribunal:

Documents filed on 9 October 2020 pursuant to s.58 of the Administrative Decisions Review Act 1997 (NSW) comprising 33 documents of 1741 pages which included a full copy of the Parenting Capacity Report (the respondent’s Bundle) (marked Exhibit R1);

Affidavit of Mr LA, Reportable Conduct Manager for Burrun Dalai, dated 22 December 2020 (marked Exhibit R2);

Affidavit of Ms UD, Executive Officer of Programs for the respondent, made on 22 December 2020 together with Annexure A comprising a Safety House Checklist (marked Exhibit R3);

Affidavit of Ms TD, Case Work Manager with the respondent, made on 22 December 2020, together with Annexures A to H inclusive:

letter dated 6 March 2017 from the respondent addressed to the applicants regarding concerns about the safety of the children and setting out various undertakings to be followed (Annexure A);

record of financial material assistance provided to the applicants as set out in six accompanying tax invoices detailing various furniture items, cleaning, repairs and maintenance of property; (Annexure B);

record of notes made on 1 June 2017 by Ms T and emailed to Ms N, copied to Ms G and Mr WA, all officers of the respondent, concerning an incident that occurred the previous night involving the three children left unattended in the carer’s motor vehicle at a service station (Annexure C);

record regarding emergency respite care arrangements provided for all three children for three days, i.e. 3/4/5 March 2017 (Annexure D);

email dated 18 December 2020 from Ms P of the respondent to Mr B, School Principal, and Mr B’s email response dated 21 December 2020 attaching a school report concerning the second child (Annexure E);

report dated 29 September 2020 by Dr K, Paediatrician, concerning the third child (Annexure F);

report dated 29 September 2020 by Dr K, Paediatrician, concerning the first child (Annexure G); and

open reference dated 26 September 2020 provided by Mr P, School Principal concerning the third child (Annexure H),

(altogether, marked Exhibit R4);

Further material tendered during, and between, the hearing dates:

report prepared by Dr K, Paediatrician, dated 11 November 2020 concerning the second child (marked Exhibit R5);

letter from the respondent dated 2 December 2020 to the applicant setting out findings and recommendations following investigation into allegations of sexual misconduct and neglect (marked Exhibit R6);

report prepared by Mr PB, Provisional Psychologist, dated 28 October 2019 in relation to the second child (marked Exhibit R7);

report prepared by Dr M (Local Health District) dated 5 November 2020 regarding the second child (marked Exhibit R8);

Psychological Assessment Report prepared by Autism Spectrum Australia on 4 October 2017 regarding the second child (marked Exhibit R9);

Psychological Assessment Report prepared by Australian Childhood Trauma Group on 11 July 2016 regarding the second child (marked Exhibit R10);

report (comprising 4 pages) on respite care provided by the applicants to an older sibling of the three children from July 2016 until October 2018 (marked Exhibit R11);

Consult Progress Notes prepared by Australian Childhood Trauma Group on 29 May 2015 as attached to letter dated 8 January 2018 referencing an appointment for the second child on 4 January 2018 (marked Exhibit R12);

table of cross-references from numbered paragraphs in the affidavit of Mr LA (Exhibit R2) to pages in the section 58 bundle of documents (Exhibit R1) (for reference only, not marked);

document of 3 pages recording dates when the applicants provided respite care to an older sibling of the children (marked for identification as Exhibit R13)

respondent’s chronology of dates and events relating to the removal of the children (for reference only, not marked);

respondent’s chronology of dates and events relating to the decision to cancel the carer assessment for the carer’s husband (for reference only, not marked);

Report of Ms B, Psychologist, dated 22 October 2019 re the first child (marked Exhibit R14);

The Minister’s Code of Conduct tendered on 2 July 2021 (marked Exhibit R15);

Burrun Dalai Foster Carers Code of Conduct of Authorised Kin, Relative and Fosters Carers (the BD Code of Conduct), tendered on 2 July 2021 (marked Exhibit R16);

written submissions filed on 14 January 2021;

written closing submissions filed on 9 July 2021 (after the final hearing date in compliance with directions).

The Tribunal heard oral evidence from the following:

the carer and the carer’s husband;

Mr LA, Manager of the Reportable Conduct Unit for the respondent;

Ms UD, Executive Officer of Programs for the respondent;

Ms TD, Case Work Manager for the respondent;

Ms C, Chief Executive Officer of the respondent.

The task for the Tribunal

Under s 63(1) of the ADR Act, the Tribunal’s task is to determine whether the respondent’s decisions to remove the children from the care of the applicants and its decision to cancel the second applicant’s carer authorisation were the “correct and preferable decisions”, having regard to the material before it and any applicable written or unwritten law. In determining these matters, the Tribunal may exercise all of the functions that are conferred or imposed by the relevant legislation on the administrator who made the decision: s 63(2) of the ADR Act. The time at which the determination is to be made as to the correct and preferable decision is the date and time that the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].
In considering an application for review, the Tribunal is not constrained to have regard only to the material that was before the respondent but may have regard to any relevant material before the Tribunal at the time of its review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. In this regard, in undertaking this review, the Tribunal had before it the submissions and evidence from both parties as well as the evidence of the Guardian ad Litem on behalf of the children.
In determining the application, the Tribunal may, with respect to each of the removal decision and the cancellation decision, affirm the respondent’s decision, vary the decision, set aside the decision and make another decision in substitution for the decision set aside, or set aside the decision and remit the matter for reconsideration by the respondent in accordance with any directions or recommendations of the Tribunal: s 63(3) of the ADR Act.
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: s 38 of the NCAT Act.
The standard of proof is on the balance of probabilities. The High Court of Australia decision in Briginshaw v Briginshaw [1938] HCA 34 is relevant in determining whether the burden of proof, on the balance or probabilities, has been achieved.

Issues to be considered

The respondent filed a large volume of material comprising many hundreds of pages which, though numbered, were not well arranged into clear categories reflecting the issues of concern on which its decisions were said to be based.
The removal decision contained approximately 24 paragraphs that were not numbered, and articulated a number of reasons why the respondent decided to not return the children to the carers.
The cancellation decision expressed the respondent’s reasons in general terms, identifying three broad areas of complaint. Whilst it was not specified in the cancellation decision itself, in final written submissions made on behalf of the respondent the decision was said to have been made in accordance with s 42(2) of the Children and Young Persons (Care and Protection) Regulation 2012 (Care Regulation). We have proceeded to determine this matter on the basis that this submission was intended to be a reference to s 42(a) of the Care Regulation (consistent with other submissions made on behalf of the respondent), i.e. that the respondent is of the opinion that the carer is no longer a suitable person to be an authorised carer. Additionally, the respondent relied upon the oral evidence of Burrun Dalai’s Chief Executive Officer, that the carer had breached the Ministerial Code of Conduct and BD’s Code of Conduct.
For the purpose of these reasons, we have proceeded to determine the application on the basis that the respondent relies upon substantially the same material filed in these proceedings to justify both its removal decision and its cancellation decision.
The applicants provided their response to the issues raised by Burrun Dalai and, additionally, submitted that they had not been given:

adequate training; or

sufficient respite care relief.

In particular, the argued that their request for training in restrictive hold practices had not been met. They also contended that the respondent had relied heavily upon them to provide respite care, sometimes at short notice, and that the applicants took on those additional responsibilities without a great deal of support from the respondent.
Having regard to the above, we consider that the key issues of relevance in these proceedings are:

the carers’ ability to correct and manage the children’s challenging behaviours and implement recommended strategies to meet their complex needs;

the carers’ ability to regulate and control their own emotions and cope with the responsibilities of caring for children with complex needs and challenging behaviours;

the cleanliness, safety and hygiene in the home (which is also connected to an assertion that there was a lack of supervision of the children);

the carers’ alleged disengagement from offers of support, including their election to refuse to participate in the IFBS Stepdown program in circumstances where case notes indicate that caseworkers considered the girls were still at risk in the home;

reportable conduct issues including the YouTube issue, sexual misconduct allegations and allegations of neglect associated with a lack of supervision;

whether the carers received adequate training;

whether the carers received adequate support and access to respite care;

whether the carers breached the Minister’s Code of Conduct;

whether the carers are suitable persons to be authorised carers; and

the views of the children on their placement and assessment of their welfare and well-being.

Background and overview

In this section we generally review the arrangements between the parties from 2012 until the removal and cancellation decisions were made. A more detailed analysis of the 12-month period leading to the removal decision is included under the heading “Consideration”, to give more specific context for our consideration of issues 1, 2, 3 and 5.
The respondent is the Out of Home Care Agency that has day-to-day case management and responsibility for the care of the three sibling children who were placed in the care of the applicants and subsequently removed from them.
The three children are subject to an order whereby the Parental Responsibility for them is allocated to the Minister until such time as each child attains the age of 18 years.
The second applicant was authorised as a carer for the respondent in 2012. The carer’s husband did not complete his application to be authorised as a carer and was therefore never authorised as a carer. However, he was approved as a household member and is a person having a genuine concern in the subject matter of the decision under review: s 29(1) of the CS Complaints Act.
The applicants met on Facebook in 2012 and met in person on 22 April 2012. Shortly after the children were placed with the carer, she and the first applicant started cohabiting and married approximately two years later, in September 2014. The carer’s husband does not have any biological children but was previously a stepfather. The carer has two daughters who are now adults. In addition to having the care of the three children (and having other siblings of the children in respite care with them), the carer worked from home as a nail technician and the carer’s husband worked in the retail industry. At some time during 2014 the carer experienced a heart attack and underwent a quadruple bypass. During the course of these proceedings, the carer’s husband suffered a stroke, requiring an adjournment of the further hearing that had been set down for 10 and 11 May 2021. However, he attended the hearing on 1 and 2 July 2021 after a period of hospitalisation and appeared to have made a good recovery apart from suffering some short-term memory loss. He planned to return to his employment in retail. During the course of the proceedings the carer applied for, and obtained, employment with a Commonwealth government agency which offered flexible hours.
The first child (at almost 3 years of age) and the second child (at around 18 months in age) were placed with the second applicant as the authorised carer and the carer’s husband (as an approved household member), on 21 June 2012. Shortly after that date, on 16 July 2012, the third child (at around 2 months in age) was also placed with them. All three girls remained in the placement with the applicants as a core family unit until early 2020, a period of just under eight years.
The carer’s own two daughters also resided with them, at least for a number of years. The three siblings placed in the care of the applicants called them ‘mum’ and ‘dad’. At the time of the removal decision, the children had two older sisters, an older brother and a baby sister however, due to the high number of children and their varying needs, a full sibling placement could not be identified.
In a letter dated 22 December 2014 (around two and a half years after placement of the three children with the applicants), the respondent formally advised the second applicant that she had been accepted as an authorised foster carer for Burrun Dalai (the appointment letter), having successfully completed her assessment and initial training. The appointment letter and advised her that:

as an authorised carer she must comply with the code of conduct for authorised carers (attached to the appointment letter) (Minister’s Code of Conduct) as required under s 34 (4) of the Care Regulation;

the following conditions applied to her authorisation:

“Carer has been authorised and assessed suitable to provide care for 3 children (boys or girls) less than 12 years of age for short or long term placements and in need/crisis respite placements for children and young people up to 18 years of age.”

On 24 December 2017 (Christmas Eve), an older sibling to the three children was placed with the applicants after attacking her previous carer. The precise nature of this placement with the applicants is not clear having regard to the conditions attaching to the carer’s authorisation. However, the older sibling stayed with the carers for approximately 2 years until a violent disturbance involving the second child and the older sibling resulted in the carers demanding that the placement of the older sibling come to an end.
Early in the New Year in 2019, a younger sister (the baby sibling) who was around 7-8 months in age at the time was also placed in respite care with the applicants. The original plan was for the baby to be in their care for 3 weeks; however she stayed for approximately 10 months. This placement ended on 31 October 2019 when she was 17-18 months old, after Burrun Dalai made a decision to reduce the number of children in the household so the carers could focus on the other children with complex needs.
All three children were diagnosed with a number of conditions in varying degrees, summarised below:

Child

Diagnoses

First child

Autism spectrum disorder (ASD) – Level 1

Attention Deficit Hyperactivity Disorder (ADHD)

Sleep difficulties

Anxiety

Second child

ASD – Level 3 (requires very significant support)

ADHD

Reactive Attachment Disorder (developmental trauma)

Oppositional Defiance Disorder (ODD)

Acute Traumatic Stress Disorder (ATSD)

Innocent heart murmur

Borderline intellectual ability

Difficulty in sleep initiation

Sleep difficulties

Short stature (probably familial)

Third child

ADHD

ODD

The children were under the care of a number of clinicians and therapists including a paediatrician, a psychiatrist, psychologists, a speech pathologist, a specialist in literacy and numeracy, and social workers. The second child, who unfortunately suffered a greater number of diagnoses, was assessed at the age of 5 by a psychologist with the Australian Childhood Trauma Group (11 July 2016). This child was also assessed on 4 October 2017 by Autism Spectrum Australia (ASPECT) and the applicants were recommended to attend a 3-day ‘Recipe for Success’ positive behaviour support workshop run by ASPECT. Then, on 24 January 2018, the child was re-assessed by the Australian Childhood Trauma Group. Her behaviours were to be managed under a Healing Pathways Plan dated 28 October 2019.
As a general comment, the first five years from mid-2012 to early 2017 appear to have been uneventful. Other than pro-forma letters sent to all carers and administrative matters concerning the applicants, the s 58 Bundle of documents contains very little information that raise issues of concern about the placement or the carer’s suitability in those first five years. As a matter of routine practice, it appears that the respondent conducted annual case review meetings for each of the children, and significant persons involved in their lives (including their biological parents) were invited to participate in the decision-making processes on how to best meet the children’s needs over each ensuing 12-month period, after reviewing their progress during the previous year. The respondent also arranged for the children to have contact visits with their biological parents from time to time.
In March 2017, the respondent required both applicants to enter into undertakings for safety of the children (the Undertakings). One of the undertakings required the applicants to participate in the 12-week Burrun Dalai Intensive Family Based Services (IFBS) program. The IFBS program was designed to provide support to carers to assist them in developing a routine structure for the household, assist with parenting skills, maintaining a safe property and administering medications to children. The applicants completed the program from March to August 2017 and declined to complete another 12-week Stepdown Program designed to further consolidate the skills required to develop routines for the children, manage their challenging behaviours, manage the household and monitor and manage safety issues.
Part-way through the initial 12-week phase of the IFBS program, two incidents occurred upon which the respondent sought to rely (amongst other matters) when making its removal and cancellation decisions:

First, the carer left the children (including an older sibling) unattended in a motor vehicle which rolled into two other vehicles at a car wash while she paid for the wash (the motor vehicle incident). The carer could not recall whether she had left the vehicle in first gear or whether she had failed to put the hand brake on. The second child hurt her hand, and the respondent’s internal correspondence about this incident (Annexure C to R4) noted that the second child was observed to have a “big ringworm” on her wrist and that the first child had been observed to have lice eggs in her hair causing her to scratch which interfered with her concentration and speech therapy;

Second, the casework notes (p 478 of R1) disclose that the children made comments to caseworkers that they had watched horror movies at home. The carer responded that her husband let them watch a few “B grade” horror movies and that this would not occur again. This matter became the subject of a reportable conduct investigation.

In October and December 2018, approximately six and a half years after being placed with the applicants, the second child was assessed by Dr D (child psychiatrist), due to her escalating behaviours. Dr D saw the second child again in June 2019. At that time, the child was aged 8 and presented with markedly more distress, verbal and physical aggression and had endangered herself on 3-4 occasions since February 2019. Dr D commented:

“The strain on [the second child’s] relationship with her foster mother is painful and striking, also in the context that there is clearly a significant connection and care between them despite this.”

The documentation in R1 discloses several incidents involving the second child’s behavioural issues and distress in the months of February, March, April, May, June, July, August, September, October, November, and December 2019. The incidents were of varying intensity and culminated in a critical incident on 23 January 2020 which precipitated the child being placed in respite care and then not returned to the care of the applicants.
The sequence of escalating behaviours in the 12-month period prior to the removal of the second child created stress in the household, and is discussed in more detail under “Consideration” (sub-heading “Events in year preceding the critical incident”).
One of the most disturbing incidents concerned the second child possibly experiencing physical and sexual harm while in respite care in February 2019 from an older teenage boy who resided with respite carers (the sexual assault allegation) which was the subject of multiple reports from various sources over some months.

On 2 September 2019, the respondent received a report that while the children were in respite care they showed videos of themselves on YouTube to their respite carers. It was alleged the videos contained sexualised content, where at least one child was naked and the footage focused on the children’s genitalia (p 1558 of R1). The first respondent was asked to remove the videos on a number of occasions before this was achieved. This incident became the subject of a reportable conduct investigation, along with other issues of concern.
On 23 January 2020, the carers made a number of after-hours phone calls to caseworkers, after another significant traumatising incident involving the second child (the critical incident) which ultimately precipitated the respondent’s decision to not return the child to the placement The carers said they had had enough of being abused, hit and having things thrown at them. They complained that the second child gave them no respect and that the other children were frightened of her. The carer was crying, saying she couldn’t do this anymore and the carer’s husband was yelling out loudly that “enough is enough come and get her”. The carer said that the strategies didn’t work and that she had said this before. The caseworker visited the home, observing it was a total mess with things thrown everywhere, dirty dishes in the sink, the dining table full of dishes and food. The carer’s husband apologised to the caseworker for yelling and for saying “come and get this girl NOW”. The caseworker asked whether the carers were giving up caring for the second child and they said they simply needed some respite care.
While the second child was in respite care, further reports were received by the respondent about the girls’ placement with the applicants. One of those reports made on or around 5 February 2020 arose from a disclosure by the older sibling who had been removed from the placement on Boxing Day 2019, that the third child was naked in bed with the applicants (p 1400 of R1). This allegation also became the subject of a reportable conduct investigation.
Burrun Dalai officers decided to not return the child at the end of the respite care period (initially planned for two nights) and told the applicants at the end of January 2020 that several things needed to occur before she could be returned. This included a current behavioural management plan and a parenting capacity report being obtained. The respondent then advised the applicants on 25 February 2020 that the second child would not be placed back with them at that point in time (p 1476 of Exhibit R4).
On 13 March 2020 the first and third child went into respite care for a planned stay of four nights. Whilst in respite care, the two girls made various disclosures to the respite carer which were reported to the respondent. On 17 March 2020, the respondent informed the applicants that there had been a risk of serious harm (ROSH) report made and the two girls would not be returning to them, pending an investigation.
The applicants participated in an interview on 23 March 2020 regarding the allegation that the third child slept in bed with them while they were naked (pp 1424-1427 of R1). This allegation was strongly refuted by the applicants. They acknowledged that the third child came into their bed 4-5 nights per week, and slept in her own bed 1 or 2 nights if she received a reward. The applicants were adamant that the child never slept under the covers and that they put her back into her own bed once she had fallen asleep. The carer said during the interview that she refused to do IFBS again.
To assist the respondent in its determination regarding the children, the carers and the placement, Ms AC (the first consultant) was engaged to conduct a strengths and needs assessment. The first consultant conducted a face-to-face interview with the carer and in the course of that interview, had an opportunity to observe the children and their interaction with the carer. The first consultant provided her Parenting Capacity Report dated 20 March 2020 and made a number of recommendations, including that the second child be returned to the placement.
Despite the recommendations in the Parenting Capacity Report, the respondent decided on 14 April 2020 to not return the children to the placement. The respondent had a ‘Zoom’ meeting with the applicants on Friday, 17 April 2020 to discuss its decision that none of the children would be returned to their care. The respondent’s decision to not return the three girls to the applicant’s care was then set out in its letter of 22 April 2020.
The applicants did not agree with the respondent’s decision and asked for it to be reviewed. The respondent engaged the services of an independent consultant (the second consultant) who interviewed the CEO, the Reportable Conduct Manager and two other officers of Burrun Dalai. The second consultant was instructed to not conduct formal interviews with the carers, children or other third parties. In essence, the second consultant was asked to “ascertain the rationale for the decision”, which appears to have been an exercise in assessing the evidentiary basis for the removal decision.
The second consultant’s report dated 29 June 2020 examined a number of issues and analysed the respondent’s decision in terms of Burrun Dalai’s relevant policies, the Minister’s Code of Conduct, the Care Act, the Care Regulation and the Office of the Children’s Guardian’s “NSW Child Safe Standards for Permanent Care”. By way of “recommendations”, the second consultant concluded that the evidence provided for the purpose of the report appeared to support the respondent’s decision. Additionally, the second consultant concluded that the carer had attended training on both the Minister’s Code of Conduct and the BD Code of Conduct, and that she had signed the Carer Code of Conduct annually since becoming a carer.
The respondent maintained its decision to not return the children to the applicants’ care.
Before the second consultant’s report was available, the respondent wrote to the carer on 18 May 2020 to advise her that it had decided to suspend her carer authorisation/household.
A copy of the second consultant’s report was provided to the applicants on 30 June 2020 and, as noted previously, they applied to the Tribunal on 17 August 2020 for administrative review of the removal decision.
By letter dated 15 October 2020, the respondent advised the applicants of its preliminary findings following investigation of allegations of sexual misconduct and neglect against the applicants (a reportable conduct investigation pursuant to s.25A of the Ombudsman Act 1974 (NSW) (repealed) and the Children’s Guardian Act 2019 (NSW) (CG Act)). The respondent advised that the preliminary findings could result in recommendations that the children would not be returned to the care of the applicants. It was not explained as to why the preliminary findings letter was expressed in this way given that the respondent had already issued its letter of 22 April 2020 (the removal decision).
The preliminary findings letter also advised that the carer’s authorisation with the respondent agency could be reviewed. Again, it was not explained as to why the letter was expressed in this way since the respondent had already issued its letter of 18 May 2020 suspending the carer’s authorisation.
The respondent gave the applicants an opportunity to provide information by 5 November 2020 and advised that if no further information was provided the respondent would finalise the matter and provide a Final Letter.
By letter dated 19 October 2020 (i.e. before the date by which the applicants were permitted to provide information), the respondent advised the second applicant that her Carer Authorisation had been cancelled pursuant to the Care Regulation 2012.
Also by letter dated 19 October 2020, the respondent advised the first applicant that his Carer Application had been cancelled pursuant to the Children and Young Persons (Care and Protection) Regulation 2012 for the same reasons that it had cancelled the second applicant’s carer authorisation. As previously noted, this is also not a matter in which the Tribunal has jurisdiction to review.
Further, by letter dated 19 October 2020 the respondent advised the applicants that their ongoing contact with the children who had been placed with new carers had been cancelled in the best interests of the children. This is also not a matter in which the Tribunal has jurisdiction to review.
On 2 December 2020, the respondent issued its Final Letter advising the applicants of the reportable conduct findings (Exhibit R6).

Applicable legal framework and principles

The Care Act and the CG Act are both protective in nature. The Care Act is described as an Act to provide for the care and protection of, and the provision of services to, children and young persons (and for other purposes). The CG Act is described as an Act to provide for, among other things, the safety, welfare and wellbeing of children.

Jurisdictional matters and definitions

In this matter, the respondent is a designated agency as defined in s 72 of the CG Act and is the designated agency that authorised the second applicant to be an authorised carer.
Section 245(1)(c) of the Care Act provides that a decision of the “relevant decision-maker” to remove from an authorised carer the responsibility for the daily care and control of the child is an administratively reviewable decision.
Section 245(1)(a) of the Care Act provides that a decision of the “relevant decision-maker” to suspend a person’s authorisation as an authorised carer is also an administratively reviewable decision.
Section 245(1)(a1) of the Care Act provides that a decision of the “relevant decision-maker” to cancel a person’s authorisation as an authorised carer is, likewise, an administratively reviewable decision.
The term “relevant decision-maker”, in relation to a decision pursuant to s 245(1) of the Care Act, means the person or body authorised by or under the Care Act or the regulations to make the decision, not being the Children’s Court.
Pursuant to s 7 and s 9 of the ADR Act, this Tribunal has jurisdiction to review the administratively reviewable decisions mentioned above. In these reasons, we are not required to review the respondent’s decision to suspend the carer’s authorisation, as it has been overtaken by the cancellation decision.
Section 28(1)(a) of the CS Complaints Act provides that a person may apply to this Tribunal for an administrative review under the ADR Act of any decision that is administratively reviewable under s 245 of the Care Act. As already confirmed by the Tribunal’s decision in EKH v Burrun Dalai Aboriginal Corporation Inc. [2020] NSWCATAD 266, the carer as the authorised carer was entitled to apply to the Tribunal for administrative review of the respondent’s decision to remove the children from her care. The carer’s husband was also entitled to apply pursuant to s 29(1) of the CS Complaints Act, being a person who has a “genuine concern in the subject-matter of the decision concerned”.

Objects of the Care Act

The objects of the Care Act are set out in s 8:

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.

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.
Subject to that paramount concern, the Care Act sets out other principles to be applied in the administration of the Act. These are found in ss 9(2), 10 and 10A of the Care Act. Sub-sections 11, 12 and 13 in Part 2 of the Care Act contain principles to be applied with respect to Aboriginal and Torres Strait Islander people.
Relevantly for the purposes of these proceedings, the principles in s 9(2) of the Care Act are set out below:

(2) Subject to subsection (1), the other principles to be applied in the administration of this Act are as follows—
(a) Wherever a child or young person is able to form his or her own views on a matter concerning his or her safety, welfare and well-being, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child or young person and the circumstances.
(b) In all actions and decisions made under this Act (whether by legal or administrative process) that significantly affect a child or young person, account must be taken of the culture, disability, language, religion and sexuality of the child or young person and, if relevant, those with parental responsibility for the child or young person.
(c) 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. [Tribunal’s emphasis and discussed in more detail below]
(d) If a child or young person is temporarily or permanently deprived of his or her family environment, or cannot be allowed to remain in that environment in his or her own best interests, the child or young person is entitled to special protection and assistance from the State, and his or her name, identity, language, cultural and religious ties should, as far as possible, be preserved.
(e) If a child or young person is placed in out-of-home care, arrangements should be made, in a timely manner, to ensure the provision of a safe, nurturing, stable and secure environment, recognising the child’s or young person’s circumstances and that, the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement.
(f) If a child or young person is placed in out-of-home care, the child or young person is entitled to a safe, nurturing, stable and secure environment. Unless it is contrary to his or her best interests, and taking into account the wishes of the child or young person, this will include the retention by the child or young person of relationships with people significant to the child or young person, including birth or adoptive parents, siblings, extended family, peers, family friends and community.
(g) If a child or young person is placed in out-of-home care, the permanent placement principles are to guide all actions and decisions made under this Act (whether by legal or administrative process) regarding permanent placement of the child or young person.

Objects of the CG Act, paramount consideration and guiding principles

The main object of the CG Act is stated in s 6:

6 Main object of Act
The main object of this Act is to protect children by providing for the role and functions of the office of the Children’s Guardian, including—
(a) promoting the quality of organisations and persons providing services to children, and
(b) regulating those organisations and persons in providing those services.

Section 7 of the CG Act mirrors s 9(1) of the Care Act, and also includes the protection of children from child abuse as a paramount consideration when making decisions under the CG Act:

7 Paramount consideration
The safety, welfare and wellbeing of children, including protecting children from child abuse, is the paramount consideration in decision-making under this Act and the regulations and in the operation of this Act and the regulations generally.

A number of guiding principles apply in administering the CG Act and these are set out in s 8 of that Act:

8 Guiding principles
The guiding principles to be applied in administering this Act and the regulations are—
(a) if a child is able to form views on a matter concerning the child’s safety, welfare and wellbeing—
(i) the child must be given an opportunity to express the views freely, and
(ii) the views are to be given due weight in accordance with the developmental capacity of the child and the circumstances, and

(b) in all actions taken and decisions made under this Act and the regulations that significantly affect a child, account must be taken of the culture, disability, language, religion, gender identity and sexuality of—
(i) the child, and
(ii) if relevant, the person with parental responsibility for the child, and

(c) in deciding what action is necessary to protect a child from harm, the course to be followed must be the least intrusive intervention in the life of the child and the child’s family that is also consistent with the paramount consideration, [Tribunal’s emphasis and discussed in more detail below] and
(d) in decision-making under this Act and the regulations and the investigation or monitoring of persons, the Children’s Guardian must observe the principles of natural justice and ensure procedural fairness, and
(e) in decision-making under this Act and the regulations in relation to an Aboriginal child or a Torres Strait Islander child, the Aboriginal and Torres Strait Islander Child and Young Person Placement Principles set out in section13 of the Children and Young Persons (Care and Protection) Act 1998, and
(f) if a child is placed in out-of-home care, the child is entitled to a safe, nurturing, stable and secure environment.

Least intrusive intervention

When determining the course of “least intrusive intervention” in order to protect a child from harm, the decision in DWA v Veritas House [2020] NSWCATAD 40 at [26]-[27] provides guidance:

“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”: Dept of Community Services v Rachel Grant”, “Tracey 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].
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.”

The respondent directed the Tribunal to the decision in Re Tracey [2011] NSWCA 43 where the NSW Court of Appeal also considered the application of the “least intrusive intervention” principle. Their honours Spigelman CJ, Beazley and Giles JJA at [75] considered the principle to be ambulatory in the sense that its application will vary from case to case. With reference to the decision of Forster J in Re Louise and Belinda [2009] NSWSC 534 at [53]-[54], their honours said the principle could apply to the circumstances where it may well be best for a child to be cared for by his or her natural parents. Equally, the principle would have application in the sense that “the least intrusive form of intervention would normally mean not interfering with existing care arrangements.”

Out-of-home care under the Care Act and the CG Act

Both the Care Act and the CG Act contain provisions concerning “out-of-home care”, defined in s 135 of the Care Act to mean:

residential care and control of a child or young person that is provided—
(a) by a person other than a parent of the child or young person, and
(b) at a place other than the usual home of the child or young person,
whether or not for fee, gain or reward.

Chapter 8 of the Care Act provides a model for the organisation of out-of-home care. Its objects are set out in s 134:

134 Objects of this Chapter
The objects of this Chapter are—
(a) to create a high standard in the provision of out-of-home care, and
(b) to provide a model for the organisation of out-of-home care, and
(c) to clarify the roles and responsibilities of those involved in the provision of out-of-home care.

Only an authorised carer can provide statutory out-of-home care: s 136 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”.
The conditions of authorisation are set out in clause 34 of the Children and Young Persons (Care and Protection) Regulation 2012 (NSW) (the Care Regulation).

Authorisation of individual as an authorised carer

Under clause 30(4) of the Care Regulation, a designated agency must not authorise an applicant to be an authorised carer unless the agency has determined that the applicant is capable and suitable.

Assessment of suitability of a person to be an authorised carer

Clause 30(5) of the Care Regulation sets out the matters to be considered in determining that an applicant is capable and suitable to be authorised as an authorised carer:

(5) A designated agency must not determine under subclause (4) that an applicant is capable and suitable to be authorised as an authorised carer unless—
(a) the applicant has furnished to the agency such information as the agency may reasonably require in order to assess the applicant’s capability and suitability to be an authorised carer, and
(b) the agency is satisfied that the applicant and any adult residing on the same property as the applicant have complied with the requirements of the Child Protection (Working with Children) Act 2012 for engaging in child-related work as an authorised carer, and
(c) the agency has obtained or conducted the suitability assessments of the applicant and persons that reside on the same property as the applicant in accordance with this clause and Schedule 2 and has determined that the result of each element of the assessment is satisfactory, and
(d) the applicant has completed to the satisfaction of the agency any education or training required by the agency, and
(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.

Code of conduct for authorised carers

Clause 3 of the Care Regulation defines the code of conduct for authorised carers as “the code of conduct 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.” (Minister’s Code of Conduct)

Compliance with the Minister’s Code of Conduct is a condition of authorisation

Under clause 34(4) of the Care Regulation, it is a condition of an authorisation that the authorised carer must comply with the Minister’s Code of Conduct. Failure to comply with the Minister’s Code of Conduct is a ground for suspension and cancellation of a carer’s authorisation: clause 42(b) of the Care Regulation.

Correcting and management the behaviour of children

Clause 41 of the Care Regulation sets out the obligations for an authorised carer and the designated agency in correcting and managing the behaviour of a child or young person:

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.

Cancellation or suspension of carer authorisations

Under clause 42 of the Care Regulation, a designated agency may cancel or suspend the authorisation of an authorised carer for the following reasons:

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.

Reportable conduct

Significant sections of the CG Act commenced on 1 March 2020, including those relating to reportable conduct allegations, previously dealt with by the Ombudsman under s 25A of the Ombudsman Act 1974 (NSW) (repealed).
Under s 20 of the CG Act, “reportable conduct” is defined to mean the following conduct, whether or not a criminal proceeding in relation to the conduct has been commenced or concluded:

a sexual offence,

sexual misconduct

ill-treatment of a child,

neglect of a child

an assault against a child,

an offence under section 43B or 316A of the Crimes Act 1900,

behaviour that causes significant emotional or psychological harm to a child.

The respondent’s case

The removal decision

The removal decision as set out in the respondent’s letter of 22 April 2020 was signed by the CEO of Burrun Dalai. While the letter contained some repetitive phraseology, it explained that the decision to not return the three children to the placement was based on a conglomeration of things and not just one incident. The decision was based on “a history of caring that have raised serious issues and professionals voicing their concern for the girls’ safety.”
The respondent contended that:

the carers had received adequate training and support;

the carers were more interested in receiving increased services rather than implementing the recommended strategies provided to them;

the carers disengaged from supports offered to them;

the carers had benefited from receiving adequate respite care on a regular basis;

the carers were increasingly demonstrating their inability to both cope with, and manage, the children’s complex needs;

the reportable conduct investigation substantiated four out of six allegations made against the carers (as detailed below);

the carers had breached the Minister’s Code of Conduct (which is a condition of authorisation as a carer) in a number of respects as well as the BD Code of Conduct;

the carers were no longer suitable persons to be authorised carers.

The respondent submitted that the evidence (as presented in the s 58 Bundle, affidavits and oral evidence of its officers) justified its decision to not return the children to the placement.

Cancellation decision

The cancellation decision as set out in the respondent’s letter of 19 October 2010 was made pursuant to the Care Regulation (without specific detail). The reasons for cancellation were said to be due to the high number of ROSH reports received about the provision of care for the children, internal and external agency concerns, and the findings of the Reportable Conduct Investigations.

Code of Conduct breaches

It was submitted that the carers had failed to comply with various provisions in the Minister’s Code of Conduct, namely:

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 range of age and developmentally appropriate social and recreational activities and experiences

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

Take appropriate measures, with support and assistance from the designated agency, to promote the physical, cognitive and psychological recovery, rehabilitation and social reintegration of persons with disabilities who become victims of any form of exploitation, violence or abuse

Ensure the child or young person’s health, wellbeing and dental needs are met and any planned intervention is carried out.

It was also submitted that the carers failed to comply with various provisions in the BD Code of Conduct, namely:

A carer will ensure that the carer’s home and its surroundings are kept safe, clean and in good repair, and also, to ensure that the home is properly ventilated, lit and heated in line with Burrun Dalai’s Care Environment and Health policies

The health, welfare and progress of the child or young person is promoted

Ensure that a child or young person in their care is supplied with such medical and dental treatment as is required or requested in line with Burrun Dalai’s Health policy

A carer will ensure that a child or young person in his or her care is given positive guidance towards socially acceptable behaviour, and is not subjected to or threatened with:

Any form of corporal punishment or smacking

Any punishment that takes the form of immobilisation or force feeding

Any punishment that is intended to humiliate or frighten the child or young person.

Reportable conduct allegations and findings

The respondent investigated six reportable conduct allegations made against the carers, and found that four were substantiated. The remaining two allegations were not substantiated. The findings were advised to the carers by letter dated 2 December 2020 and are set out in the table below:

Nature of conduct

Allegation

Finding

Sexual misconduct

Videos of a sexualised nature on YouTube

Substantiated

Sexual misconduct

Carers alleged to have had the third child in the bed naked with them while on top of each other and encouraged the first child to take her clothes off and get into the bed naked with them

Not substantiated

Sexual misconduct

Second child was told by carers she could sleep naked

Substantiated

Neglect – lack of supervision

Second child sleeping with cats overnight

Not substantiated

Neglect

Allowing the children to watch violent and scary movies

Substantiated

Neglect – lack of supervision

Second child threatening other children in the house with a knife

Substantiated

Respondent’s witness evidence

The respondent relied upon the affidavits and oral evidence of the Reportable Conduct Manager, the Executive Officer of Programs (including the IFBS program), and the Case Work Manager. Additionally, the CEO attended to give oral evidence on the last day of hearing.
The Reportable Conduct Manager’s affidavit referenced numerous reports and disclosures about the carers and the children, the most significant being those concerning:

the sexual assault allegation involving the second child while in respite care;

the YouTube videos and the second child searching for sexually explicit videos;

dangerous and threatening behaviour of the second child grabbing knives and threatening to harm the carers and children in the household;

the carer stating that she was going to have another heart attack or mental health breakdown and that she does not know what to do with the second child’s violent behaviour;

the safety of the second child absconding from school and almost being hit by a car, absconding from home and being in a situation of danger near and on a highway, sleeping outside at night, exhibiting sexualised behaviours with an older brother and making drawings of a sexual nature;

the children watching scary horror movies;

the first and third children allegedly being naked in bed with the carers and the second child reporting that her carers allow her to sleep naked and promised that they would have one night when they sleep naked together.

Under cross-examination, Mr LA conceded that paragraphs 7, 8, 9, 10, 11, 12, 13, 14 and 15 of his affidavit did not concern allegations against the carer. However, he said that the reports of the second child absconding from school, and endangering herself and others created a bigger picture about risk and behavioural issues, and was a reflection of what was occurring in the placement, matters which are taken into account when undertaking a reportable conduct investigation.
Mr LA’s evidence was that the majority of reports concerned incidents that occurred in the care of the applicants or were residual issues. He said that a ROSH concern does implicate the household.
With respect to the sexual assault allegation against the carer’s nephew, Mr LA said that he could not comment on that investigation which also involves the Department of Communities and Justice (DCJ).
When questioned about whether any reports had been received since the first and third children left the placement, Mr LA’s evidence was that there had been reports concerning residual trauma from the placement with the applicants. He also said that no reports about the children’s current placement had been received.
The second applicant challenged Mr LA on the inclusion of paragraph 18 in his affidavit referring to the children looking through the carers’ social media profile and seeing videos that were sexually explicit in nature, arguing that the carers had put protections in place to block the children’s access to the internet. He was of the view that these behaviours reflected what was happening in the carers’ home.
When challenged on the inclusion of paragraph 19 concerning the second child absconding from school and nearly being hit by a car and sleeping at school, Mr LA answered that these behaviours were a reflection of the care provided to her.
On the subject of the videos of the children uploaded to YouTube in 2013, the second applicant asked why it had taken so long for the matter to be investigated. Mr LA explained that reports of a sexual nature are referred to the Joint Child Protection Response (JCPR) team and matters are referred to DCJ and other agencies to follow up.
The affidavit of Burrun Dalai’s Executive Officer of Programs (including the IFBS program) described a number of safety issues that were required to be rectified and risks including the children having unsupervised access to the internet. Her affidavit said that:

the goals of the IFBS program were achieved, however the applicants refused to complete a further 12-week program to further improve their skills and accept further support;

the children’s bedrooms were consistently untidy and smelly, beds were unmade and toys were not put away, and the house smelt of urine;

the children did not acknowledge or respond to discipline from the applicants who appeared to not have the skills required for managing the children’s poor behaviours;

the second and third child sneak into the carers’ bed at night and are not returned to their own beds where they should be sleeping;

the children were vulnerable in the placement and the carers’ insight into the children’s behaviour did not seem to improve throughout the IFBS program.

The Case Work Manager’s oral evidence was clear and convincing. Her affidavit comprehensively dealt with almost every issue of concern, with information corroborated by contemporaneous case notes and evidentiary documents including:

the critical incident involving the second child and, in particular, the desperate emotional state of the carers;

the carer’s emotional capacity, her alleged inability to control and regulate her own emotions and her inability to put her own feelings aside in the best interests of the children;

the carer’s alleged inability to manage the children’s challenging behaviours;

the training that was provided to the carers;

the carers’ alleged inability to maintain a cleanliness and hygiene in the home;

the safety of the children, with respect to medications, sleeping arrangements, broken glass, household rubbish, lack of supervision, unsupervised internet access;

an alleged lack of supervision;

an alleged failure to engage with supports offered;

alleged medical neglect;

alleged sexual abuse/misconduct associated with the YouTube videos.

The CEO’s oral testimony was clear and unequivocal. On the issue of the composition of the family, Ms C told the Tribunal that the baby sibling was only on a short-term placement with the carers, which is normally a period of two years, subject to availability of carers. Ms C acknowledged that, with the benefit of hindsight, the placement of the baby sibling with the carers was not a good decision.
With respect to the placement of the older sibling with the carers for two years, Ms C said that in circumstances where children are disenfranchised from their family, it is in their interests to be placed with their siblings. With respect to the carers having the care of a child above the age of 12, the Tribunal was left with the impression from the CEO that the approach was flexible, in an attempt to maintain a connection with siblings, provided the carers were happy with the arrangement.
The Tribunal questioned the CEO on the Parenting Capacity Report. She said that she believed the author of the parenting capacity report undertook the review without the full context of information that was relevant to her assessment. In the CEO’s view, the report was heavily weighted in favour of the carers and did not accurately assess the amount of support given by Burrun Dalai to the carers. The CEO said that she had a conversation with the reviewer only after receiving her report. In her view, had the reviewer been made aware of the relevant issues, the outcome would have been different.
When asked whether the sexual assault incident involving the carer’s nephew had been finalised, the CEO deferred to the investigation of this matter by the Joint Child Protection Response (JCPR) program.
The CEO said that the Minister’s Code of Conduct and the BD Code of Conduct were discussed with the carer, that she had receiving training on her obligations under the Codes, and had signed the document as required.
The CEO’s evidence in relation to the level of support provided to the carers was that the children were assessed for their autism and the reports that were issued by ASPECT influenced the NDIS plans and strategies and recommendations about how to manage each child. She said that the recommendations were followed by Burrun Dalai, however she could not answer whether they were followed by the carers.

As the household became even more unstable and unsafe, the carers lacked the skills to solve problems and increasingly called after hours. The increasing number of after-hours calls made for urgent support and the number of times that the carer had said that she “cannot do this anymore”, demonstrated that the carers struggled to manage the second child’s high needs and behaviours and their own emotional responses.
Accordingly, we find that the respondent was justified in its reasoning on this issue.

Issue 3: Cleanliness, safety and hygiene in the home

The cleanliness, safety and hygiene in the home is connected to an assertion that there was a lack of supervision of the children. According to numerous reports by various case workers, the household was chaotic and disorganised. The reports of dirty dishes, broken windows, damaged carpet rotten food in lunchboxes, urine smells in the home, unmade beds, toys strewn everywhere are to be preferred over the carer’s evidence that the house may have been untidy but was never unhygienic (except for damage to the carpet in the children’s bedroom). Under cross-examination, the carer criticised the respondent for not attending to repairs in a timely manner.
As early as March 2017 when the carers were required to provide the Undertakings, these issues were apparent. The IFBS program was designed to upskill the carers in how to create a structured environment for the children, with a routine for managing their needs before and after school. The carers appeared to constantly struggle with these rudimentary requirements which, if met, would have assisted in providing a safe, clean and comfortable physical environment in which to create structure for the children (and be compliant with the Minister’s Code of Conduct and the BD Code of Conduct).
During a home visit by a caseworker at 4.30pm on 6 November 2019, the house was observed to be “always cluttered and messy with clothes everywhere, girls’ bedrooms very untidy, beds and sheets look unclean, rooms not vacuumed, and the carpet not maintained. The caseworker’s notes reported that the carer had all day to tidy the home and at least have it organised for the kids when they returned home after school.
We acknowledge that the first consultant observed the house to be generally clean, though untidy, with several boxes associated with moving house.
We recognise that the destructive behaviours of the children, in particular the second child, clearly made it difficult if not impossible to keep a pristine environment on many occasions. However, on balance, we find that respondent was justified in finding that the carers generally failed to maintain a clean, safe and hygienic home from day to day.

Issue 4: Carers’ disengagement from offers of support

In accordance with the Undertakings that the carers were required to sign in March 2017 following a safety risk assessment, their participation in the IFBS program was mandatory:

“Agree and participate in Burrun Dalai Intensive Family Base Services inclusive of home visits twice per day to assist with developing routines for the children, managing challenging behaviours, assistance with household management and safety.”

Burrun Dalai’s IFBS program is described on its website (see as an intensive, time-limited, home-based intervention program for Aboriginal families in crisis. The primary intended outcome of IFBS is to stabilise the crisis and then gradually reduce dependency on support so that the family can become more self-sufficient. The IFBS intervention is limited to 12-16 weeks and provides up to 20 hours intensive family work per week, depending on any child protection concerns. The IFBS Stepdown program is offered to family who would benefit from additional, less intensive support (for up to 24 weeks) after the IFBS crisis intervention. The Stepdown program is not mandatory.
The carer thought the Stepdown Program was for a further 12 weeks, and declined to engage with it when she understood it was to be for a further 24 weeks (p 1526 of Exhibit R1). The second applicant’s evidence was that the household was too busy to accommodate further people.
After completing the initial 12-week program, an officer of the respondent reported positively on the applicant’s progress (extracted below) but recommended that they also participate in the Stepdown Program to further consolidate their skills, however they elected to not engage in the further training offered:

[The applicants] have been compliant and have maintained the goals set by OOHC for the past twelve weeks. SDW recommends finalising the Stepdown Program.”

In our view, the applicants’ election to not accept the Stepdown Program demonstrates a reluctance to engage, and persist, with strategies designed to assist carers in providing a well-structured routine for consistency and stability in the household.
We note that the carer failed to take the first child to six of her 12 scheduled behaviour therapy appointments, preferring to take the child to Mr M (clinical psychologist) for therapy. The carer expressed the following view about both the first child and an older sibling who was also required to attend scheduled behaviour therapy:

“Both girls as you know are ASD2 and while trauma might have an effect on their behaviour, I don’t feel that focusing solely on that aspect of their lives is going to help them control their behaviours.” (Attachment 5 to A2)

While we acknowledge this proposal does evidence a pro-active approach by the carer, we regard the correspondence as reflective of her failure to understand trauma and appreciate its effect on a child’s psyche, emotional responses and behaviours that will optimally respond positively to clinical intervention. It is at odds with the carer’s advocacy that the family attend Red Bank House which provides tertiary assessment and treatment for children and their families experiencing severe and treatment resistant mental health disorders.
The carers’ disengagement from offers of support, including their election to refuse to participate in the IFBS Stepdown program in circumstances where case notes indicate that caseworkers considered the girls were still at risk in the home, is suggestive of a complacency on the part of the applicants about what is expected of them as carers.
We find the applicants’ refusal to engage further is indicative of a reluctance to consistently implement strategies to address behaviour and reduce symptoms, a view expressed by the clinical psychologist and social worker at Burrun Dalai’s internal meeting on 30 October 2019.
On balance, we find that the respondent was justified in concluding that the carers failed to engage sufficiently with the supports offered to them in order to meet the children’s needs.

Issue 5: Reportable conduct issues

We accept the evidence of Burrun Dalai’s Reportable Conduct Manager that reports and disclosures, even those made when the children are in respite care or in environments outside the home (such as school), reflect what is happening in the home and the overall level of risk for the children.
In saying this, we do not include the sexual assault allegation which occurred in another home and could not be said to be a direct reflection of the applicants’ provision of care. In the absence of any psychological or psychiatric opinion on the effect of such an incident upon the second child, it is not possible to conclude whether the home environment contributed in any way to the second child’s interest in searching on the internet for sexual material which may have enlivened her to sexualised behaviour such that she became the target of sexual abuse by an older teenage boy. We do, however, accept the carer’s concerns as expressed to the first consultant that this is a matter that had a marked detrimental effect upon the child. The child’s own disclosures about this, her drawings of the teenage boy and her extreme reluctance to be in respite care where the boy may be staying, all evidence the child’s distress. Both the first and second consultants considered the sexual assault allegations to be very serious, requiring investigation and resolution. The respondent did not offer any evidence of attending to the second child’s psychological response and needs arising from the matters alleged, deferring instead to the investigation by other agencies within the JCPR program.
We have considered below some of the matters which we regard as serious lapses in the standard of care, safety and protection provided by the carers to the children that were examined in the reportable conduct investigation.

YouTube videos

Videos of the children taken by the carer’s husband involved one child being naked, and contained sexualised content because the focus was on the children’s genital area. Over time, it appears that 13 videos were posted online between 2013 and 2019, and 7 of the videos were most concerning, showing the children in compromising clothing and positions (pp 65-69 of R1).
In giving his oral evidence, the carer’s husband explained that he wanted to keep footage of the children for them to see when they were older. When asked why he uploaded the material rather than save it on a USB device or computer hard drive, he gave honest and frank admissions that he could have done so, and that he just “didn’t think” but that he now understands and would never do it again.
As an authorised carer, having completed her carer training, the second applicant ought to have been aware that the action of having the videos uploaded onto the internet (via YouTube) was a breach of her statutory obligations under the Care Act regarding the protection of the identity of children in care. Section 105 of the Care Act provides that the publication of names and identifying information of children in out-of-home care must not be published or broadcast in any form that may be accessible by a person in New South Wales. The relevant sections in the Care Act are set out below:

105 Publication of names and identifying information
(1)…
(1AA) The name of a child or young person who is or has been under the parental responsibility of the Minister or in out-of-home care must not be published or broadcast in any form that may be accessible in a person in New South Wales, in any that identifies the child or young person as being or having been under the parental responsibility of the Minister or in out-of-home care (however ).
Note. Identifying the child or young person or being or having been a foster child or a ward of the State, or as being of having been in foster care or under the parental responsibility of the Minister, or in the care of an authorised carer, are all examples of identifying the child or young person as being or having been in out-of-home care.
(1A) The prohibition in subsection (1) or (1AA) applies to the publication or broadcast of the name of the child or young person concerned until –
(a) the child or young person attains the age of 25 years, or
(b) the child or young person dies,
whichever occurs first.

Uploading videos of the children where their identity can be ascertained by any person in New South Wales who searched on YouTube when the videos were accessible is a breach of s 105 of the Care Act. If any other person has cached the footage, the potential remains for that footage to be further published, and thereby facilitate the continuing identification of the children. The applicants explained that the intention was to cheer up the carer while she was in hospital following heart surgery. Whilst it was clear to the Tribunal that the applicants did not have any sinister intent, we regard this breach as a very serious matter.

Horror movies

The Tribunal finds no reason to dispute the findings of the reportable conduct investigation even though the applicants contended that the children watched scary movies when in respite care which they reported to the respondent. We find that the evidence of the children was clear, that whilst they had watched a movie called “Annabelle” at a respite carer’s home, they also watched scary movies such as “Goosebumps” and this was apparently while in the applicants’ household. All three children were interviewed in relation to this allegation and said they watched scary moves at home and that the carer’s husband knew.
The carer’s evidence was that the family watched “B” grade movies and gave “Chucky” as an example. That particular movie is classified ‘Mature Accompanied (MA15+)’ and is not generally suitable for exhibition to persons under the age of 15. It contains horror, violence and language that has sinister overtones and is not suitable for children of the age of those in the applicants’ care. Despite saying they would ensure the children would not watch them again, the carer demonstrated a somewhat cavalier attitude to this issue, stating that the children had found the movies to be funny. We find this statement concerning, to say the least. It suggests the carers did not regard the issue as a matter of concern and were not alert to the potential for such movies to traumatise the children and adversely impact upon their behaviours. We find that the carers exercised very poor judgment in this aspect of providing care for children with a trauma background.

Lack of supervision - neglect

There were many instances cited where the carers failed to appropriately supervise, or supervise at all, the children. This was evidenced by such things as the carpet being coloured in, a fire started by the children in their bedroom, efforts to locate the children in a number of circumstances, and the second child’s access to knives.
We will primarily direct our comments to the incident where the children were left unattended in a motor vehicle and the second child hurt her wrist. Whilst we acknowledge that the period of time when the children were left unsupervised in the vehicle was very short while the carer paid the car wash fees, we regard this incident as very serious. Section 231 of the Care Act creates an offence for a person to leave a child in a motor vehicle without proper supervision for such period or in such circumstances that the child becomes or is likely to become emotionally distressed, or the child’s health becomes or is likely to become permanently or temporarily impaired. The carer could not remember whether she had properly secured the vehicle from moving but failed to appreciate the danger of leaving children unsupervised in a motor vehicle, even for a short period of time. Whilst the incident was reported by the carer, it evidenced an absence of judgment to place the children in a position of danger, threatening their physical and emotional safety.
We find no reason to disturb the reportable conduct findings which substantiated four out of six allegations, and find that the respondent was justified in relying upon these substantiated allegations in the removal decision.

Issue 6: Whether the carers received adequate training

The lack of support and need for specialised training was an issue raised by the applicants. In particular, the carer told the external reviewer that she had asked for additional training on Reactive Attachment Disorder. The carer said that she had been promised training on restrictive hold practices (specifically, physical restraint) but that the training had not been provided.
We regard the request for restrictive hold practices training with some concern since it is an extreme strategy. The carers thought this might be the remedy for the second child’s violent behaviours, however she was a young child with ASD and a trauma background. In any event, we refer to s 158 in the Care Act regarding the physical restraint of a child who, unless restrained, might seriously injure himself or herself or another person. Section 158(2) of the Care Act permits a carer to restrain a child but only on a temporary basis and only to prevent injury. Importantly, under s 158(3) of the Care Act, the restraint must be consistent with any behaviour management requirements that apply to the child. This therefore requires the carers to be fully cognisant of the behaviour management plans for the children when attempting to correct and manage their behaviours.
Under cross-examination the carer was shown a psychological assessment report prepared by ASPECT in October 2017 regarding the second child (R9) which contained a great number of recommendations on managing the child’s behaviour and development. The carer conceded that she had not followed up on the recommendation to attend a 3-day positive behaviour support workshop run by ASPECT, designed specifically for carers of a child with autism spectrum disorder who display challenging behaviours. The carer said that all her training was done with Burrun Dalai. The carer also said that she would have read the ASPECT report, however, it was apparent to the Tribunal that she had not actively engaged with the content of the report or taken advantage of the ‘Recipe for Success’ practical workshop training offered to her.
This Tribunal has no reason to question the records of training given to the carers (including training that addressed trauma informed care and training in relation to the Healing Pathways Plans otherwise known as behaviour management plans) as referred to in Ms D’s affidavit. The carer also received training from the Australian Childhood Trauma Group Therapists in an ongoing program from July 2015 until December 2018. She received training with a psychologist in identifying the misdiagnosis of ADD, ODD, RAD and ASK in the context of trauma responses.
The second consultant’s report (pages 1511 and 1522 of R1) corroborated Ms D’s evidence on the amount and diversity of trauma informed training received by both carers. This evidence was not refuted by the applicants.
As discussed above, the IFBS program provided intensive in situ training in a number of critical areas relevant to the care environment required to be provided to the children.
We do not accept the applicant’s contention that they did not receive adequate training.

Issue 7: Whether the carers received adequate support and access to respite care

The issue concerning whether the carers received adequate respite care for their own wellbeing is not altogether straightforward. This is because, on the one hand, the carers had to manage the tension before and after the second child spent time in respite care away from the household because it disrupted her routine. Yet, on the other hand, they welcomed the opportunity for the three girls to have some of their siblings spend time with them at home. This was a somewhat complex dynamic to manage.
Another older sibling (separate from the older sibling whose placement came to an end on Boxing Day 2019 after 2 years) spent 54 nights of respite care with the applicants from 21 July 2016 to 30 October 2018. It is apparent to the Tribunal that the applicants were generous in their recognition of the need for the siblings to play together and feel that they belonged together, yet this was another demand on the carers who themselves needed periods to rest and recover. The applicants’ evidence was that, sometimes, two or three additional children were placed with them on respite. Their weekends as a core family were rare. Occasionally, respite children stayed for weeks at a time. The respondent must accept responsibility for its role in this, and it is reasonable for the Tribunal to conclude that Burrun Dalai considered the carers were providing a safe and protective environment for children, at least for a period of around seven years.
The second child received 12 periods of respite care during 2018-2019. We would generally consider this to be a reasonable amount of respite support however in circumstances where the respite could be said to be a catalyst for further behavioural dysfunction, the evaluation is not easily made. After what can only be described as a very taxing year for the family, a caseworker met with the carer on 9 December 2019 to discuss having a support worker in the home to assist the second child with her routine. The carer did not want anyone in the home as she said it was “hectic enough”. Nonetheless, she agreed the second child could attend afternoon programs with a support worker to focus on life skills and interacting in the community safely.

In light of the CEO’s evidence, and noting that the first consultant stated that her report was based on one face to face interview (i.e. with the carer), it is apparent to the Tribunal that the comment in the report that the carers had only received minimal support “due to staffing changes and tasks not being completed”, can be attributed to the carer. The disclaimer in the report said that the conclusions reached were not absolute and should be considered in conjunction with all available information. We also note that the report is silent on the matters which were the subject of the reportable conduct allegations against the carers. In circumstances where the author of the report was not available for questioning, we are not in a position to ascertain whether the conclusions reached and recommendations made were reasonable in the circumstances.
We find that, in the circumstances, the report did not have the benefit of all relevant information and was based almost entirely upon the reviewer’s interview with the carer. Accordingly, we give minimal weight to the recommendation regarding respite care.
We refer to our analysis of the family dynamics and the relationship between the parties. We find that, in the circumstances, Burrun Dalai was on notice that the family was struggling to cope throughout 2019 and that the second child’s behaviour had deteriorated markedly since February 2019. However, no evidence was put before this Tribunal to address whether the second child received additional support at this time. Although Burrun Dalai stepped in to remove the baby so as to allow the carers to focus on the three children in their care, it was a complex dynamic to manage because the carers and the children had become attached to the baby and the second applicant said that the children loved having their siblings to play with.
We therefore find it difficult to conclusively decide this issue. On balance, we find that Burrun Dalai provided adequate supports to the carers however, when the household began to show signs of serious dysfunction (both with respect to the behaviours of the carer and the second child), the adoption of a more supportive and proactive approach was warranted.

Issue 8: Compliance with the Minister’s Code of Conduct

Under Care Regulation 30(5)(e), a designated agency must not determine that an applicant is capable and suitable to be authorised as an authorised carer unless the applicant has provided a signed statement that the applicant has read, understood and will comply with the Minister’s Code of Conduct. The carers were well aware of the Minister’s Code of Conduct, had received training on it and had signed a copy of the Conduct annually.
Compliance with the Minister’s Code of Conduct is a condition of a carer’s authorisation.
On the basis of the evidence before us, we find that the carers have breached the Minister’s Code of Conduct in failing to comply with the following standards of conduct:

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.

Ensure the child or young person’s health, wellbeing and dental needs are met and any planned intervention is carried out.

In failing to comply with the obligations noted above, we find that the carer failed to comply with a condition of her authorisation and the respondent was therefore justified in cancelling her authorisation on that ground.
We find that the carers also breached the BD Code of Conduct, by failing to ensure that the home was kept safe, clean and in good repair. In our view, in failing to regulate their own emotional responses and failing to control and manage the children’s behaviours, they failed to give positive guidance towards socially acceptable behaviour as required in the BD Code of Conduct. While these matters are serious, the Care Regulations do not make compliance with the agency’s Code of Conduct a condition of carer authorisation. However, these failures support our finding that the carer is no longer a suitable person to be an authorised carer (discussed further below).

Issue 9: Whether the carers are suitable persons to be authorised carers

In considering this key issue, the Tribunal acknowledges that the carers may have been lulled into a false sense of confidence that they were providing the standard of care required of them. We say this because during 2019, despite the deterioration in the second child’s behaviour causing a level of distress for the whole family, the applicants received a good review on 13 May 2019 (pp 40-53 of R1).
The May 2019 review commented that the applicants were still motivated to be carers, that they loved the role and were respectful towards others, showing empathy when needed. The reviewer said that the applicants had a good relationship and communication with each other, and were always positive about the children’s biological parents. They were considered to be carers who promoted positive identity in the children and were advocates for them. They were observed to be affectionate with the children, talking with them a lot and telling them that they loved them. The report continued on to say that the carers understood the importance of routines, having time out and managing behaviours. The applicants were described as being always willing to do extra training around abuse and that they wanted to do more training in the area of managing challenging behaviours and restrictive hold practices. The review noted that the carers’ home met the minimum standard.
Against that mid-2019 review, however, for the reasons given above we find, on balance, that the carer is no longer a suitable person to be an authorised carer.

Issue 10: Views of the children and assessment of their welfare and well-being

Guardian ad Litem’s assessment

Consistent with the principle in s 9(2)(a) of the Care Act and s 8(a) of the CG Act, the appointed Guardian ad Litem was asked to advise the Tribunal, as far as possible having regard to the developmental capacity of each child, on their views about where they would like to be placed to ensure their safety, welfare and well-being.
The Guardian ad Litem assisted the Tribunal by visiting the three children and providing an account of their state of wellbeing to the Tribunal on the first day of hearing. In her observation and dialogue with each of the children separately via ‘zoom’ conferencing, she observed that they all presented well, were excited to see each other, looked happy and were playful. With respect to each child, she said that:

The first child was very happy in her new placement and was happy to stay there. When asked where she would prefer to live, she said that she was happy at the applicants’ house, and did not express a preference;

The second child was confused about why she was placed with another carer and thought it was her fault because of her behaviour. When asked how she was going where she was staying, the child said she liked it but didn’t know why the applicants were not with her anymore, and she thought it must be because of her behaviour being ‘up and down’. She asked why the applicants had been taken away from her. When asked whether she would like to go back to the applicants, the child said she missed going home and missed her pet rat, and missed being with her sisters. When asked if she would like the opportunity to be with her two sisters, she said that she would.

The third child was harder to talk with, given her age and shyness. She simply gave ‘yes’ and ‘no’ responses. When asked where she would like to stay, she said that she was happy with her new placement because there were lots of pet animals. When asked whether she would like to say with her new placement or with the applicants, she said ‘yes’ to both and did not indicate a preference. However, she appeared to have a stronger inclination towards her new placement.

The Guardian ad Litem observed that all three children were absorbed in other activities (such as playing with blocks) and did not engage in the conversations for very long.
Overall, the third child spoke enthusiastically about her new placement. It appears that both the first and third children had adapted to their new environment. Curiously, because of her questions about why she was no longer with the applicants and her concerns that her behaviour had caused the change, it appeared to the Tribunal that the second child appeared to be the most impacted by the change in placement and was missing the applicants. However, when asked whether she would prefer to be with her sisters or with the applicants, her response was that she wanted to be with her sisters.

Medical opinions and school reports

According to the independent assessment of Dr K, paediatrician:

The first child is settled with her new carer and there have been no concerns from her school about her behaviour, her medications remain unchanged, and she appeared to be bright and cheerful (as at 29 September 2020);

The third child is also well settled with her new carer and appeared to be managing quite well without taking ADHD medication, although she continues to take medication to get to sleep (as at 29 September 2020);

The second child (as at 11 November 2020) is placed in a home where she has 24 hours continual care with two sets of carers, she continues to take medication for her ADHD and to assist with sleep, and appeared bright and cheerful on examination. Dr K noted that he had learned of the child’s inappropriate sexual behaviour from a clinical psychologist in May 2020. Dr M’s report on 5 November 2020 also noted that she had settled well into her new placement.

A report from the third child’s school principal noted that this child is an extremely happy and engaged student, reading at an above age level and her numeracy skills are age appropriate. She is popular with her peers and was described as a wonderful role model for her peers. The principal described her as having a wonderfully compassionate and friendly nature although she struggles emotionally at times after revisiting her past carers, adding that she is always eager to reconnect with them.
A report from the second child’s school principal on 21 December 2020 advised that she had adapted to her new lifestyle and appeared to be more settled and engaged. She was described as growing in her learning, understanding and maturity and appeared to be a happy little girl. Her moments when things are “just too much”, were less frequent that they had been in the past.
All three children are now placed with authorised carers. The first and third children are together, in a long term placement. The second child is also in a long term placement, not far from her sisters.
The Case Work Manger’s evidence was that, in their new placements, the children are not receiving new services (and we understood that this meant the children were still under the care of their usual clinicians and therapists) however the recommended behaviour management strategies were being implemented by their new carers.

Conclusion

The paramount concern in these proceedings is the safety, welfare and well-being of the children, as required by s 9(1) of the Care Act.

Removal decision

We accept that a relatively strong bond had naturally formed between the applicants and the children, particularly the second child, because of the length of time they had been together.
However, the children have now been separated from the carers for almost two years. The length of time of a separation and the damage that can result was considered in NS & NT v Director-General, Department of Community Services [2009] NSWADT 149 at [17]:

“A lengthy separation has the potential in my view to materially damage the relationship between a carer and a child. Where the relationship is damaged as a consequence of the separation or, the child has developed an attachment with a new carer this may become a critical factor in the determination of the subtstantive application.”

In our assessment, the length of time that these children have been with new carers is such that they have had an opportunity to form a stable connection and all three children appear to be settled and doing well. We are mindful that, after suffering a difficult emotional period surrounding their removal, there is a risk of psychological harm to them if they were to be returned to an environment with which they may associate a lack of stability and fear of being removed again. We use the term “psychological harm” as coming within the meaning of “harm” as applied in Re Louise and Belinda at [49], to include an adverse effect on the safety, welfare and well-being of a child.
We have considered this risk in light of the frequency and increasing ferocity of domestic disturbances the family suffered associated with the children’s high needs and disruptive behaviours. Additionally, the carers became increasingly overwhelmed by those disturbances such that they were unable to control their own emotions and dialogue within the hearing of the children. The risk of psychological harm to the children if they were to be returned to the carers and that environment is a primary consideration.
We have concluded this on the basis that whilst the applicants loved the children and did their best to care for them, they lacked the skills to implement the recommended strategies for managing the children’s challenging behaviours. They also lacked the insight and emotional maturity to manage their own behavioural responses in times of stress, exacerbating already heightened anxiety in the household and potentially causing further trauma in the children.
Applying the paramount consideration set out in s 9(1) of the Care Act, and with reference to the test of “unacceptable risk to the child” in DWA, we find on the balance of probabilities that returning the children to the applicants would involve an unacceptable risk to their safety, welfare and well-being.
We therefore consider, notwithstanding the bond that each child had previously formed with the applicants, and allowing for any adjustment difficulties the children may have encountered associated with settling into a new home, that it would not be in the best interests of the children to disturb the placements with their new carers.
Applying the principle set out in s 9(2)(c) of the Care Act, and with reference to the decisions in Re Tracey and Re Louise and Belinda, we find that the least intrusive intervention in the lives of the children that is consistent with the paramount concern to protect each child from harm and promote each child’s development, is to not disturb their new placements and not reinstate the placement with the applicants.
The correct and preferable decision in all the circumstances is to remove the children from the care of the applicants and not return them.

Cancellation decision

We find that, despite the obvious affection that the applicants developed for the three children and their expressed commitment to caring for them, the applicants’ parenting skills are not complementary to a finding that they are suitable carers.
Overall, we find that the applicants lack insight into the impact of their own emotional responses to situations of domestic stress upon the children, necessary for ensuring that the safety, welfare and wellbeing of children in their care is held paramount. Their statements of desperation when failing to manage the children’s high needs demonstrate an inadequacy in parenting skills and managing a child with complex diagnoses and trauma history. Their reactive behaviours do not ensure the protection of children, and place them at risk.
Despite the best intentions of the applicants, we are not satisfied that the second applicant is a suitable person to remain as an authorised carer.
We do not accept the applicants’ submissions that the relationship between them and the respondent is repairable. We find that it is irretrievably broken because of the breakdown in trust between the parties, substantially as a result of the lack of transparency in the respondent’s decision-making as well as the carers’ perceptions that the respondent failed to provide greater support during 2019 when the family was clearly experiencing increasing stress. In our view, it is unlikely that the trust and confidence between the parties can be rebuilt.

Orders

The decision of the respondent dated 22 April 2020 to remove three children from the care of the applicants is affirmed.
The decision of the respondent dated 19 October 2020 to cancel the carer authorisation of the second applicant 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: 17 November 2021

Medium Neutral Citation:	EKH v Burrun Dalai Aboriginal Corporation Inc. (No 2) [2021] NSWCATAD 344
Hearing dates:	19, 20, 21 January 2021, 10 May 2021 and 1, 2 July 2021
Date of orders:	17 November 2021
Decision date:	17 November 2021
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Starke, Senior Member L Houlahan, General Member
Decision:	(1) The decision of the respondent dated 22 April 2020 to remove three children from the care of the applicants is affirmed. (2) The decision of the respondent dated 19 October 2020 to cancel the carer authorisation of the second applicant is affirmed.
Catchwords:	ADMINISTRATIVE LAW – Child protection – Out of home care – Application for review of decision to remove children from care of authorised carer – Application for review of decision to cancel carer authorisations
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Children and Young Persons (Care and Protection) Regulation 2012 (NSW) Children’s Guardian Act 2019 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Community Services (Complaints Reviews and Monitoring) Act 1993 (NSW) Ombudsman Act 1974 (NSW) (repealed)
Cases Cited:	Briginshaw v Briginshaw [1938] HCA 34 DCP v Challenge Children’s Services [2017] NSWCATAD 365 Dept of Community Services v “Rachel Grant”, “Tracey Reid”, “Sharon Reid” and “Frank Reid” [2010] CLN 1 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 DWA v Veritas House [2020] NSWCATAD 40 EKH v Burrun Dalai Aboriginal Corporation Inc. [2020] NSWCATAD 266 Johnson v Page [2007] Fam CA 1235 M v M [1988] HCA 68 NS & NT v Director-General, Department of Community Services [2009] NSWADT 149 Re Louise and Belinda [2009] NSWSC 534 Re Tracey [2011] NSWCA 43 YG and GG v Minister for Community Services [2002] NSWCA 247
Texts Cited:	None cited
Category:	Principal judgment
Parties:	EKH (First Applicant) EKI (Second Applicant) Burrun Dalai Aboriginal Corporation Inc (Respondent)
Representation:	Solicitors: First and Second Applicants (Self-Represented) McNeilly Lawyers (Respondent) Bobbi Murray (Guardian Ad Litem) (Subject Children)
File Number(s):	2020/00242056
Publication restriction:	Section 65 of the Civil and Administrative Tribunal Act 2013 (NSW) applies to these proceedings.

Child	Diagnoses
First child	Autism spectrum disorder (ASD) – Level 1 Attention Deficit Hyperactivity Disorder (ADHD) Sleep difficulties Anxiety
Second child	ASD – Level 3 (requires very significant support) ADHD Reactive Attachment Disorder (developmental trauma) Oppositional Defiance Disorder (ODD) Acute Traumatic Stress Disorder (ATSD) Innocent heart murmur Borderline intellectual ability Difficulty in sleep initiation Sleep difficulties Short stature (probably familial)
Third child	ADHD ODD

Nature of conduct	Allegation	Finding
Sexual misconduct	Videos of a sexualised nature on YouTube	Substantiated
Sexual misconduct	Carers alleged to have had the third child in the bed naked with them while on top of each other and encouraged the first child to take her clothes off and get into the bed naked with them	Not substantiated
Sexual misconduct	Second child was told by carers she could sleep naked	Substantiated
Neglect – lack of supervision	Second child sleeping with cats overnight	Not substantiated
Neglect	Allowing the children to watch violent and scary movies	Substantiated
Neglect – lack of supervision	Second child threatening other children in the house with a knife	Substantiated