Eqz v Kari Ltd

[2022] NSWCATAD 221

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EQZ v Kari Ltd [2022] NSWCATAD 221

Hearing dates:

3 March 2022, 4 March 2022

Date of orders:

1 July 2022

Decision date:

01 July 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

E Bishop, Senior Member
J Goodman-Delahunty, Member

Decision:

The respondent’s decision to cancel the applicant’s authorisation as an authorised carer is affirmed.

Catchwords:

ADMINISTRATIVE LAW – authorised carer – where allegations of assault made against male carer – cancellation of authorisation – whether correct and preferable decision

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW), ss 58, 63(1)

Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 8, 9(1), 137(1)(b), 158, 245

Children and Young Persons (Care and Protection) Regulation 2012 (NSW), cll 3, 34, 42

Children’s Guardian Act 2019 (NSW), s 20

Civil and Administrative Tribunal Act 2013 (NSW), ss 38, 65

Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW), s 28

Cases Cited:

CXB v Birripi Aboriginal Corporation Medical Centre [2017] NSWCATAD 372

Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60

EKH v Burran Dalai Aboriginal Corporation Inc (No 2) [2021] NSWCATAD 344

YG and GG v Minister for Community Services [2002] NSWCA 247

Texts Cited:

None cited

Category:

Principal judgment

Parties:

EQZ (Applicant)
Kari Limited (Respondent)

Representation:

Counsel:
M Higgins (Applicant)
DJ Helvadjian (Respondent)

Solicitors:
Willoughby Law (S Etherington) (Applicant)
Minter Ellison (Respondent)

File Number(s):

2021/00142974

Publication restriction:

Pursuant to order of the Tribunal made on 18 October 2021, publication or broadcast of the name of the applicant is prohibited. 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.

Judgment

Introduction

1. The applicant, EQZ, was an authorised foster carer with the respondent, KARI Limited. On 6 November 2020, there was an altercation between EQZ and a child in his care (Child A) which occurred at the school where Child A attended. It was alleged that EQZ assaulted Child A by pinning Child A against a fence, biting him and digging his fingers into Child A’s leg in an attempt to physically restrain him.

2. KARI decided to remove Child A from EQZ’s care (removal decision). Following an investigation into the allegation, KARI determined EQZ had assaulted the child and cancelled EQZ’s authorisation as a carer (cancellation decision) under cll 42(a) and 42(b) of the Children and Young Persons (Care and Protection) Regulation 2012 (NSW) (Care Regulation) which was affirmed on internal review. EQZ now seeks a review in the Tribunal.

3. For the purposes of the orders made by the Tribunal under s 65 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), the name of the applicant has been anonymised to EQZ; the child who was under his care is referred to as Child A; and the name of the school Child A attended, the principal, support teachers, and caseworkers have all been de-identified.

4. At the hearing, Mr Higgins, counsel for EQZ, confirmed that EQZ no longer seeks a review of the removal decision. The only decision under review is the cancellation decision.

5. We have decided that EQZ has breached the Code of Conduct and is not a suitable person to be an authorised carer. We affirm KARI’s cancellation decision. Our reasons follow.

Jurisdiction

6. The Tribunal’s jurisdiction to review the cancellation decision is conferred by s 28 of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) read with s 245(1) pars (a1) and (c) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (Care Act).

7. The task for the Tribunal under s 63(1) of the Administrative Decisions Review Act 1997 (NSW) is to determine, on the balance of probabilities, whether KARI’s decision to cancel EQZ’s carer authorisation was the correct and preferable decision having regard to the material before it and any applicable law. This means the Tribunal stands in the shoes of KARI and decides the matter afresh, as at the date of the hearing and not as at the date the decision was made: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].

8. 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 NCAT Act.

Relevant legislation

9. The Care Act provides for the placement of children in out-of-home care, for the removal of children from a placement, and for the authorisation and deauthorisation of carers.

10. Section 8 of the Care Act provides for the objects of the Act as follows:

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.

11. The paramount principle in any action or decision concerning a particular child is the safety, welfare and well-being of the child: s 9(1) of the Care Act which provides that the Act is to be administered as follows:

12. An “authorised carer” includes “a person who, in accordance with the regulations, is authorised as an authorised carer by a designated agency”: s 137(1)(b) Care Act. A “designated agency” includes an accredited organisation that arranges the provision of out-of-home care: s 139(1)(b) Care Act.

13. 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” (Code of Conduct). It is a condition of authorisation that the carer comply with the Code of Conduct: cl 34(4) of the Care Regulation.

14. Relevantly, cl 42 of the Care Regulation provides as follows:

42   Cancellation or suspension of authorisations by designated agencies

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

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

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

Reportable conduct

15. A designated agency investigates reportable conduct in accordance with the Children’s Guardian Act 2019 (NSW). Under s 20 of the Children’s’ Guardian 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:

1. a sexual offence;

2. sexual misconduct;

3. ill-treatment of a child;

4. neglect of a child;

5. an assault against a child;

6. an offence under section 43B or 316A of the Crimes Act 1900;

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

16. Under the Children’s Guardian Act ill-treatment and assault are defined as follows:

23   Meaning of “ill-treatment”

Ill-treatment, of a child, means conduct towards a child that is unreasonable and seriously inappropriate, improper, inhumane or cruel.

Examples of ill-treatment—

1   making excessive or degrading demands of a child

2   a pattern of hostile or degrading comments or behaviour towards a child

3   using inappropriate forms of behaviour management towards a child

25   Meaning of “assault”

Assault means—

(a)   the intentional or reckless application of physical force without lawful justification or excuse, or

(b)   any act which intentionally or recklessly causes another to apprehend immediate and unlawful violence.

Examples of assault—

1   hitting, striking, kicking, punching or dragging a child

2   threatening to physically harm a child

17. Section 158 of the Care Act provides that a carer may physically restrain a child if: they are of the opinion that the child might seriously injure himself or herself or another person; the restraint is on a temporary basis necessary to prevent injury; the restraint is consistent with any behaviour management requirements of a care plan; or otherwise, reasonable force may be used.

Issues

18. The issue for determination in this proceeding is whether KARI made the correct and preferable decision in cancelling the authorisation of EQZ on the basis that EQZ:

1. is no longer a suitable person to be an authorised carer; or

2. has failed to comply with a condition of authorisation.

Materials before the Tribunal

19. EQZ relied on the following material:

1. Administrative review application form filed on 20 May 2021;

2. Affidavit of EQZ dated 8 September 2021 annexing various photographs, text messages and character references;

3. Summonses issued by the Tribunal for CCTV footage at the school and various email correspondence from the school to EQZ’s solicitor in respect of CCTV footage;

4. Submissions on procedural fairness dated 28 October 2021;

5. Submission dated 16 February 2022.

20. KARI relied on the following material:

1. Documents filed pursuant to s 58 of the Administrative Decisions Review Act 1997 (NSW) comprising 12 documents including transcripts of interviews with EQZ and Child A.

2. Supplementary documents filed on 29 October 2021 comprising:

1. The KARI investigation report;

2. Statement of the principal (“LC”) dated 2 February 2021;

3. Statement of the support teacher (“AW”) dated 2 February 2021.

3. Transcript of interview with EQZ on 1 March 2021, signed by EQZ.

4. Policies including:

1. KARI Code of Conduct for authorised foster, relative and kinship carers signed by EQZ on 1 June 2017;

2. NSW Department of Communities and Justice Code of Conduct for authorised carers; and

3. KARI Foster Carer Code of Conduct signed by EQZ on 1 June 2017.

21. The Tribunal heard oral evidence from EQZ, LC and AW.

Background facts

22. EQZ has been a foster carer with KARI since 2017. He is on a disability pension and suffers from tendonitis in his arms.

23. Under the KARI Code of Conduct for Authorised Foster, Relative and Kinship Carers signed by EQZ on 1 June 2017, EQZ agreed to:

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

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

24. The NSW Communities & Justice Code of Conduct for Authorised Carers is in similar terms:

“The use of any physical punishment or coercion, force-feeding, deprivation of food or any punishment intended to humiliate or frighten a child is unlawful and is not permitted. Only use restrictive practices that are part of an approved Positive Behaviour Support Plan or Behaviour Support Plan.

Report any incident where physical restraint has been used following the protocol for critical incident/event reporting within your agency… Physical restraint is only to be used in extreme situations where there is a risk of serious injury to the child or another person. Physical restraint is an action taken to restrict a child or young person’s movement.”

25. There was no dispute that the terms of these Codes of Conduct were applicable to EQZ as a foster carer.

26. On 28 August 2020, Child A was placed in EQZ’s care.

27. Child A is 10 years old. He is one of eight children, four in the care of his grandmother.

28. The Investigation report prepared by KARI dated 16 February 2021 (“Investigation Report”) records that:

“[Child A’s] siblings were exposed to domestic violence, medical neglect, nutritional neglect, homelessness and not meeting the needs of the children, by providing them a safe home…As a result of the trauma [Child A] has suffered during his life, he exhibits some extreme trauma behaviours and violent behaviours, such as spitting, head banging, food gorging and swearing.”

29. Child A had come through a program called “OzChild” which was a program where unsettled and behaviourally challenged kids were able to be placed with a family.

6 November 2020 altercation

30. The following facts concerning the altercation are not in dispute.

31. On 6 November 2020, EQZ was asked to attend Child A’s school, at the end of the school day, to speak with the support teacher and another teacher (“DC”) about Child A. When EQZ attended the school to collect Child A, he was informed that Child A had not been attending the Breakfast Club at the school but had been going to the oval playing before school and was engaging in disruptive behaviour. EQZ was unaware he had not been attending the Breakfast Club and reprimanded Child A in front of the teacher telling him that as a consequence of lying, he would lose his internet privileges.

32. Child A was upset and ran from EQZ. While running away he tripped over. He became further agitated and ran towards EQZ with his fists clenched to punch EQZ.

33. EQZ grabbed Child A and put him in a bear hug. This further infuriated Child A who was screaming. There was no dispute that Child A bit EQZ several times. Nor is there any dispute that EQZ said words to the effect “If you bite me, I’ll bite you back”.

34. Child A continued to bite, pinch and scratch EQZ who started to bleed. Photos of EQZ’s injuries were in the evidence before us.

35. A number of teachers tried to intervene. The support teacher and one other were in very close proximity on either side of EQZ and Child A.

36. Child A ended up pushed against a fence and Child A was screaming to be let go. There is no dispute that EQZ was forcibly restraining Child A. EQZ eventually let go of Child A who sat sobbing hysterically for some time in the company of the support teacher. EQZ went with the principal to the office to have his wounds cleaned. After some time EQZ came back out and there was a further verbal exchange between EQZ and Child A.

37. EQZ contacted KARI while he was on a speaker phone at the school, to inform them that Child A had attacked him. The principal then contacted KARI who is reported to have said he saw EQZ pin Child A to the fence and had said things like “I’ll be sending you back to KARI I don’t want you anymore, you don’t have a father anymore”. The principal told KARI that Child A did not feel safe and did not want to return to EQZ’s care. In a further conversation with KARI, the principal said that he had further information from staff who had observed Child A biting EQZ but that they also “saw what they interpreted as [EQZ] biting [Child A] in return”, EQZ dig his fingers into Child A’s leg – everything Child A did to EQZ, EQZ did back to Child A.

38. Child A’s case worker collected him from the school later on that day and he was not returned to the care of EQZ.

39. EQZ denies the allegation that he bit Child A, dug his fingers into Child A’s leg, or said the words ascribed to him.

Investigation

40. The investigation was conducted by KARI. The investigator interviewed Child A on 17 November 2020 and EQZ on 27 November 2020. She also considered the recounts of events from the principal and the support teacher dated 2 February 2021.

41. In the interview, between the investigator and Child A, the following exchange occurred:

“[Child A]: [EQZ] took the internet away, which made me really cranky, and I fell on the cactus. So I went for a hit, and

LC: When you say you went for a hit, what does that mean?

Child A: Punch. I didn’t hurt any of the teachers though.

And then he just put me down onto the ground. Tried to take me home, but I was just holding onto bars and I was just biting his arm that hard that his arm started bleeding, and he was like, ‘I can bite too.’ So he bit me right on the arm, wherever that mark is. It was right there or right there.

LC: So on the top of your arm?

[Child A] Yeah, and it felt like he bit me on the head too. And then he was like, ‘You don’t have a dad anymore,’ which made me really cranky, and I was like, ‘You murdered my dog.’

….

[EQZ] pushed me against a fence and I was just holding on.”

42. In his interview, EQZ is recorded as saying the following:

“Well, I just tried to deflect the situation, you know, and stop him…

… the teacher told him ‘Don’t bite,’ and I said to him at that point, ‘If you bite me, I’ll bite you back,’ because he had bitten me there, and then when he done it there I put my chin on his shoulder, like to feel the pressure, so he could feel the - or think that I was going to bite him back.

LC: Can you understand how he would maybe then have felt as though you had bitten him?

EQZ: Oh, well I hadn’t bitten him but as soon as I done that …

LC: But could you understand that he may anticipate that would happen?

EQZ: Oh, I can understand that, but when I done that he let go straightaway, otherwise he would have taken a bit a chunk out of my arm. I couldn’t do any more. As I said, teachers – there were three or four teachers standing around there not doing anything, and now he’s kicking me as well. So I put my arms under his arms and I held him with his arms up so he couldn’t scratch or cause me any more injuries, even though, as you see, there’s blood running down my arms. So I had to try and stop him attacking me and stop him attacking maybe anyone else or whatever. The teacher said, ‘Can you let him go?’ I said, ‘If I let him go at the moment, he will probably keep attacking me or go for someone else.’ So she said, ‘Can you sit him down?’ and I said ‘Yes,’ and that’s what I done. I sat him down on the ground.

…

LC: So you said to him, ‘If you bite me, I can bite you too,’ or …

EQZ: No, no. I just said to him, I said, ‘If you bite me again, I’ll bite you back’. That’s all I said. I didn’t do it. I didn’t bite him but I said it to him to make him shock – well, I don’t know whether it was to shock him out of biting me again or whatever, but he had bitten me, as the photos showed, twice, so that was all there was to it, and then I sat him down.

…

LC: Was there anything else said during the altercation? We have information that you had said to him, ‘I’m going to take you back to KARI. You don’t have a father anymore.”’

EQZ: No.

LC: So there wasn’t any…

EQZ: No, nothing at all.

LC: As I say, when we receive information, we – when things hit a threshold for reportable conduct, I’ll put it into an allegation, otherwise I’ll just want to raise it with you to get your side as well.

EQZ: I did say to him – after I put him down on the ground, the teachers then surrounded him and I did say to him, I said, ‘Mate, stop it now,’ and he just keep telling me to fuck off, and I said, ‘Mate, stop it now. We’re not going to take this shit from you. You’ve got to stop it,’ and he just told me to fuck off. The teacher did say to me, ‘Come on, leave him alone. Don’t talk to him. Just walk away and go and get your arms fixed.’ And then that’s when I walked into the office, they patched up my arms as best they could at the time, and then I walked out and I walked over to see if he was calm and better off, and he just kept saying, ‘Fuck off, fuck off, fuck off. I hate you. I don’t want to live with you,’ and that’s when I think it was [Mr X], told me to, ‘Just leave him for a while. Go and have a cup of coffee and a smoke and go home and have a rest for 10 minutes or whatever and just give him time.’ So that’s all I done. I just left him. I’d notified KARI while I was in the office. I also rang the counsellor while I was in the office to cancel the appointment.

…

LC…if you were to look back at that incident with the benefit of hindsight, would do you anything differently?

EQZ: I don’t know because it was just so unexpected for him to come and attack me for a start, because he’d been pretty good here.”

43. As noted above the principal and support teacher provided for the investigation, summaries of what occurred on 6 November which were taken into account by the investigator.

44. The support teacher’s summary included the following (using the de-identified named):

“EQZ grabbed Child A and spun him around and bear hugged him. EQZ’s left arm was coming across Child A’s left shoulder and EQZ’s right arm was coming straight across Child A’s right arm. EQZ clasped his hands together so that Child A was restrained. Child A became more agitated and tried to bite EQZ on the arm several times to free himself. EQZ began to scream ‘If you bite me, I’ll bite you and I’ll do it harder.’ Child A continued trying to bite EQZ and succeeded leaving a bite mark on one of his arms. EQZ in turn then bit Child A on the shoulder. When Child A pinched EQZ, EQZ pinched him back leaving visible marks on his arms and when Child A scratched EQZ, EQZ scratched Child A. EQZ kept saying ‘if you hurt me I’ll hurt you back.’ There were multiple staff including myself physically trying to remove EQZ from Child A. At this point EQZ pushed Child A up against a metal barrier. Child A's head was pushed sideways with his right side of his face planted against a metal bar and his left side of his face against EQZ’s hand, who I believe was placing pressure. Child A was yelling for EQZ to let him go and was sobbing loudly. There was a lot of screaming from both EQZ and Child A as well as staff who were trying to intervene.”

45. The support teacher recounted that EQZ had said to Child A “No more Dad. That’s it mate! Dad’s gone, do you hear me, no more Dad, and I’m sending you back to KARI.”

46. The principal’s summary events included that he saw EQZ physically handling Child A; that he pinned the child against the internal entry gates with his arms in a very awkward and uncomfortable position that seemed to the principal to indicate that the child was being hurt; that when EQZ restrained the child, it became elevated; that EQZ said “if you are going to hurt me than I am going to hurt you.” The principal recounted that EQZ said to the child that he would not put up with this and he would have to go back to KARI and that he didn’t want to be the child’s dad anymore. The principal also recalls that after EQZ went to the office to clean his wounds, he came back to Child A, who was rocking and crying hysterically, and that EQZ began to yell and point his fingers at the child.

47. On 16 February 2021, the KARI Investigation Report (Investigation Report) was finalised.

48. The Investigation Report noted the interviews as well as summaries provided by the principal and support teacher. It also noted that some time after EQZ’s interview with KARI, he telephoned a compliance officer at KARI and said that he had read over the transcripts of the interviews and he had been thinking over the Christmas break, and that he believed that although he did not mean to lie at the time of the interview, that he may have made those comments about Child A being sent back to KARI and no longer having a father. He apologised for not saying so at the time of the interview.

49. The investigator concluded that the allegation against EQZ was sustained. She found the allegation to be sustained and stated that due to both the sustained finding of assault alongside EQZ’s inability to acknowledge the inappropriate and grossly improper actions that he is no longer fit to remain an authorised carer.

50. On 9 March 2020, KARI notified EQZ that his authorisation had been cancelled.

51. EQZ applied for an internal review of the decision. On 16 April 2021, the decision to de-authorise EQZ was upheld.

EQZ’s evidence

52. EQZ provided an affidavit and was cross-examined at the hearing.

53. EQZ was aware that Child A had “trauma in his background, including exposure to violence and neglect”. He was informed by Child A’s caseworker that Child A’s grandmother had murdered someone and that the grandmother did not want to care for Child A. EQZ assumed this had impacted on Child A. EQZ was told by KARI that Child A’s brother would also come to live with him after Child A had first formed an attachment and was settled.

54. We accept EQZ’s evidence that when Child A came into his care, EQZ wanted to be a good role model for Child A and that he ensured Child A had his own room, plenty of food and that he wanted to take good care of Child A to help “turn him around”.

55. EQZ stated that he set boundaries for Child A, used positive reinforcement strategies and aimed to give him stability. EQZ was teaching Child A responsibilities and sought to instil appropriate behaviour by giving him small tasks around the home, such as washing up or tidying his room, which he would reward Child A by allowing visits with his friends. On occasions when Child A did something wrong, EQZ stated that he would give him consequences like taking the TV out of his room or taking the iPad from him. Child A was following the rules and seemed to EQZ to be settling in well.

56. EQZ’s unchallenged evidence was that Child A started sobbing in his dreams which EQZ reported to his caseworker. EQZ was informed that Child A’s brother had allegedly sexually interacted with Child A. EQZ requested counselling for Child A. EQZ discussed Child A’s alleged sexual abuse with the support teacher and deputy principal at the school Child A attended. At a meeting at his home, the KARI caseworker told him not to discuss “this type of thing” with the school as they had not been told about Child A’s past in detail. EQZ believed he was acting in Child A’s best interests by being honest with the school about these issues.

57. Up until Child A was taken from EQZ’s care and EQZ received the Investigation Report, EQZ said he had been unaware that Child A had been routinely violent in the past and had exhibited “some extreme trauma behaviour and violent behaviours such as headbanging, food gorging and swearing”. He said that he should have been told about this by KARI.

58. In the days prior to the altercation, Child A had been upset as a planned visit with his brother had been cancelled by the KARI caseworker. As far as EQZ was aware, Child A attended the Breakfast Club before school where children were given something to eat and were able to play with other kids.

59. EQZ candidly admitted that he grabbed Child A’s wrist and that he threatened to bite Child A, but that this was only after the child had punched, scratched and bitten him on the arm. EQZ said he thought by restraining Child A, he was doing so in a way in line with the Code of Conduct, to prevent the child from further hurting EQZ or harming someone else.

60. In cross-examination he resolutely denied that he bit Child A. He also denied that he ever said words to Child A to the effect that he did not want to be his dad anymore or that he was sending him back to KARI. This is despite making an earlier concession that he recalled (later in January 2020) that he said something to the child like “well you’ll have to go back to KARI”.

61. In cross-examination, EQZ said that he did not accept any blame as the school caused the situation and did nothing to intervene. He also said the evidence of the principal and support teacher was untrue.

62. EQZ said he was shocked and panicked when Child A attacked him and if he had been better prepared by KARI (including training and information about Child A’s past violent behaviours) he may not have reacted the way he did.

63. While EQZ accepted that some of the things he said may demonstrate that he lacked insight, he put that down to his lack of knowledge about the child’s behaviour. At no time in cross-examination did he accept responsibility for his actions on 6 November 2020.

64. EQZ also denied that he said to Child A words to the effect “you don’t have a dad, I’m sending you back to KARI”.

65. There is no dispute that Child A had a troubled background and history of biting, swearing, hitting, spitting, head banging and food gorging. EQZ denies that he was informed of this history, although KARI made the school aware of the child’s history.

66. We had no reason to doubt that EQZ genuinely believed he could physically restrain Child A to prevent harm to himself or others. It is the nature of that restraint that is in issue here.

Principal’s evidence

67. The principal, who has been in that role for over 12 years, was cross-examined at the hearing.

68. He reported having had very positive interactions with EQZ prior to the incident but said that the incident was burned on his mind as it was quite confronting, unexpected and required his full attention.

69. In cross-examination he confirmed that he did not actually see EQZ bite Child A but he did hear EQZ threaten to bite him. He said that EQZ was hurting Child A holding tightly with a strong, forcible hold on Child A’s arms while Child A’s head was tilted in an awkward direction and he was screaming for EQZ to let him go.

70. The principal said he kept asking EQZ to let go of the Child A. He heard EQZ say “If you’re going to hurt me, then I’ll hurt you.” The principal said he was trying to convince EQZ to let go of Child A and said to EQZ “what will he do if you let him go” and EQZ said “he’ll probably attack me again or someone else”.

71. After the incident, the principal stated that EQZ said to him words to the effect that he did not get paid enough which he thought was a surprising comment in the context of what had just occurred.

72. We did not have any reason to doubt the veracity of the principal’s evidence.

Support teacher’s evidence

73. The support teacher has been the student liaison support officer at the school for 6 years. She said she is trained in the management of actual or potential aggression but that the 6 November altercation was worse than anything she had witnessed between two adults let alone a child and an adult; she will never forget it.

74. She has regular contact with Child A since he commenced at the school. It was her role to settle Child A into the school and she worked one on one with him. She was aware he had suffered trauma and violence. In particular she was aware Child A had a history of violent behaviours including biting, head banging, swearing, hitting and spitting.

75. The support teacher said that all her interactions with EQZ prior to the incident had been positive.

76. During the alteration on 6 November, the support teacher was in a very close proximity, about 25-30 cm from EQZ and Child A and could see everything clearly. She was on the left of EQZ and another teacher was directly opposite her on the other side of EQZ with both of them trying to leverage EQZ’s arms off Child A.

77. The support teacher said she was so close that she could see Child A was hurt and distressed. She tried to move EQZ’s left arm to free the child but was physically unable to remove EQZ from him. She said that EQZ lost control and was not able to control his impulses; that it was as though he was playing tit for tat – everything Child A did to EQZ, EQZ did back and he said to Child A “If you hurt me I’ll hurt you harder”.

78. She said she saw EQZ dig his fingers and drag them back along Child A’s arm; saw EQZ pinch Child A and bite Child A’s shoulder and push Child A against the fence.

79. The support teacher also heard the conversation in which EQZ said to Child A

80. After the incident, the support teacher stated that Child A was rocking in a corner, against the fence and hitting his head with his fist. He was inconsolable and distraught and she was doing everything she could to try to calm him down.

81. At some point, EQZ reappeared and stood over Child A yelling at him. Child A was inconsolable.

82. We found the support teacher’s evidence compelling. We had no reason to doubt the veracity of her evidence.

EQZ’s submissions

83. EQZ contended that there were inconsistencies in the evidence of the principal and the support teacher which prevented a conclusion that their evidence should be believed. Further, as the two witnesses with knowledge of Child A’s history of violent behaviour had never seen this type of behaviour before, combined with the optic of a large man with a child in all the commotion, it was fair that they would remember the incident as traumatic and the restraint as violent – they were suffering from sensory overload. Yet, EQZ responded with such force because Child A’s attack was violent which, it appeared to be contended, was necessary restraint to protect from harm.

84. EQZ also suggested that the principal’s and support teacher’s evidence was unreliable given they were not required to recount this event in writing until some three months after the altercation when they prepared their summaries; they more than likely discussed what had occurred with each other and now were given evidence some lengthy period of time since the events occurred.

85. It was also submitted that we should not accept, in the absence of photographic evidence, that Child A had in fact been bitten.

86. EQZ submitted that his version of events on 6 December should be believed but conceded that if the Tribunal accepted KARI’s version including the bite (putting aside the verbal interactions), this conduct would constitute an assault, would also constitute a breach of the Code of Conduct and the correct and preferrable decision would be to affirm KARI’s decision.

87. However, if we did not find that EQZ had bitten Child A, it was submitted that we would need to determine whether the conduct amounted to a reasonable restraint under s 158 of the Care Act which is lawfully justified and therefore not reportable conduct. Given EQZ’s belief that he needed to use such force to prevent Child A from further hurting him or possibly someone else, it was submitted that his restraint was justified.

88. In respect of the verbal allegation, this also requires an assessment of the versions presented. It was submitted by EQZ that if we were to accept KARI’s version, while concerning, it does not rise to the level of “significant” verbal abuse required under s 20 Children’s Guardian Act (for reportable conduct).

89. Further, we would still need to exercise our discretion to determine whether EQZ’s conduct denies EQZ suitability to be carer.

90. EQZ also made a submission that he had been denied procedural fairness in the preparation of this case. KARI had withheld the names of the witnesses so that EQZ could not properly prepare his case. However, after putting on written submissions in October 2021 addressing this issue, KARI provided the witnesses names and they were available for cross-examination at the hearing.

91. EQZ maintained a submission at the hearing that one of the issues in dispute was whether EQZ had been denied procedural fairness in relation to KARI’s conduct both in the investigation (which was said to be flawed including for the reason that there was no photographic evidence of the child’s alleged bite mark) and in the preparation of its case including the manner in which evidence was drip fed to EQZ. There was also the contention that KARI should have obtained CCTV footage and their failure to obtain this relevant evidence meant EQZ had been denied procedural fairness.

92. The related contention was that as EQZ had attempted to obtain CCTV footage of the school to prove his version of events was correct, despite their being no production of footage (for the reason that it apparently does not have such footage of the area), we should be satisfied his version of events should be believed as what other reason would have to go to such lengths to prove he was telling the truth.

KARI’s submissions

93. KARI submitted that there were three reasons why the decision under review should be affirmed:

1. EQZ is not a suitable person for authorisation because he has breached the Code of Conduct in that he has failed to “provide a care environment where the child is not exposed to physical… emotional, psychological or verbal abuse, ill treatment or neglect”. Further, during the altercation there were multiple instances of physical assault by EQZ which are not appropriate forms of behaviour management and constitute ill-treatment of the child. Two examples were EQZ biting Child A in response to being bitten and EQZ verbally abusing Child A which constituted “emotional blackmail and manipulation”.

2. EQZ’s lack of remorse, introspection and consideration for improvement demonstrates his is unsuitable to have authorisation;

3. There is a breakdown in trust between EQZ and KARI which should be a factor in favour of cancelling EQZ’s authorisation.

94. It was also submitted that issues raised by EQZ about procedural fairness do not arise because it is not part of the Tribunal’s role to review the conduct of KARI in its investigation.

Consideration

Factual findings

95. Based on all of the evidence before us we make the following findings on the balance of probabilities:

1. EQZ bit Child A on the arm (biting finding). While EQZ emphatically denied he bit Child A, we found the support teacher’s evidence more persuasive and we give Child A’s contemporaneous interview (which occurred 11 days after the incident) where he said he was bitten on the arm by EQZ, significant weight.

2. EQZ verbally threatened to bite Child A. EQZ admitted he said the words “If you bite me, I’ll bite you” and said this was so that Child A would think he was going to be bitten. In the interview with Child A shortly after the altercation, Child A recalled these words were used and apprehended that EQZ would bite him – indeed his recollection was that he was in fact bitten.

3. EQZ pinned Child A against the fence. EQZ’s affidavit stated that he restrained Child A “near the fence”. This was inconsistent with what he said during his interview two weeks after the incident to the effect that he had Child A “against the fence” and took advantage of his position at the fence to deflect the situation. In addition, we accept the evidence of the support teacher and principal who saw EQZ pin Child A against the fence.

4. EQZ dug his fingers into Child A. While the allegation was that EQZ dug his fingers into Child A’s leg, the support teacher was adamant that EQZ dug his fingers into Child A’s arm not his leg. Further, EQZ and the support teacher both gave evidence that EQZ’s arms were holding Child A’s arms. We do not consider he dug his fingers into Child A’s legs but we find that he dug them into Child A's arms.

5. We also find that EQZ said to Child A that he would send him back to KARI and that Child A no longer had a dad (verbal attack). Despite EQZ’s denial in cross-examination that he used such words, both the principal and support teacher gave evidence that they heard these words being spoken by EQZ and we accept their evidence. Child A recounted shortly after the altercation how he felt really cranky when EQZ said to him that he did not have a dad anymore; and the investigator recorded that EQZ called in January 2020 admitting that he said those words which he had previously forgotten saying.

Has EQZ breached the Code of Conduct?

96. EQZ’s conceded that a biting finding would mean he breached the Code of Conduct and it was also accepted this would mean EQZ is not a suitable person to be an authorised carer. Even if our biting finding was incorrect, we consider the threat to bite Child A was sufficient to lead to the same conclusion.

97. Biting and the threat to physically bite, both fall within the meaning of “assault” under s 20 of the Children’s Guardian Act. Biting Child A was not reasonable force necessary to restrain the child within the meaning of s 158 of the Care Act.

98. Threatening to bite is not “physical restraint” and so is not covered by s 158 of the Care Act. We do not see any justification for EQZ making this threat. In addition, the threat to bite Child A constitutes “ill-treatment” within the meaning of s 20 of the Children’s Guardian Act in that it is seriously inappropriate to threaten to harm a child as a way of managing the child’s behaviour.

96. Further, the verbal attack in our view also constituted “ill-treatment” as treatment which was a seriously inappropriate and cruel.

97. In respect of pinning Child A to the fence and digging his fingers into Child A, in our view these actions constitute “reasonable force” (s 158(3) of the Care Act) to restrain Child A in circumstances where EQZ was genuinely of the opinion and belief that he was trying to prevent a child, with a background of extreme violence and who was exhibiting violent behaviour, from further harming EQZ or someone else.

98. Given the biting, threatening to bite and verbal attack, we find that EQZ has breached the Code of Conduct as he has failed to “provide a care environment where the child is not exposed to physical … emotional, psychological or verbal abuse, ill treatment or neglect”.

Is EQZ and suitable person to be an authorised carer?

102. EQZ provided references attesting to his good character from three people. One reference dated 28 June 2017, was provided by friend who knew EQZ at that time for about 25 years. She said he was a loving ,caring father and mentor to children in his care. Beside the fact that the reference was made over 5 years ago, it also did not acknowledge the current issue before the Tribunal. We have given it little weight.

103. A second reference dated 6 July 2021, was from a friend who has known EQZ or 15 years and who also said that EQZ has an “amazing ability to care for children” and mentors his own son. The third reference is dated 6 July 2021 and is made by a former foster son of EQZ. The referee attests to EQZ being caring, loving and respectful.

104. While we accept EQZ has provided references which attest to his loving and caring nature, it is far from clear whether the referees have any knowledge of the events of 6 November 2020 and the circumstances for which these references were required and used. Accordingly, little weight has been given to these references.

105. There was no evidence that EQZ had undertaken any counselling or training in response to the stressful events that occurred on 6 November 2020.

106. Further, EQZ failed to acknowledge his role in the altercation with Child A, instead shifting blame to KARI and/or the school which demonstrates a complete lack of insight in the circumstances.

107. Having regard to EQZ’s breaches of the Code of Conduct, his lack of insight and his failure to take responsibility for his actions, we find that EQZ is not a suitable person to be an authorised carer.

108. We note EQZ concession that if we found he assaulted Child A (including biting Child A) that he was no longer a suitable person to be an authorised carer.

Discretion to cancel authorisation

109. The power to cancel an authorisation for an authorised carer is discretionary: even where one or more of the specified grounds of cancellation are established, there remains a discretion as to whether an authorised carer's authorisation should be cancelled. That discretion, in our view, should be exercised in accordance with the objects and principles of the Act, namely that the safety, welfare and well-being of children are paramount.

110. Further, as was the situation in EKH vBurran Dalai Aboriginal Corporation Inc (No 2) [2021] NSWCATAD 344, a factor in favour of cancellation of EQZ’s authorisation is that there is a breakdown of trust between KARI and EQZ. This is evident in EQZ blaming KARI for alleging failing to make him fully aware of, and train him to deal with, Child A’s violent behaviour and further, his contention that the investigation by KARI was flawed.

111. With the objects of the Care Act in mind, on balance we are of the view that that our discretion should be exercised in favour of cancellation of EQZ’s authorisation as a carer.

Procedural fairness

112. We reject EQZ’s submissions in respect of procedural fairness. First, the Tribunal’s task on this review is not to review the conduct of KARI: see CXB v Birripi Aboriginal Corporation Medical Centre [2017] NSWCATAD 372 at [114].

113. Secondly, while during the initial stages of these proceedings, KARI had redacted the names of witnesses, this was rectified and EQZ was given the opportunity to cross-examine each of those witnesses at the hearing.

114. A merits review is a hearing de-novo and the Tribunal stands in the shoes of the decision maker determining the matter afresh on the basis of the materials before the Tribunal even if that includes materials that were not before the original decision maker: Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77. However, there is no obligation on the original decision-maker to justify his decision with further evidence (such as CCTV footage).

orders

115. We order as follows:

1. The respondent’s decision to cancel the applicant’s authorisation as an authorised carer is affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 01 July 2022