FMP v Secretary, Department of Communities and Justice

[2023] NSWCATAD 128

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

FMP v Secretary, Department of Communities and Justice [2023] NSWCATAD 128

Hearing dates:

8 and 9 December 2022
13 January 2023 and 27 February 2023

Date of orders:

31 May 2023

Decision date:

31 May 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Higgins, Senior Member
L Houlahan, Senior Member

Decision:

(1) The decision of the respondent, made on 16 August 2022, to cancel the authorisation of the applicants is set aside and for abundant caution, a decision is made that the applicants’ authorisation is immediately restored.

(2) The decision of the respondent, made on 16 August 2022, to remove Child A from the day-to-day care of the applicants is set aside and in substitution thereof a decision is made that Child A is returned to the day-to-day care of the applicants by 14 June 2023.

Catchwords:

ADMINISTRATIVE LAW – Child Protection – Authorised carers – review of decision of the respondent to (a) remove a foster child from the applicants’ day-to-day care and (b) cancel the applicants’ authorisation as out-of-home carers – allegation of sexual abuse made against the male authorised carer – the requisite degree of satisfaction required to find that the alleged abuse did occur – in the absence of a finding that the alleged abuse did in fact occur, whether on the material before the Tribunal the male authorised carer nevertheless posed an unacceptable risk to the safety of the foster child in the care of the applicants

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)

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

Evidence Act 1995 (NSW)

Family Law Act 1975 (Cth)

Cases Cited:

BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523

Briginshaw v Briginshaw (1938) 60 CLR 336

Department of Communities and Justice (DCJ) and Janet and Xing-fu [2022] NSWChC 7

Health Care Complaints Commission v Dizon [2023] NSWCATOD 49

Isles & Nelissen [2022] FedCFamC1A 97

M v M (1988) 166 CLR 69

Category:

Principal judgment

Parties:

FMP and FMQ (Applicants)
Secretary, Department of Communities and Justice (Respondent)

Representation:

Counsel:
B Dean (Respondent)

Solicitors:
A Hansell (Agent for the Applicants)
Crown Solicitor (Respondent)

File Number(s):

2022/00252746

Publication restriction:

Other than the names of the officers of the respondent, pursuant to s 65(2) of the Civil and Administrative Tribunal Act 2013 (NSW), a person must not, except with the consent of the Tribunal, publish or broadcast the name of any person –

(a) who appears as a witness before the Tribunal in any proceedings, or
(b) to whom any proceedings in the Tribunal relate, or
(c) who is mentioned or otherwise involved in any proceedings in the Tribunal,
whether before or after the proceedings are disposed of.

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.

reasons for decision

1. The applicants, FMP and FMQ, seek administrative review, under s 28 of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) and ss 245(1)(a1) and (c) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (Care Act), of the decision of the respondent:

1. made on 18 August 2022, to cancel their authorisation as a foster carer, under cl 42 of the Children and Young Person (Care and Protection) Regulation 2012 (2012 Care Reg) because they were no longer a suitable person to be an authorised carer; and

2. made on 11 July 2022 and confirmed on 18 August 2022, to change the placement of the foster Child (Child A) who had been in their care since May 2020 because ‘following an assessment’ it had been ‘deemed’ that she was ‘unsafe remaining’ in the applicants’ care.

2. The applicants are a young married couple, with two children of their own, aged nine and 12 years of age. In May 2020, the respondent authorised the applicants to be day to day out-of-home carers of a foster child, Child A: Care Act ss 136 and 137. At the same time, the respondent placed Child A into the care of the applicants – Child A was 17 days old. Child A is the fifth child of FMP’s paternal aunt, Ms XY (birth mother).

3. The respondent’s written reasons for each decision are the same. In summary, the reasons are as follows:

1. on 23 September 2021, FMP being named as a person of interest in a report received by the respondent Department of ‘Sexual Abuse: Suspicious Indicators consistent with sexual abuse’ of Ms XY’s eldest child, Child 1 who was nearly 13 years of age at the time;

2. the alternate assessment of 16 November 2021 where it was determined that Child A was ‘Safe with Plan’, as agreed with the applicants where FMQ was to be responsible for the primary care of Child A and Child A was not to be left unattended with FMP;

3. on 4 January 2022, FMP being named as a person of interest in a further detailed report of ‘Sexual Abuse’ concerning Child 1 which was under investigation by NSW Police;

4. during a home visit on 11 February 2022 a revised safety plan was orally agreed with the applicants where FMP was not to reside in the home, but could be present in the home for one hour per day from 4.45pm to 5.45 pm; and

5. at 7.00 pm, on 11 July 2022, the respondent’s caseworkers conducted a home visit where they found FMP to be present in the home outside the hours agreed in the safety plan and decided that Child A was no longer considered to be ‘safe in the home due to the [applicants’] non-compliance with the agreed safety plan’.

4. FMP has at all times denied the alleged sexual abuse of Child 1. He has however, always acknowledged that he did, on one occasion, sleep in the same bed as Child 1 who was, at that time almost 13 years of age and in the day-to-day care of FMP’s father and mother, together with her three younger siblings (Child 2, Child 3 and Child 4).

5. The applicants lodged their application for administrative review of the abovementioned decisions on 25 August 2022. Subsequently, they made an application for an interim order that the abovementioned decisions be stayed pending the determination of their substantive administrative review application. That application was heard on 29 September 2022 and on 11 October 2022, the Tribunal refused their application for a stay: FMP v Secretary, Department of Communities and Justice [2022] NSWCATAD 330 (Tribunal’s stay decision).

6. We heard the applicants’ application over four days, on 8 and 9 December 2022, 13 January 2023 and 27 February 2023. During this time, we had the benefit of hearing oral evidence from each applicant and Ms TR, who made the decisions the subject of review. Ms TR is the Manager Casework of the respondent’s local Community Service Centre responsible for the overall management of the placement of Child A into the day-to-day care of the applicants (CSC A).

7. The other children of Ms XY live in a region within NSW that differs to where Child A was living when she was in the applicants’ day-to-day care. Hence, the management of the placement of Child A and her siblings was and are managed by different Community Service Centres (CSCs) of the respondent. We have dealt with these below.

Tribunal’s jurisdiction and role of the Tribunal

8. At [16] – [20] of the Tribunal’s stay decision, the Tribunal found that the Tribunal had jurisdiction to hear and determine the applicants’ application for administrative review of the abovementioned decisions.

9. As noted by the Tribunal, at [18], s 28(1)(a) of the Community Services (Complaints, Review and Monitoring) Act 1993 (NSW) provides that a person may apply to the Tribunal for administrative review, under the Administrative Decisions Review Act 1997 (NSW) (ADR Act) of a decision that is an administratively reviewable decision under s 245 of the Care Act. That section relevantly provides as follows:

245   Decisions that are administratively reviewable by Civil and Administrative Tribunal

(1) Each of the following decisions made under or for the purposes of this Act or the regulations is an administratively reviewable decision for the purposes of section 28(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993—

(a)  …,

(a1)  a decision of the relevant decision-maker to cancel a person’s authorisation as an authorised carer, other than a decision to cancel an authorisation granted on a provisional basis or a decision to cancel an authorisation on the occurrence of an event prescribed under section 137(2)(e),

(b)    (Repealed)

(c)  a decision of the relevant decision-maker to grant to, or to remove from, an authorised carer the responsibility for the daily care and control of the child or young person, …

10. The term ‘relevant decision maker’, is defined in s 245(2) to mean the person or body authorised by or under that Act or regulations to make the decision, not being the Children’s Court. Section 28(2) of the Community Services (Complaints, Review and Monitoring) Act, on the other hand provides that the ‘relevant decision maker’ in that section means the following persons:

(2) In this section—

relevant decision maker means the following—

(a) the Attorney General, and Minister for the Prevention of Domestic Violence,

(b) the Secretary of the Department of Communities and Justice,

(c) the Children’s Guardian appointed under the Children’s Guardian Act 2019,

(d) (Repealed)

(e) a service provider (other than an authorised carer within the meaning of the Children and Young Persons (Care and Protection) Act 1998)

11. In this case, both decisions were made by Ms RT, who is employed by the Department of Communities and Justice (respondent Department) but, is otherwise not a person falling within the description in s 28(2) of the Community Services (Complaints, Review and Monitoring) Act. Nor does Ms RT state that her decisions were made in her capacity as a delegate for the Secretary of the respondent Department. Instead, in her written notice concerning the decision to cancel the applicants’ authorisation, Ms RT advised that this decision was a decision made by the ‘Department of Family and Community Services (FACS)’. In her written notice concerning the decision to change the placement of Child A, Ms RT advised that this decision was made by the ‘Department of Communities and Justice’. That is, neither decision was stated to have been made by the respondent Secretary.

12. While this was not an issue raised in these proceedings, we accept that the decisions the subject of review were nevertheless purported to be made under s 245(1) of the Care Act and are therefore administratively reviewable decisions for the purpose of ADR Act: see ADR Act s 6(3). However, in future if Ms RT or any other person seeking to make an administratively reviewable decision under the Care Act or the Care Reg as a delegate of the respondent Secretary, Ms RT and that other person should ensure they have the relevant delegation to make the decision they intend to make.

13. The role of the Tribunal in this application is to determine the correct and preferable decision having regard to the relevant material before it and the applicable law: ADR Act s 63(1).

14. In this case, the applicable law is the Care Act and the Care Reg. In this regard we note the objects of the Care Act and the principles for the administration of that Act: Care Act ss 8 and 9. In particular, we note that the safety, welfare and well-being of the child or young person is paramount in the administration of that Act: Care Act ss s 9(1).

Matters in issue

15. Chapter 8 of the Care Act makes provision for out-of-home care, which is defined in s 135(1) to mean residential care and control of a child or young person that is provided by a person other than a parent of the child or young person and it is care provided in a place other than the usual home of the child or young person.

16. There are two types of out-of-home care. In this case, the applicable out-of-home care is statutory out-of-home care, and such care can only be provided by an authorised carer: Care Act ss 135A and 136.

17. Hence, in this case, the threshold matter for determination is the respondent’s decision to cancel the applicants’ authorisation, namely is it or is it not the correct and preferable decision having regard to the material before us and the applicable law. If it is the correct and preferable decision, then the decision to remove Child A from the applicants’ care is arguably also the correct and preferable decision.

18. At the time the respondent made her decision to cancel the applicants’ authorisation the applicable regulations were those set out in cl 42 of the 2012 Care Reg. Ten days after the decision was made, the 2012 Care Reg was repealed and replaced with the Children and Young Persons (Care and Protection) Regulation 2022 (NSW) (2022 Care Reg). The relevant provision in the 2022 Care Reg (cl 35) is in similar terms to cl 42. Nevertheless, cl 42 continues to apply in this case as it was the applicable law at the time the decision of the respondent was made: see 2022 Care Reg cl 50.

19. Clause 42 is in the following terms:

42 Cancellation or suspension of authorisations by designated agencies

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

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

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

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

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

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

Note—

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

20. A condition of a person’s authorisation as a carer is that the carer complies with the approved ‘Code of Conduct for Authorised Carers’: Care Act s 248C.

21. In this case, the respondent has not pointed to any specific provision within the above mentioned ‘Code of Conduct’ which the applicants failed to meet. Instead, the position of the respondent is that, given the allegations made by Child 1, the applicants’ breach of the February 2022 safety plan and their demonstrated inability to work co-operatively with the respondent caseworkers means that they are no longer suitable persons to be an authorised carer.

22. The respondent also contended that, for the reasons set out above, there is an unacceptable risk posed if Child A were to be returned to the day-to-day care of the applicants.

23. The applicants deny they breached the February 2022 safety plan. FMP, continues to deny that he sexually abused Child 1 on the night he slept in the same bed as her. FMQ does not seek separate authorisation in the event FMP’s authorisation is not restored. Both applicants also only seek to be authorised as kinship carers for Child A, who they contend has been subject to significant risks of harm through the respondent’s placement choices since she was removed from their day-to-day care.

24. In summary, the primary matters in dispute in this application are as follows:

1. did the applicants breach the February 2022 safety plan?

2. did FMP sexually abuse Child 1 as alleged?

3. does FMP otherwise pose an unacceptable risk of harm to Child A if she were to be returned to the applicants’ day-to-day care?

4. are the applicants otherwise no longer suitable persons to be authorised carers? and

5. in the event the applicants’ authorisations are restored, should Child A be returned to their day-to-day care?

25. For the reasons set out below:

1. we find that the applicants did not breach the February 2022 safety plan;

2. we find, by applying as a guide the civil standard of proof, that on the material before the Tribunal it is not established that FMP sexually abused Child 1 as alleged. On the contrary we have considerable doubt that, other than sleeping in the same bed as Child 1, FMP acted inappropriately towards Child 1 on the night in question;

3. having regard to the safety, welfare and well-being of Child A being paramount, we are not satisfied that FMP poses an unacceptable risk to the safety of Child A if she were returned to the applicants’ care. On the contrary, we find that the risk of sexual abuse occurring if Child A were to be returned to the day-to-day care of the applicants is very low;

4. we do not otherwise find that the applicants are no longer suitable persons to be authorised carers; and

5. The decision of the respondent, made on 16 August 2022, to cancel the authorisation of the applicants is set aside and for abundant caution, a decision is made that the applicants’ authorisation is immediately restored;

6. the decision of the respondent, made on 16 August 2022, to remove Child A from the day-to-day care of the applicants is set aside and in substitution thereof a decision is made that Child A is immediately returned to the day-to-day care of the applicants subject to the respondent immediately appointing:

1. a senior specialist caseworker with no previous involvement in the care of Child A or her siblings, or

2. a suitably qualified independent specialist/ assessor,

to provide all necessary support to Child A and the applicants in the return of Child A to the applicants’ care.

Material before the Tribunal

26. A large amount of material has been provided by both parties, the majority of which was included in a tender bundle, prepared by the respondent with the agreement of the applicants. In these reasons for decision, other than for Ex R5, R6, R7 and R8, the references to page numbers are a reference to the page number in the tender bundle.

27. In support of their case, the applicants relied on the following material;

1. affidavit of FMQ, sworn on 7 November 2022 (Ex A1);

2. affidavit of FMP, sworn on 1 December 2022 (Ex A2). In this affidavit FMP said that given the seriousness of the allegation made against him, and because he is dyslexic, he had asked his maternal Uncle to assist him in preparing his response to the Reportable Conduct Unit (RCU) in its investigation of the allegations. A copy of that response was attached to FMP’s affidavit. While it is not disputed that FMP has difficulty reading and writing, we have given little weight to the attachment to FMP’s affidavit because the attachment is primarily in the form of submissions and not evidence;

3. affidavit of FMP and FMQ, sworn on 26 September 2022 (Ex A3);

4. affidavit of FMP, sworn on 12 September 2022 (Ex A4). This affidavit was sworn for the purpose of Children’s Court proceedings initiated by the applicants almost immediately after Child A was removed. The Children’s Court proceedings were subsequently withdrawn. around the time the applicant lodged this application;

5. the following affidavits sworn by FMQ, for the purpose of the Children’s Court proceedings:

1. affidavit sworn on 12 September 2022 (Ex A5);

2. affidavit sworn on 19 September 2022 (Ex A6); and

3. affidavit sworn on 28 September 2022 (Ex A7); and

6. affidavit of FMQ sworn on 21 October 2022 (Ex A8).

28. The applicants also sought to rely on affidavits affirmed by FMP’s maternal uncle who acted as agent for the applicants in these proceedings. We did not accept these affidavits into evidence as we formed the view that they were of little, if any, assistance to us in determining the substantive factual matters in issues in this application. On 27 February 2023, we made an order revoking the leave that had previously been granted to FMP’s uncle to act as the applicants’ agent.

28. In support of her case, the respondent relied on the following affidavits affirmed by Ms TR:

1. affidavit affirmed on 27 September 2022 (Ex R1);

2. affidavit affirmed on 7 October 2022 (Ex R2);

3. affidavit affirmed on 31 October 2022 (Ex R3);

4. affidavit affirmed on 6 December 2022 (Ex R4); and

5. affidavit affirmed on 20 February 2023 (Ex R8).

30. The respondent also relied on the s 58 documents (Ex R5) and an internal document noting that, on 24/05/2021, the respondent provided the applicants with links to several online webinars for carers (Ex R6).

31. During the hearing, in December 2022, we called for the production of the October 2022 Case Practice Review (Ex R7). The Review was undertaken by the respondent’s Office of the Senior Practitioner relating to the actions taken by the respondent following receipt of the ROSH reports.

32. FMP and FMQ both gave oral evidence and were cross-examined by counsel for the respondent. We found FMQ to be an impressive and credible witness. We make a similar finding about FMP who was fully open and frank and on occasion gave evidence contrary to his own interest.

33. Ms TR also gave evidence and was cross-examined. While Ms TR was open and frank in giving her evidence, we found that she occasionally appeared to demonstrate a lack of objectivity.

Background

34. The applicant FMP is 31 years of age. He identifies as aboriginal. He is employed as a manual worker.

35. The applicant FMQ, is 30 years of age. She and FMP married in early 2011. As noted above, the applicants have 2 children, a 12 year-old daughter and a son who is nine years old. They live in a region south of Sydney.

36. FMP is the eldest son of his father (FMP Senior) and his mother (wife of FMP Senior). FMP has two brothers, a younger brother and an older brother. His older brother is the son of his mother from a previous marriage.

37. FMP Senior also identifies as aboriginal. He has five siblings, including Ms XY, the birth mother of Child 1, Child A and their other siblings. Ms XY is almost 20 years younger than FMP Senior and six years older than FMP.

38. GM is the grandmother of FMP and the mother of FMP Senior and Ms XY. She also identifies as aboriginal.

39. FMP and FMQ say they have a close relationship with their respective parents and parents-in-law. FMQ’s mother lives in the same town, not far from the applicant’s home. She also developed a close relationship with Child A.

40. FMP’s parents live in a region northwest of Sydney. FMP, FMQ and their children often visit FMP’s parents during the school holidays.

Removal of Child 1, Child 2, Child 3 and Child 4 – January 2019

41. On 4 January 2019, the respondent removed from the care of Ms XY’s then four children (Child 1, Child 2, Child 3 and Child 4) due to concerns about on-going drug use and the children being exposed to repeated incidents of violence perpetrated against Ms XY by her then partner. At the time, Ms XY’s children were aged:

1. Child 1 was 12 ½ years of age

2. Child 2 was 10 years old

3. Child 3 was between 5 and 6 years of age

4. Child 4 was about four weeks old

42. Child 1 and Child 2 have the same birth father. Child 3 and Child 4 also have the same birth father, who is not the same birth father as the birth father of Child 1 and Child 2. After the Children were removed, the Children’s Court made orders granting parental responsibility for each Child to the Minister.

43. After being removed from the care of their mother, the four children were placed into the care of FMP Senior and his wife. At the time, the children’s grandmother (GM) was living in the flat attached to the home of FMP Senior and his wife.

44. The placement of the four children into the care of FMP Senior and his wife is managed by the local CSC where they live (CSC F).

45. In October that year (2019) the children’s grandmother, GM, moved to live with another of her daughters as differences had arisen between her and FMP Senior and his wife. Child 1 also left the care of FMP Senior and his wife around the same time. Child 1 went to live with GM who subsequently secured social housing in the outer regions of Sydney. The placement of Child 1 was originally managed by the local CSC where GM lives (CSC GM).

Birth and removal of Child A – May 2020

46. Child A was born in May 2020. As we have already noted, Child A was Ms XY’s fifth child. Child A has a different birth father to that of her older siblings.

47. After her birth, Child A remained in the care of Ms XY for ten days. The respondent caseworkers then removed Child A from the care of Ms XY and placed her into the care of FMP Senior and his wife. Seven days later (around 28 May 2020), having approached the applicants, the respondent’s caseworkers placed Child A into the care of the applicants. As we have noted above, this placement is managed by the local CSC, CSC A, where the applicants live.

48. In October 2020, Child 2 also left the day-to-day care of FMP Senior and his wife and went to live with her grandmother, GM. While the placement of Child 1 and Child 2 was initially managed by CSC GM, the management of the placement was subsequently transferred to an aboriginal designated agency where the grandmother lives (DA GM). We are unaware when this transfer occurred.

49. On 1 December 2020, on the application of the respondent, the Children’s Court made a final care order, under s 79 of the Care Act, allocating to the Minister all aspects of parental responsibility for Child A until she reached 18 years of age. In support of that application and in accordance with s 83 of the Care Act, the respondent prepared and submitted a permanency plan specifying that the placement of Child A with the applicants was assessed as the most suitable long-term placement for Child A.

50. Sometime around July/August 2021, Ms XY gave birth to her sixth child, Child 6. Child A and Child 6 have the same birth father. By the time Child 6 was born, Ms XY had ceased her relationship with the birth father and with the assistance of her mother, GM, Child 6 has remained in Ms XY’s care.

ROSH report – 23 September 2021

51. On 23 September 2021, the respondent’s helpline received a risk of significant harm report (ROSH report) that Child 1 had made a disclosure alleging that she had been sexually assaulted by FMP, at his parent’s home, when she was 12 years old. Child 1 was reported to have said that FMP had ‘fingered her’ and placed her hand on his penis, while she pretended to sleep. She said she was concerned that her younger sister, Child 2, may also have been assaulted by FMP (see Ex R1 p 12).

52. Following the ROSH Report, an investigation was commenced by the Joint Child Protection Response Unit (JCPRU) and the Reportable Conduct Unit (RCU).

53. On 27 September 2021, the caseworker for Child 1 sent her a text message to say that the matter was with police and that they wanted to obtain a statement from her (Ex R4 p 417). Child 1 responded to say she did not know what the caseworker was talking about and that she had never been touched. On 11 October 2021, a JCPRP caseworker sent a text to Child 1 asking if she was okay and that she wanted to meet with her (Ex R4 p 418). Child 1 responded to say ‘all good’ and that she did not want to talk ‘I told you this leave me alone’.

54. On 9 November 2021 the caseworker for Child 1 sent an email to another caseworker and the RCU to which she had attached a screen shot of messages which referred to an allegation of a kind Child 1 had made. The caseworker said it was not possible to tell if it was a message that had been sent by Child 1: Ex R4 p 418-419. On the following day, the JCPRP caseworker attended the school to talk to Child 1. Child 1 declined to speak to the case worker but did say words to the effect: ‘I am going to fucking kill my mum for saying anything’: Ex R1 p 34.

55. On 12 November 2021, the caseworker for Child 1 had a telephone discussion with GM (Ex R4 p 419). In that telephone conversation GM said Child 1 had told her what FMP had done, she felt Child 1 had no reason to make it up and that she felt sorry for her. She said she had spoken to Child 2 if FMP had done anything to her. She said FMP ‘would wrestle with her blew on her neck’. GM said that she felt that this was ‘grooming’.

56. As Child 1 refused to be interviewed or discuss the matter in any capacity, the JCPRU did not pursue the investigation any further.

14, 15 and 17 November 2021 – interview with FMP and the agreed safety plan

57. However, in November 2021, the CSC A respondent’s caseworkers undertook an ‘Alternate Assessment’ of a risk of harm to Child A considering the September ROSH report: Ex R1 p 32-48. This assessment was undertaken by Child A’s caseworker who spoke to the applicants on 14, 15 and 17 November 2021. FMP was interviewed by the caseworker on 14 November 2021. In his interview, FMP admitted sleeping in the same bed as Child 1 one night when he was visiting his parents. He said nothing happened: EX R1 p 43. The caseworker noted that (at pp 44 and 46):

1. FMP had been co-operative in agreeing to be interviewed and answering questions. FMP also agreed to a safety plan being put into place for Child A;

2. Child A appeared to have a healthy relationship with FMP;

3. FMP had shown protective abilities that may allow him to keep Child A safe. However, as he was a person of interest in the assessment, it could not be determined if FMP was able to protect Child A from the allegation made in the report;

4. it was safe for Child A to remain in the applicants’ care whereby FMP would have no care responsibilities or unsupervised time with Child A. The applicants agreed with this safety plan, which the caseworker said would be reviewed weekly. However, no such review ever occurred.

58. On 26 November 2021, in a telephone call between the caseworker of Child 1 and GM, GM said she believed Child 1 and that she was concerned that FMP Senior and his wife ‘are not believing the allegation and want to protect [FMP] which is causing a family breakdown’: Ex R4 p 421.

59. On 20 December 2021 the caseworker for Child 2 asked her if anyone had ever visited FMP Senior and his wife: Ex R4 p 422. Child 2 responded by saying FMP and FMQ. In response to a question as to whether she felt uncomfortable when being wrestled by FMP, Child 2 said a firm ‘No’.

4 January 2022 ROSH

60. On 4 January 2022, the respondent’s helpline received a ROSH report, which included a copy of a text message Child 1 had sent at 8.15pm on Sunday 2 January 2022: Ex R1 p 18. In that text message, Child 1 said that she had decided to talk about FMP having touched her when she was 12. She said she did not trust FMP having the care of her younger sister, Child A. She also said that she did not feel comfortable about FMP being around her other sisters and went on to describe her recollections of what had occurred on the night in question and FMP’s behaviour towards her prior to that night.

Child 1 interviewed by police – 25 January 2022

61. On Monday 25 January 2022, a police officer from the RCU interviewed Child 1 at the local office of the JCPRU: Ex R3 p 242-278. Child 1 attended the office with her mother, Ms XY, her caseworker and her boyfriend. We have dealt with that interview below.

Revised safety plan – 11 February 2022

62. On 11 February 2022, the caseworker met with the applicants to discuss a revised safety plan pending the investigation of the allegation made by Child 1 against FMP: Ex R5 p 195. We have dealt with this safety plan below.

63. In early March 2022, the CSC A caseworkers noted that they could not interview the ‘family’, FMQ or FMP given the current police investigation. The caseworkers went on to note that a further ‘Alternate Assessment’ would thereby not be accurate: Ex R5 p 205. It was also noted that family members who may be assessed as being suitable to care for Child A should be identified and that there should be regular home visits and phone calls to check on Child A’s ongoing safety and FMQ’s ability to care for Child A. No such checks appear to have been undertaken.

Police interview FMP Senior and wife – 24 June 2022

64. On 24 June 2024, five months after Police interviewed Child 1, police executed a search warrant on the home of FMP Senior and his wife. FMP Senior and his wife fully cooperated with police. They were also interviewed by the same police officer who had interviewed Child 1. FMP and his wife each provided a statement for police: Ex R3 235-241.

Police interview FMP – 29 June 2022

65. On 29 June 2022, FMP voluntarily attended the local police station where he agreed to be interviewed by the same police officer who had interviewed Child 1 and another Detective Senior Constable from the Police Child Abuse Unit: Ex R3 p 319-349. Again, we have dealt with this interview below.

July 2022 – removal of Child A from the applicants’ care

66. On 4 July 2022, Child A’s caseworker telephoned FMQ to get an update on how she and Child A were going. FMQ is recorded as having said that she and Child A had been sick with influenza which meant that they had to cancel the visit with Ms XY the previous week: Ex R5 p 214. FMQ is also recorded as having requested whether FMP could spend time with them as a family over the school holidays. She explained that she had planned to go to a show and that FMP Senior and his wife were coming to visit. It was noted that a home visit was booked for the following Monday, 11 July at 3 pm. Later that day, after having consulted the caseworker for Child 3 and Child 4, Child A’s caseworker sent a text message to inform FMQ that the respondent was fine with the arranged visit. However, she added that a minimum of 2 persons (being herself, FMP Senior and FMP’s mother) were to be present at all times that FMP was with them at any external event. The caseworker also said that FMP could be at the home while his parent visited, but Child A was not to be at the home at the same time.

67. Around mid-day on 11 July 2022, Child A’s caseworker telephoned FMQ to get an up-date on how the weekend went and to re-schedule the visit that day: Ex R5 p 220 -221. The caseworker has recorded that she asked if FMP would also be available for the proposed re-scheduled visit the following day. She said they needed to speak to them both about the sexual allegations and Child A's future placement. The caseworker said she would pick-up Child A from her day-care the following day. The caseworker noted that she had informed FMQ that she had accepted a new role within the respondent Department, and she would be getting a new caseworker who will also be at the meeting. FMQ is recorded as saying she wanted to keep Child A for as long as possible and that they would adhere to the safety plan. During their telephone conversation FMQ also sought clarification on aspects of the current safety plan – i.e. could FMP come and do maintenance in the home, the garden or in the garage when Child A was home.

68. Having informed Child A’s caseworker that FMP was not available the following day, FMQ undertook to let the caseworker know when he would be available. At around 1 pm , FMQ advised the caseworker that FMP would not be available until the following Thursday.

69. At 7 pm on Monday 11 July 2022, Child A’s caseworkers made an unannounced visit to the applicants’ home: Ex R1 p 54. On their arrival at the home, FMP was there and about to leave, which the caseworkers said was outside the time it had been agreed he could be there (5pm to 6pm). After speaking to the Caseworker Manager, the applicants were informed that Child A would be removed that night. The applicants were also informed that the respondent Department had substantiated the allegations made by Child 1 and that Child A would be unable to remain at their home regardless. Child A was placed into alternative authorised emergency foster care that night.

FMP corresponds with police – September 2022

70. On 4 September 2022, FMP sent an email to the Detective Senior Constable who had interviewed him to say that he had been informed by the RCU that the investigation of the allegation had been closed. As the investigation had been closed, FMP requested that this be confirmed in writing and that he would not be charged: Ex A6 p 588. The Detective Senior Constable responded by saying:

The status of the case is currently closed. However, cases can just as easily be reopened if further evidence comes to light. Therefore, I cannot tell you will never be charged for this matter.

71. Two days later, FMP sent a further email to the Detective Senior Constable seeking clarification of what he had said in his earlier letter: Ex A6 p 589-90. The Detective Senior Constable responded by saying:

The case is closed. However, it could be reopened, therefore I cannot tell you that you will not be charged for the offence, because it could be a possibility in the future.

Police advise the respondent that the investigation had been completed – September 2022

72. On 7 September 2022, the RCU sent an email to Ms TR to advise that the police investigation of the allegations made by Child 1 against FMP had been completed and that the police were not taking any further action due to ‘insufficient evidence’: Ex R5 p 255.

CSC GM ‘Alternate Assessment’ for Child 1 – 30 October 2022

73. On 30 October 2022, a caseworker from CSC GM (i.e. the local CSC where Child 1, Child 2, GM and Ms XY live) completed an assessment of risk concerning Child 1 and the allegations made against FMP. The assessment findings are contained in a proforma ‘Alternate Assessment (SARA Exception)’ report (Ex R4 p 460 – 468). The report concluded that Child 1 was not in need of care and protection as there was no further risk of harm because she no longer sees FMP.

RCU completes its investigation report – 24 November 2022

74. On 24 November 2022, the RCU completed its investigation report and concluded that it did not find sufficient evidence that FMP had engaged in the conduct as alleged and made a finding that the allegation was not sustained: Ex R4 pp 414-454 at 414. In its investigation summary report, the RCU confirmed its finding that the allegation was found not to be sustained but went on to say that there was ‘significant evidence of weight in support of the conduct occurring’: Ex R4 pp 456-458 at 458.

CSC GM determines Sexual Abuse substantiated – 5 December 2022

75. On 5 December 2022, based on the abovementioned ‘Alternate Assessment (SARA Exception)’ report, the CSC GM determined that the ‘Sexual Abuse Actual & Suspected is substantiated’ (Ex R4 p 472).

Did the applicants breach the safety plan?

The evidence

76. As noted above, the initial safety plan for the protection of Child A was discussed with and agreed to by the applicants in November 2021: Ex R1 p 37 and Ex R4 p 416-417. A revised safety plan was discussed with and agreed to by the applicants on 11 February 2022: Ex R5 p 195.

77. There is no dispute that, contrary to set practices and requirements, the caseworker did not prepare and send to the applicants a written notice that set out the terms of the safety plan as agreed in November 2021 and 11 February 2022. Hence, there was no written direction given by the respondent in regard to either safety plan and on this basis the ground in cl 42(d) of the Care Reg 2012 does not apply.

78. The caseworkers did, did however, make a record of what had been agreed in the respondent’s record keeping system. The caseworker’s record of the safety plan agreed to 11 February 2022 included the following (Ex R5 p 195):

1. whilst the investigation was ongoing FMP would not reside in the same home as Child A;

2. FMP would only be in the house with Child A for one hour per day: ‘This can be for dinner from 4:45 - 5:45 pm’. Whilst FMP is in the house with Child A, FMP is not to undertake any supervision or care duties for Child A - this is to be undertaken by FMQ or her mother;

3. FMP is able to attend the home whilst Child A is at pre-school;

4. the safety plan will be reviewed on a weekly basis.

79. At 7 pm on Monday 11 July 2022, Child A’s caseworkers made an unannounced visit to the applicants’ home: Ex R1 Annex E p 54. The respondent’s record of what occurred during that visit is recorded in an unsigned minute which relevantly states the following:

- Caseworkers... arrived at [Child A’s] home at 7 pm to complete an impromptu home visit did to determine of (sic) the safety plan is being followed by [FMQ] and [FMP]. There were two cars noted to be in the driveway. Caseworkers knocked on the door and after several minutes [FMQ] answered the door, stating [FMP] was at the home and was just leaving clothes in order, as they has a ‘late one’. [Child A] was awake and dressed in a onsie and holding a toothbrush, [FMQ] stated she was just about to be just to put her to bed.

- [FMQ] and [FMP] were asked if we could come in and sit down to talk. Manager casework was phoned in and put on loudspeaker. It was explained to [FMQ] and [FMP] that as the safety plan does not appear to be followed that we have worries for [Child A] and her safety in the home. Manager casework explained that due to the safety plan not being adhered to and due to [FMP] being an unauthorised person in the home this is a breach of the code of conduct. [FMQ] stated that [FMP] came over later but had just stayed the hour, caseworker... explained to [FMQ] that the agreed safety plan for [FMP] to be in the home is between the hours of 5pm and 6pm, and given that it's 7pm this is a significant amount of time outside the agreed times. [FMQ] stated that she ‘thought’ he could come for one hour every evening but was unaware there was a set time. [FMQ] stated that [FMP’s] work hours can vary so he is not always available to come over at exactly 5pm, [FMQ] stated ‘it's a miscommunication’. [FMQ’s] mother... was present in the home later to say goodbye to Child A and stated that [FMP] had ‘been home [in the mother’s home] all day waiting until he could come over’ to demonstrate that [FMQ] and [FMP] had been following the safety plan. Manager casework explained that [Child A] would not be able to remain in the home tonight due to the family not following the agreed safety plan. [FMQ] and [FMP] were visibly upset and teary, they did not challenge the decision. [FMQ] questioned what would happen with [Child A] and caseworker... explained that there was a carer available and arranged for [Child A] to go to tonight and for the short term. [FMQ] questioned if the outcome of the criminal charges against [FMP] were in his favour what would that mean for [Child A]. Caseworker... explained that DCJ substantiated the claims against [FMP] and this means that Child A would be unable to remain in the home regardless of the outcome of the criminal investigation. …

80. In her affidavit of 21 October 2022 (Ex A8 p 593-638), FMQ said:

1. in her 11 July 2022 telephone conversation with Child A’s caseworker, the caseworker spoke to her in an accusatory and confrontational tone. She said that she had raised financial matters with her that were not her responsibility. She said the caseworker also insisted that FMP be present at the proposed home visit on the following day, and she made ‘the weird request that she [the caseworker] should’ pick up Child A from day-care. The culmination of this made her sick to the stomach with dread because she knew that the respondent had already made a decision to remove Child A from her care and that it would happen that week;

2. she said that she had ‘freely’ invited the caseworkers into their home when they arrived at around 7 pm that night. She said she could have refused them entry or asked them to wait at the door while she went out the back and usher FMP out the back door. She said she did neither, because she and FMP did not think they were doing anything wrong as they ‘genuinely’ believed that the oral safety plan meant that FMP could be at the family home for one hour for dinner each night;

3. she denied that she had told the caseworkers that FMP could be at the family home for one hour any time of an evening - she said that would have been ‘preposterous and betray the constant vigilance we have had in relation to compliance with the plan, compliance that has had an enormously detrimental impact on our family but complied because it was the right thing to do …’.

81. During cross-examination, FMQ said that, as the caseworkers knocked on the door, FMP was about to head out back to her mother’s home. In response to a question asked of her by Senior Member Houlahan, FMQ explained that dinner was late on this day because her daughter had a commitment after school that day. FMQ also explained how she juggled the preparation of meals in a way that their time as a family was maximised at mealtimes. This meant she did all the preparation beforehand and only contacted FMP to come to the home when dinner was ready to serve – this she said maximised their time together.

82. In his oral evidence FMP said that he was walking towards the door when the caseworkers knocked on the door on the evening of 11 July 2022. He said that he had his clothes and keys in his hand as he was leaving, and he did not believe he had breached the agreed safety plan.

Consideration

83. There is no evidence to indicate that the applicants failed to adhere to the initial safety plan. FMQ had become the primary carer for Child A under that plan. She did not work and was the primary carer of her own children and Child A.

84. Nor is there any evidence to indicate that the applicants failed to adhere to the February 2022 revised safety plan, other than the specific 4.45 – 5.45pm hour when dinner could or would occur as contended by the respondent.

85. On the material before us, we accept the evidence of the applicants that no specified hour had been agreed to as to when dinner could or would occur. There may of course have been some discussions between the caseworker and the applicants about dinner times, but we do not find that a specified hour in which the applicants could or would have dinner was agreed to. Family dinners are seldom so regimented that they occur exactly at the same time every day. This would be especially so in the circumstances in which the applicants had been placed with FMP not residing in his home. For the same reason, nor does the specified 4.45pm to 5.45pm dinner time appear to be very realistic, especially when FMQ was entirely responsible for the children in her care and the preparation of meals. On the other hand, an hour limit for meals does appear to be practical and realistic given the situation in which the applicants were placed and had agreed to.

86. We also note the inconsistencies in the respondent’s records as to when dinner could or would occur. For example, in the abovementioned note of the caseworkers that attended the home of the applicants on the night in question said that the specified hour was from 5 pm to 6 pm.

87. There is no evidence to indicate that on the night in question, FMP had been in the home for more than the one-hour limit. His evidence is that he was on his way out as the caseworkers knocked on the door. Additionally, on the evidence before the Tribunal, the applicants appear to have done their utmost to comply with the November 2021 and the February 2022 safety plan so that Child A could remain in their care. As noted above, where there were proposed changes to either safety plan, FMQ would first seek approval from Child A’s caseworker: also see Ex R7 at p 4.

88. What triggered the respondent’s caseworkers’ unannounced visit that night has not been explained. However, the records of the respondent’s case workers before the Tribunal suggest that the caseworkers had already determined to remove Child A from the care of the applicants on the following day. However, when, during the telephone conversation that morning, FMQ told the caseworker that FMP would not be available the following day, and subsequently advised that FMP would not be available until later that week, a decision appears to have been made some time before 7pm that night that Child A should be removed that night. In that regard we also note that an alternate aboriginal authorised carer appears to have already been pre-arranged.

89. Furthermore, for the reasons set out below, we are not satisfied on the material before us that Child A was at any greater risk during a 6pm to 7pm dinner hour to what she would have been if dinner had occurred at 4.45pm to 5.45pm, 5pm to 6pm, or 5.30pm to 6.30pm.

90. Finally, we are surprised that the respondent pressed this aspect of its decision given the 14 October 2022 review conducted by the Office of the Senior Practitioner of the respondent Department: Ex R 7. That review highlighted where the respondent caseworkers had failed to meet the respondent’s responsibilities to follow established procedures and thereby ensure that the respondent’s expectations of the applicants were clear and the consequence of failing to meet those expectations were explained. In summary, the Office of the Senior Practitioner, identified the following failures in its review:

1. not documenting each safety plan and providing the applicants with a copy;

2. not obtaining Director approval for each safety plan and providing the applicants with a copy of each safety plan;

3. not consulting a caseworker specialist in formulating the February 2022 revised safety plan, or

4. not conducting weekly monitoring of each safety plan.

91. That is, on the material before the Tribunal, it was the respondent’s caseworkers who failed to meet the respondent’s responsibilities regarding the implementation of each safety plan. On the other hand, the evidence is that the applicants had at all times complied with what they understood to have been agreed and they did so willingly despite the difficulties they found themselves in.

92. For the reasons set out above, we do not find that the applicants breached the February 2022 safety plan.

Did FMP sexually assault Child 1

93. The respondent contends that, while there is insufficient evidence for police to bring charges against FMP, or for the RCU to confirm that FMP had sexually abused Child 1 this does not detract from the respondent Department having found, in its assessment of risk, that the allegations of sexual abuse actual and suspected were substantiated.

94. In this regard the respondent asserts that Child 1 has given consistent accounts of what occurred on the night in question and in the absence of her having retracted the allegations or any evidence of her having a malicious and ulterior motive for raising the allegations she should be believed.

95. Once again, FMP has strongly denied the allegation of sexual abuse, but has at all times acknowledged that he did, on this one occasion, sleep in the same bed as Child 1.

Applicable legal principles

96. It is accepted that, while the rules of evidence do not apply, in making a positive finding (i.e. a finding of fact) that an allegation is true, the Tribunal should apply as a guide the civil standard of proof, as referred to in Briginshaw v Briginshaw (1938) 60 CLR 336 at p 362: Health Care Complaints Commission v Dizon [2023] NSWCATOD 49 at [16]; BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523 at [29] and [31] and M v M (1988) 166 CLR 69 (M v M) at 76. At the time M v M decided the applicable civil standard of proof was that referred to in Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) at p 362. This standard of proof has been codified in s 140 of the Evidence Act 1995 (NSW).

97. This standard of proof requires the Tribunal to be satisfied to a high degree that the allegation is established, or in other words ‘the degree of satisfaction which must be held by the Tribunal is the civil standard of proof, but the gravity of each charge [allegation] requires the Tribunal to be very satisfied that the conduct complained of is established’.

98. It is also well understood that a party making an assertion of fact has an onus to prove that allegation or assertion. That is, it is not for the person against whom the allegation or assertion is made to prove his or her innocence.

99. On appeal before the High Court in M v M was a decision of the Full Court of the former Family Court concerning the discharge of a custody order that had previously been made in favour of the appellant husband and father of the child of his marriage to the respondent wife. Central to that case was the wife’s allegations that the father had sexually assaulted the daughter. At p 76 the High Court rejected the appellant’s argument that the paramount issue for determination was whether he had in fact sexually assaulted the child as alleged. Instead, by reason of s 60D of the Family Law Act 1975 (Cth) (as it applied at that time): ‘the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child’.

100. At p 77 the High Court went on to say:

… [It] does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.

No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.

In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.

101. In Isles & Nelissen [2022] FedCFamC1A 97 (Isles & Nelissen [2022]), the Full Court of the Federal Court (Alstergren CJ, McClelland DCJ, Aldridge, Austin & Tree JJ) considered the issue of unacceptable risk and whether the civil standard of proof applied (i.e. s 140 of the Evidence Act 1995 (Cth) applied).

102. At [50] the Court noted that in Fitzwater v Fitzwater [2019] FamCAFC 251 Austin J rejected the proposition that a finding of unacceptable risk needs to be made according to the civil standard of proof. At [51] the Court agreed with and adopted the following commentary of Austin J in Fitzwater as being a correct statement of the law in determining whether there is an unacceptable risk:

135 … [the] law draws a distinction between proof of historical facts and the prediction of future possibilities. In determining what did or did not happen in the past, a court decides on the balance of probabilities, but not when hypothesising about future possibilities (Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638 (“Malec”)).

103. In Isles & Nelissen, at [50], the Full Court went on to note:

138 The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before …. Risks of harm must be heeded even if they are improbable eventualities.

139 Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.

140 It cannot be correct that the unacceptable risk of a child’s sufferance of harm through future sexual abuse can only ever be established if it is proven as a fact, on the balance of probabilities, that the child (or another) has already been sexually abused in the past. Depending upon the strength of the evidence placed before the court, the possibility of past sexual abuse may of itself be sufficient to establish the chance of future sexual abuse. That has long been accepted as true …

141 Indeed, that was exactly the factual scenario in M v M. …

142 …, [in] child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malec.

The evidence of Child 1

104. As we have noted above, on 23 September 2021, the respondent’s help line received a risk of significant harm report (ROSH report) in which the reporter is recorded as having said (Ex R1 p 12):

1. Child 1 disclosed, on 21 September 2021, that she had been sexually assaulted by FMP, at his parent’s home when she was 12 years old; and

2. Child 1 had said that FMP ‘fingered her’ and placed her hand on his penis, while she pretended to sleep.

105. At page 4 of its ‘Investigation Report’ (investigation report and RCU investigation report) the RCU noted that the above disclosure was made by the ROSH reporter, on 21 September 2021, during a home visit by the caseworker for Child 1’s youngest sister, the newly born Child 6 (Ex R4 p 417). The investigation report also noted that Child 1 had contacted (text messaged) the reporter at 2.00 am on a date that was unknown.

106. As we have noted above, in her text message of 2 January 2022, Child 1 said that she had decided to speak because she did not trust FMP ‘being in care of my younger sister [Child A] and I don’t feel comfortable with him being near my other sisters [Child 3] and [Child 4]’.

107. Child 1 then went on to explain what happened one night when FMP’s mother and father let FMP sleep in her bed. She said FMP, FMQ and their children had been staying with FMP Senior and his wife during the school holidays, when FMP had stayed on and did not go home with them. She said she was playing a game on her phone and did not think much of it and was fine with FMP sleeping in her bed because he was family and she understood why he did not want to make the bed again that he was originally sleeping on. She said she was asleep when she woke up to FMP touching her. She went on to explain how he touched her, that she was scared, and that FMP told her not to tell anyone, especially GM. She said FMP finally stopped and she went to sleep.

108. After having explained what had occurred on the night in question, Child 1 went on explain how FMP had been behaving towards her before this incident. She described this behaviour towards her as ‘grooming’. While she did not understand this at the time, she said that sometime after FMP had slept in the same bed as her, FMP Senior and his wife told her to stay away from FMP and to sit separately from him.

105. Three weeks later, in the interview with the Detective Senior Constable, Child 1 said it was FMP who said he could not be bothered making the mattress on the night in question and asked if he could sleep in her bed, to which she said ‘fine’ (Ex R3 p 258). She said that FMP Senior and his wife were there when FMP said he would sleep in her bed that night.

106. Child 1 also reiterated that she was playing on her phone and then turned it off and went to sleep (Ex R3 p 259). She said she remembered hearing the shower being on and she knew it was FMP ‘because everyone else in the house would have had a shower.’ Child 1 went on to explain what occurred that night (Ex R3 p 260 -264). She said the whole incident took about 10 minutes and then when he finally stopped, it took her two hours to get to sleep. She said that this was the only night FMP had slept in the same bed as her.

107. During her interview Child 1 drew a plan of the home of FMP and his wife. She also drew a plan of her room. Child 1 went on to explain what occurred that night (Ex R3 p 279 -280). She also explained that her bedroom was very small, and it was located at the end of the small hallway in the home. The entry into her room was from the door at the end of the hallway and at the opposite end of her room was the door into the living area of the granny flat where GM was living. This meant that to enter the granny flat from the house, or to go from the granny flat into the house, one would walk directly past the foot of Child 1’s bed (Ex R3 p 254).

Evidence of FMP

112. As noted above, following the 23 September 2021 ROSH report, in November 2021, FMP and FMQ were the first persons interviewed by Child A’s caseworker. While Child 1 had refused to be interviewed, the evidence is that, by early November 2021, Child 1 had spoken to both her mother and GM about the allegation: e.g. Ex R4 p 419. GM subsequently informed FMP Senior about the allegation, who advised FMP and FMQ: see also Ex R3 p 320. It is the evidence of FMP and FMQ that they were not provided with any specific details other than Child 1 having made an allegation of sexual abuse against FMP.

113. In her notes of her interviewed with FMP, the respondent’s caseworker noted that FMP ‘confirmed that he did sleep in the bed with the young person however he says nothing happened whilst he was in the bed with her’: Ex R1 p 36. The caseworker went on to record that FMP confirmed that he had slept in the same bed as Child 1 on a night in mid-2019. He said he had slept in the bed because there were no other beds available that night and ‘that the usual bed he slept in was in the garage and it was late and raining so the family decided that as [Child 1] had the biggest bed then he could sleep in the bed with her’: Ex R1 p 36 and 39.

114. In his record of interview FMP said that the only time he and Child 1 were alone together, was when he surprised his parents with a visit one evening when he had travelled north for work: Ex R3 p 324. He said it was late when he arrived, and they stayed up late talking. Normally when he went by himself for work and stayed at his parent’s place, his parents would have a mattress that they set up for him in the lounge room. The applicant went on to say:

And because I surprised them - surprised them and it was late, um, and I had to go to work early in the morning. My parents just said, “Oh, don't worry about it this time”. Like “[Child 1] has got the bigger bed, so just jump in with her and that”. We all came to the agreement that - that's what I'll do. Even my – um, my nan was staying there at the time, um, agreed to that., not thinking too much of it be because we're cousins and stuff like that, so we didn't really think that this would be the outcome of me just sleeping. Um, so, yeah, I stayed there, slept in the same bed and then got up and went to work the next morning. Um, yeah, we didn't think too much - too much of it.

115. FMP went on to say:

1. he did not know exactly when this occurred, but he knew it was not school holiday times (Ex R3 p 324);

2. he said that the work was a last-minute thing in that he was not told about it until that week (Ex R3 p 32). He was not planning to stay with his parents as there was accommodation at his work, but as he had not seen his parents for some time, he dropped his clothes off at the accommodation and drove to his parent’s place. It was dark and he arrived at his parent’s place some-time around 7.30 to 9 – Child 1 was ‘roughly 13’ years old at the time;

3. he and his parents were up late talking, which they do pretty much every time on the first night (Ex R3 p 326). His nan (GM) was there. He and his nan were ‘normally pretty close’. He went to bed between 11.30 and 12 o’clock. He had a 6.00 am start the next morning so he had to be up by five o’clock;

4. the conversation about where he was going to sleep happened around the time they were going to bed (Ex R3 p 327) – it was late and the mattress was in the garage as he had surprised his parents – normally if he goes to his parent’s place by himself, the mattress would be set up because he would tell them he was coming. He thought his nan was still up when he went to sleep as he could hear her TV when he jumped into bed;

5. he had said to his parents: ‘Oh, do you want me to go and grab the mattress?’ – to which the parent’s responded: ‘Oh, it’s, you know, it’s too late’ – ‘You need to go to bed’, as they knew what time he needed to get up for work: (Ex R3 p 327). They said:

‘Oh, you know, it's late, just jump in with [Child 1’s] bed’. I was like, ‘Oh yeah, that's- that's alright’. And - um, and, yeah, Nan knew as well. So it's, we just, you know, just, we didn't think much of it. We just, ah, said, ‘Oh yeah, just sleep in there with [Child 1] and then we - next time we'll get the mattress out’. It was just like that last minute, ah, decision.

6. he had never slept in the same bed as Child 1 before and the next time he went to stay with his parents they had the mattress out when he arrived (Ex R3 p 327). He did not think much about the suggestion he sleep in the same bed as Child 1, as ‘Ah, you know, she’s my cousin … I didn’t see it any different to sleeping with one of my male cousins or anything like that. … I didn’t really think too much of it’.

7. he did not have a shower that night – the bed in which Child 1 was sleeping was a queen bed or bigger – he could not remember whether Child 1 was asleep when he went to bed, but thought she was because it was late – he set his alarm and then went to sleep – he then woke up and went to work (Ex R3 p 328);

8. normally he and FMQ would sleep in the room where Child 1 slept and Child 1 would sleep in the room of one of the other children: Ex R3 p 331.His mother would then put up camping mattresses up for his children either in the other two bedrooms where the children slept or the lounge room; and

9. he explained that everyone said he was just a big kid because he always wrestles with his cousins and nephews – he stirs them up but treats them all equally: Ex R3 p329.

116. The applicant went on to explain that sometime after the night in question, FMQ and his parents pointed to behaviour of Child 1 that they said was teenager crush/clingy behaviour towards him. He said he had not noticed it before but could see it once it was explained to him.

117. The specific allegations Child 1 had made against him in her interview with police were put to the applicant during the latter part of his interview: See Ex R3 p 342-343. FMP responded as follows (see p 343):

JW: So did that happen?

FMP: No. That's - like that - If I knew that this was going to be the outcome of me staying in the bed one night, I wouldn't have stayed in the bed at all.

JW: Okay.

FMP: I would've just went out and got the mattress because we didn't - I didn't think that not getting the mattress and me staying in the bed would - this would be the outcome I would’ve just rather grabbed the mattress. Um, I haven't stayed at home for nearly six months now because of – of this. …

118. At p 344- 347 there is the following interchange with the interviewing Detective Senior Constables:

RP: Yeah. So, um, I, um - I just wanted to, um, ask you or suggest something and just see what you think about it. So, you said, and we spoke a little bit about it, um [Child 1’s] teenage crush. Um, you knew about it, you felt like - um, you said that you felt like she had that teenage crush before your surprise visit to Mum. Um, so what do you say about, um, me me alleging that you took advantage of that teenage crush and you jumped into bed with [Child 1], started making sexual advances towards her to see if you could get a positive reaction from [Child 1], what do you say about that?

FMP: I think it's - I think it's crazy.

RP: Why's that?

FMP: She's my cousin. She's my first - like, first cousin. I - I know it - it's – it’s- it's wrong.

RP: Mmm.

JW: You're only half cousins, aren't you?

FMP: No, it's my, ah, dad’s sister’s daughter.

JW: Your dad’s sister?

FMP: Yeah.

JW: But dad from a different – no, [Ms XY] was from a - a different-I was trying to remember the way your dad described it to me, but it sounded like [Ms XY] was his like half-sister.

FMP: Ah, I think she has a different dad, but same mother, I guess it's a half-sister. I don't know, I've never really seen them as a half …

JW: Okay.

FMP: … cousin.

JW: Yeah.

FMP: Yeah. I –I don't know, they’re just-they’re still a cousin.

JW: Okay.

FMP: I - I don't know, it just happened it sounds wrong, it's dirty. I don't know how to explain it. I don't know it - I - you wouldn't think this would happen over one night being in the same bed? Like if I knew if - if I could change the situation, I - like go back in the past and just get that mattress out, I - I would’ve ..

JW: Yeah. Have you taken anything this morning?

FMP: No.

JW: Okay.

FMP: Are my eyes red?

JW: Your eyes are …

FMP: They’re always – they’re always red.

JW: You’re not on medication?

FMP: No. I had coffee.

…

RP: I'm really struggling with, you knew she had a teenage crush, you had a surprised visit, your parents, whoever addressed this teenage crush with you already, (Ex R3 p 327)um …

FMP: It was...

RP: Um ...

FMP: ... it was kind of after that, but thinking back, she's always been like close like a - you know, sitting next to me, but even Child 2 sat next to me and that a...

RP: But you said a teenage crush...

FMP: Yeah. It's like - that's like a teenage crush. Yeah

RP: ... describe a teenage crush, and you jumped into bed with her at midnight after how many hours drive?

FMP: It's...

RP: Probably a bit tired.

FMP ... three hours, something like that. Three, three and a half hours.

RP: Did you smoke any pot …?

FMP: No, I don't touch drugs.

…

RP: You didn't have a couple of beers with dad?

FMP: Nope.

RP: Okay.

FMP: No. He drinks ...; I don’t drink … Yeah, I didn’t have any – any beers. I had a coffee with Mum and Dad. I don’t touch drugs, never have.

...

FMP: But I understand where you - where your view is coming from, like, it sounds stupid now thinking about it but we didn't think of that at the time.

RP: Okay.

FMP: Yeah. If we maybe thought of it that way, we wouldn't be sitting here today.

RP: I just don't understand why you didn't think about it that way.

FMP: Honestly, we just thought - I was only...

RP: You're not - you're not 18, your - your brains developed and you should have...

FMP: I don't understand that

RP: ... had the forethought

FMP: I understand that. I just - we just - I didn't think of that at the time. I literally just, oh, Yep. She's, you know, cousin just...

RP: With a crush.

FMP: Doesn't - doesn't work

RP: Cousin with a crush.

FMP: Just didn't think of it that way...

RP: Teenager.

FMP: ... just didn't think of it at that...

RP: Hormones running rampant; you're a dad, you know what kids are like.

FMP: Yeah. Honestly, just didn't think of it like that at that time. But if I thought of it at that time, I wouldn't be here now.

…

FMP: I know- I know where you're coming from, I - I can't change that now.

RP: Okay.

FMP: Otherwise I would. But I do understand where you're coming from now, just, it sounds stupid, but I-yeah, I can't change that.

JW: So the case that she's physically come onto you?

FMP: No, I - I'd just walk out. If that was the case, I would’ve just walked straight out.

JW: So that didn’t happen?

FMP: No. I would have gone out of - like, if that happened, I would’ve just jumped out of bed and walked out. I don't even have a second think that, that's exactly what I would do.

One month after being interviewed, FMP contacted police to advise that Child A had been removed from their care. He also said that, having read his interview, he remembered that he had forgotten to mention in his interview that, on the night in question, it was raining, which was relevant to why he did not get the mattress from the garage.

119. In his evidence before the Tribunal, FMP reiterated what was said during his interview with police. In cross-examining FMP, counsel for the respondent put the allegations made by Child 1 to FMP, who expressly stated that he did not seek an order under s 128 Evidence Act 1997 (NSW) for this purpose because he did not have anything to hide. FMP denied each and every allegation put to him.

120. As noted above, FMP Senior and his wife were interviewed five days before FMP was interviewed.

121. In his statement to police, FMP Senior said that FMP’s visit that night was a surprise, as they were not expecting him: Ex R3 p 236. He said it must have been ‘like 9 o’clock at night’ when FMP arrived. He said, he, his wife and his mother were awake. He said FMP asked if he could stay the night because he was working nearby. He said they stayed up chatting for a couple of hours and:

11. … [I] said to [FMP], “You may as well just bunk in with [Child 1] tonight” because I didn’t want to have to get bedding out of the garage. Mum said “I don’t like the idea of [FMP] and [Child 1] sleeping in the same bed” I said “Their cousins, they’re both adults, they’re just going back-to-back. Don’t worry mum”. We all went to bed at the same time.

12. The next day was like any other day. [FMP] wasn’t there in the morning, he had already gone to work. [Child 1] seemed fine. …

122. In her statement to police, FMP’s mother said (Ex R3 p 239-240):

12. One night, while the girls were living with us, [FMP] shows up out of the blue, after dinner and [Child 3] was asleep, which was 7.00pm or 7.30pm and says he was up in the area for work and asked if he could stay the night and head off in the morning for work. [FMP] and I were watching TV. [Child 1] and [Child 2] were awake when [FMP] got to our house, but they went to sleep before us. Later, [FMP] said he needed to go to sleep and asked if he should get the bedding out. [FMP Senior] said, “No, just bunk with [Child 1] for the night. We all went to sleep at the same time [GM] was already in the flat when we went to bed to sleep.

13. In the morning, around 7:00am [FMP] was already gone because he had to start early. …

Consideration

123. We note that, to a large extent, the documentary material before the Tribunal is the same material that was before the RCU. In its report the RCU highlighted some consistencies and inconsistencies in the evidence: Ex R4 p 414-454. At p 40 of its investigation report the RCU concluded as follows (Ex R4 p 453):

On balance, noting all of the above factors, given the seriousness of the conduct alleged, in the absence of further supporting or directly corroborating evidence, the investigation did not find sufficient evidence that [FMG] engaged in the alleged conduct as alleged. Further, in the circumstances, the investigation is not satisfied that [FMG’s] conduct of sleeping in the bed with [Child 1] was sexual in nature.

Therefore, the allegation is not sustained.

Finding

Not Sustained

124. At p 41 of its investigation report the RCU said the following under the heading ‘Office of the Children’s Guardian Assessment’ (Ex R4 p 454):

The investigation did not find that sexual misconduct was committed by [FMP] against, with or in the presence of [Child 1]. A notification to the OCG Working with Children’s Check Directorate is not required.

125. Having considered the material before us and having the benefit of observing FMP give oral evidence and being cross-examined in these proceedings, we agree with the above findings of the RCU.

126. We do, however, have considerable concerns about the conclusions contained in the RCU’s ‘Investigation Summary’ (investigation summary). On the second page of that summary, the RCU gave the following summary of the evidence (Ex R4 p 457):

1. given the admission of FMP that he spent a night in Child 1’s bed – he had the opportunity to engage in the conduct alleged;

2. Child 1 provided several generally consistent disclosures of what occurred, which were considered to be compelling, however there were material differences in the level of detail and descriptions of the alleged conduct;

3. there was no direct evidence to corroborate the disclosures made by Child 1 and FMP had denied the allegations.

127. The fact that FMP slept in the same bed as Child 1 does not give rise to a finding that FMP did in fact sexually assault Child A. An adult sleeping in the same bed as a child is not unlawful. Depending on the age of the child and the surrounding circumstances it is generally to be considered unwise or inappropriate.

128. As we have noted in the background, in its investigation summary the RCU described its investigation findings in the following terms: ‘the investigation did not deem that there is sufficient evidence to confirm that [FMP] engaged in the alleged conduct’. It was in this context that the RCU went on to say there was ‘significant evidence of weight in support of the conduct occurring’ and ‘the available evidence is concerning and should be carefully considered.’ It is difficult to see how this is consistent with the RCU’s definitive findings in the investigation report and that a notification to the Office of the Children’s Guardian was not required.

129. As noted in M v M and Isles & Nelissen [2022], in proceedings such as these, the fact that the alleged abuse is not proven by having regard to the civil onus, this does not resolve the wider issue as to whether there is an unacceptable risk of harm to Child A if she were to be returned to the day-to-day care of the applicants. Whether the abovementioned remarks of the RCU in its investigation summary is intended to identify its perception of risk is not clear. If so, for the reasons we have set out below under the heading ‘Does FMP pose an unacceptable risk of harm ..’ we have reached a different conclusion as to risk.

130. We also have considerable difficulty in understanding how the CSC GM could find, ‘based on probability’, that Child 1’s allegation that she had been sexually abused by FMP ‘is more likely to have occurred than not’: Ex R4 p 472. It is on this basis that the CSC GM found that the ‘Sexual Abuse Actual & Suspected is substantiated’. As we have noted, these findings were made following a CSC GM 2022 ‘Alternate Assessment’ of Child 1. The purpose of that assessment was to assess, as at that time, whether Child 1 is subject to any ongoing risks of harm from FMP. The assessment clearly found that she was not at risk. However, its approach to assessing the risk of harm posed by FMP does not bear any resemblance to the approach and principles set out in M v M and Isles & Nelissen [2022]. Instead, the approach seems to be based on a pre-determined view that, notwithstanding the findings of the RCU that the evidence did not support a finding that FMP had committed the acts as alleged, he nevertheless did so ‘based on probability’.

131. In our view there is no such concept of proof for an act of sexual abuse or any other act of violence. However, as pointed out in M v M and Isles & Nelissen [2022], where it cannot be established, to the requisite civil standard of proof, that the alleged sexual abuse or act of violence did in fact occur, the established circumstances giving rise to the alleged sexual abuse or act of violence may nevertheless give rise to a risk of such abuse, violence or other harm occurring in future. In this case, the fact that FMP did sleep in the same bed as Child A is a relevant fact to be considered in determining future risk of harm. However, as we have already said, it is not proof of the fact that he did abuse Child 1 as alleged.

127. The respondent contends that FMP is not a credible witness. In our opinion, having had the benefit of observing FMP give oral and be cross-examined in these proceedings we found him to be a credible witness, who did not blame others for the situation he found himself in. This, in our view, is also demonstrated in his November 2021 interview with the Child A’s caseworker and his interview with police. In these proceedings, we found FMP presented as having an understanding of the matters in issue. He was not evasive and responded fully to the questions asked on him, even where they were against his own interest.

128. There is very limited background information before the Tribunal concerning Child 1, other than her specific disclosures and interview with police. We note that Child 1’s initial disclosure/text message was made not long after Child 6 was born and at a time Ms XY was receiving support in caring for Child 6 from the caseworkers at CSC GM. Ms XY was also receiving support from her mother, GM, who we understand lives close by.

129. While not retracting her allegation, as noted in the RCU in its report, shortly after the initial ROSH report was made, in her response to a text message from her caseworker, Child 1 said she had never been touched. Why she said this has never been explored.

130. We agree, there is no evidence of Child 1 having made her allegations maliciously. Yet, as noted by the RCU, there are inconsistencies in Child 1’s account of the specific acts and omissions of the alleged sexual abuse. For example, in the original ROSH report, Child 1 alleged that FMP had ‘fingered’ her and placed her hand on his penis while she tried to sleep (Ex R1 p 12). Three months later, in her January 2022 disclosure, Child 1 alleged that she woke up to FMP touching her chest area and then kissing her before using his finger to touch her genital area (Ex R1 p 19). However, Child 1 made no mention of the allegation that FMP had placed her hand on his penis.

131. In her interview a few weeks later with police, Child 1 also made no mention of FMP having placed her hand on his penis. However, she said that she did remember waking up and FMP holding her and touching her ‘inappropriately’ (Ex R 3 p 260). She said FMP was touching her chest area – ‘Like squeezing, grabbing’ – she subsequently identified the chest area as being her ‘boobs’ (see at p 261). In her account given to police Child 1 added that after FMP had ‘stopped like with his fingers, he like pulled me on top of him and was just like cuddling me and trying to kiss my mouth and I was just moving my face away’ (see p 263).

132. Other than the caseworker’s notes of conversations had with GM, there is no evidence from GM about the night in question or what she and Child 1 had discussed after the original September ROSH report and Child 1’s January 2022 disclosure.

133. Yet we note that the disclosure made by Child 1 in January 2022 was made five or six weeks after she had spoken to GM about what had occurred. GM had in turn spoken to Child 2 about FMP’s behaviour towards her and it was GM and not Child 2 who described FMP’s conduct of wrestling, kissing and cuddling as being ‘grooming’. On the evidence, these conversations with Child 1 and Child 2 all occurred during November 2021 and well before the subsequent January 2022 disclosure of Child 1, who in that disclosure also referred to similar behaviour of FMP as being ‘grooming’.

134. An adult playfully wrestling, kissing and cuddling of a child is not unlawful. However, we understand that there may be circumstances where behaviour of this kind might be inappropriate or if engaged in with the relevant intent may amount to unlawful ‘grooming’: Crimes Act 1900 (NSW) ss 66EB and 66EC. In this case, there is no evidence to support Child 1’s allegation that FMP engaged in conduct falling within these sections. In this regard, we note the finding of the RCU that it was not satisfied that FMG’s conduct of sleeping in the bed with Child 1 was sexual in nature.

135. Hence, in our opinion, Child 1’s assertion that FMP had engaged in behaviour that was ‘grooming’ should be given no weight.

136. On the material before the Tribunal, we are not persuaded that FMP behaved towards Child 1 in the manner she has alleged. There is no dispute that FMP did wrestle with his cousins. He described it as ‘roughhousing’ when interviewed, in November 2021, by Child A’s caseworker. In the proceedings before the Tribunal, FMP said that he had always been considered as being the ‘fun uncle’ and the ‘big kid’. He said he treated all his cousins equally, but now understood that he needed to moderate his ‘roughhousing’ depending on the circumstances and the age of the child.

137. In our view, the evidence of FMP and FMQ, that it was a ‘teenage crush’ that motivated Child 1 to make the allegations she made should also be given no weight. However, we note that Child 1 acknowledges that FMP’s mother had spoken to her subsequent to the alleged incident about her behaviour towards FMP such as not sitting so close to him when he visited, or they visited.

138. In her January 2022 disclosure, Child 1 indicated that her motivation to make the disclosure was because she did not trust Child A being in the applicants’ care or Child 3 and Child 4 being in the care of FMP Senior and his wife. In our view, it cannot be excluded that underlying this stated motivation may be a strong desire to have her whole family together again, which is understandable.

139. In our opinion, FMP has given a consistent and credible account of the circumstances that gave rise to him being at his parents’ home and sleeping in the same bed as Child 1. FMP’s evidence that he did not drink any alcohol that night and that he does not take any drugs is not disputed. The evidence of Child 1 that she heard someone showering on the night in question, which she believed to have been FMP, is not inconsistent with it raining heavily on the night in question, as FMP’s evidence is that he did not shower that night. However, from the first time he was interviewed by Child A’s caseworker, FMP explained that it was raining heavily that night and it was for this reason that he/his father did not go to the garage to get the mattress he usually slept on.

140. The RCU pointed to some inconsistencies in FMP’s evidence about whose decision it was that FMP sleep in the same bed as Child 1 that night: Ex R4 p 450. In our opinion nothing turns on this, as FMP’s parents both state that FMP Senior had suggested this and in her disclosure of January 2022, Child 1 also said it was FMP’s parents who said that he should sleep in the same bed as her.

141. In this regard we note that the RCU did not find that there was collusion between FMP and his parents in regard to the circumstances that led to the suggestion that FMP sleep in the same bed as Child 1: Ex R4 p 451.

142. We re-iterate, for the Tribunal to find that the sexual abuse allegations made by Child 1 are true, it must be satisfied, to the civil standard of proof, on the material before it that FMP did in fact engage in the acts and omissions as alleged. Furthermore, the onus of proof is on Child 1.

143. The respondent submitted that FMP could not seek any comfort from no charges having been laid. In our view, the advice police gave to FMP, is of no relevance to the task before the Tribunal (or the respondent before it) in determining whether the allegations made by Child 1 are proven on the civil standard of proof, or whether there is a risk of harm if Child A were to be returned to the care of the applicant because of the allegations.

144. Once again, on the material before the Tribunal, we agree with the conclusion reached by the RCU in its investigation. In this regard we point to the inconsistencies in Child 1’s account of the alleged abuse, the reliability of that account given her discussions with GM after the initial disclosure and FMP’s denial of having sexually abused Child 1 as alleged together with his consistent account, as supported by the evidence of his parents, of the circumstances as to why he slept in the same bed as Child 1 on the night in question. That is, on the material before the Tribunal and by applying as a guide the civil standard of proof we do not find that FMP sexually abused Child 1 as alleged.

145. Nor, by applying as a guide the civil standard of proof, do we find that in sleeping in the same bed as Child 1, FMP did so with the intent of carrying out a sexual act with or towards Child 1.

146. While we do not make a finding that Child 1 has fabricated her allegations, on the material before the Tribunal and for the reasons set out above, we have considerable doubt that the FMP engaged in conduct of the kind alleged.

147. As noted in M v M and Isles & Nelissen [2022], our finding that we are not satisfied that FMP engaged in the alleged does not resolve the wider issue of determining whether, on the material before the Tribunal, there is a risk of sexual abuse occurring if Child A were to be returned to the applicants’ care.

Does FMP pose an unacceptable risk of harm to Child A if she were to be returned to the applicants’ day to day care?

153. Part 2 of Chapter 3 of the Care Act contains provisions regarding reports concerning a child or young person who is ‘at risk of significant harm’. The term ‘at risk of significant harm’ is defined in s 23 in this Part, and relevantly provides as follows:

23 Child or young person at risk of significant harm

(1) For the purposes of this Part and Part 3, a child or young person is at risk of significant harm if current concerns exist for the safety, welfare or well-being of the child or young person because of the presence, to a significant extent, of any one or more of the following circumstances—

…

(c) the child or young person has been, or is at risk of being, physically or sexually abused or ill-treated, …

154. In any event, the question for us to determine is whether FMP poses an unacceptable risk to the safety of Child A if she were to be returned to his care and that of FMQ.

155. While we are of the view that, based on his evidence before the Tribunal and the material before us, that it is unlikely that FMP sexually abused Child 1, we have nevertheless approached the issue of risk having regard to the following indicators of risk:

1. there is an allegation of sexual abuse made against FMP – the allegation is serious and has not been retracted;

2. FMP’s acknowledgement that he did sleep in the same bed as Child 1 on the night in question. Notwithstanding the circumstances which led to FMP sleeping in the same bed as Child 1, FMP sleeping with his 12 to 13 year-old cousin was, in our view, inappropriate; and

3. FMP’s acknowledgement that he had a habit of engaging in ‘rough housing’ behaviour with his cousins, behaviour which may be inappropriate given the age of Child 1.

156. In our opinion, based on the above and having regard to the paramount consideration in s 9(1) of the Care Act, and in the words of the respondent to ‘act protectively and err on the side of caution’, we are not satisfied that there is an unacceptable risk of sexual abuse or other abuse of Child A if she were to be returned to the day-to-day care of the applicants for the following reasons:

1. FMP has at all times been open and frank. He did not present as being a person who is evasive, aggressive, overly assertive or controlling;

2. in the November 2021 assessment, FMP was found to have demonstrated protective abilities that may allow him to keep Child A safe. The assessment found that Child A did not appear to present with behaviours indicative of sexual abuse, nor did she present with behaviours indicative of sexual abuse since coming into the care of the applicants. It was noted that Child A did not avoid FMP when he was around her and was comfortable being held and cuddled by him: EX R1 p 36;

3. FMP has at all times agreed to and complied with the safety plans initiated by the respondent;

4. there is no evidence that there was an unacceptable risk to the safety of Child A while she was in the unsupervised care of FMP, or on 11 July 2022 when FMP was leaving the family home after being there for the permitted one hour;

5. there is no history of FMP having slept in the same bed as Child 1 or any other child previously or subsequently – the evidence of Child 1 and FMP is that this is the only night that FMP slept in the same bed as Child 1;

6. in his record of interview with police and in his evidence before the Tribunal, FMP demonstrated a genuine insight into his conduct and, in our view:

1. is unlikely to ever sleep in the same bed as Child A or any other child again;

2. will moderate his ‘rough housing’ behaviour towards his cousins to that which is appropriate to the circumstances;

7. there is no evidence of any previous or subsequent ROSH reports or allegations of sexual abuse, violence or ill treatment made against FMP;

8. there is no evidence of FMP having otherwise come to the attention of police; and

9. FMP is employed and has a supportive wife and family. His life is stable and he speaks fondly of his entire family, including Child 1 and GM and would welcome participating in a mediation if this would restore family relationships.

157. Accordingly, we find that there is no unacceptable risk of sexual abuse or other abuse of Child A if she were to be returned to the day-to-day care of the applicants. On the contrary we find that FMP poses a low risk to the safety of Child A.

Are the applicants otherwise not suitable to be authorised carers?

158. The respondent submitted that the applicants were otherwise not suitable to be authorised as carers because of the following concerns:

1. the applicants’ ability to work co-operatively with the respondent and her caseworkers;

2. the applicants’ ability to promote a positive sibling relationship between Child A and her siblings;

3. the applicants’ ability to promote and foster Child A’s connection to culture and family; and

4. FMP’s mental health.

159. The respondent contends that as the applicants’ authorisation only relates to being authorised as a kinship carer of Child A, its decision to remove Child A from the applicants’ care means that their authorisation cannot in any event be restored.

160. While the applicants have at all times said that they do not seek to be authorised to care for a foster child other than Child A, in our view this does not prevent them from pressing their statutory right to seek review of the decision to cancel their authorisation even though the condition on which they were authorised was limited to the day-to-day care of Child A: see Care Regulation 2022 cl 30 and Care Regulation 2012 cl 34.

161. The respondent’s concern that the applicants lack the ability to work co-operatively with her caseworkers is based on the very adversarial and accusatory nature in which FMP’s uncle corresponded with the CSC A caseworkers and managers. We agree that the correspondence and conduct of FMP’s uncle toward the CSC A caseworkers and managers was unnecessarily adversary and accusatory. While FMP’s uncle may have been well intentioned, in our view, in some respects he demonstrated a serious lack of objectivity which did not assist the applicants in prosecuting their case, or in addressing the concerns of the respondent.

162. It was the respondent’s contention that the conduct and correspondence of FMP’s uncle was no more than what the applicants believed and wanted to say. In our view, while this was put to FMP during his cross-examination, we are not persuaded that this is so. Instead, having had the benefit of observing both FMP and FMQ give their evidence, we were left with the impression that they felt at a loss how to navigate the circumstances they found themselves in and relied on FMP’s uncle to do this for them as he had some knowledge of and experience in out-of-home care and authorised carers. We do not question this knowledge or experience, but became concerned about his ability to provide advice to the applicants that was sufficiently objective.

163. Leaving this aside, the conduct of the applicants prior to these proceeding has at all times been co-operative and we do not see why this should not continue. Co-operation is of course not a one-way process.

164. In their evidence, FMQ and FMP did not hesitate when asked whether they saw any difficulties in promoting a positive sibling relationship between Child A and her siblings. FMP and FMQ said that they had not been the ones to cease speaking to Child 1 or that they had any difficulty in doing so. Family is clearly of great importance to both FMQ and FMP. Hence, we do not accept that the applicants lack an ability to promote a positive sibling relationship between Child A and her siblings. In this regard any difficulties which may arise are those involved in arranging sibling contact as Ms XY’s children do not live in the same town or region and their placements are not all managed by the same CSC or designated agency.

165. FMP presented as being very proud of his aboriginal heritage and the importance of his family ties to that heritage. In his oral evidence in these proceedings, FMP also said a number of times that when it comes to family and children one has to put one’s personal views aside.

166. Hence, we do not find that FMQ or FMP lack ability to promote a positive sibling relationship between Child A and her siblings, or to promote and foster Child A’s connection to culture and family. However, we appreciate that given the events of the last 18 months some considerable support may be needed to re-establish relationships between FMP and FMQ with FMP’s extended paternal family.

167. In his evidence before the Tribunal, FMP gave evidence about the impact of the February 2022 safety plan on his mental health. He said he had been unable to obtain an appointment with a psychologist but had made an appointment to do so. There is otherwise no evidence of FMP having any issues with his mental health. Accordingly, any concerns about FMP’s mental health are isolated to the events he found himself in during 2022 and not long lasting as he is appropriately seeking help.

168. Accordingly, for the reasons stated above, we do not find that the applicants are no longer suitable to be authorised carers.

The correct and preferable decision re decision to cancel the applicants’ authorisation

169. In conclusion, for the reasons set out above, we do not find that the applicants are no longer suitable to be authorised as carers. Hence, on this basis we find that the decision of the respondent to cancel their authorisation is not the correct and preferable decision and should be set aside.

170. For abundant caution, we also find that the applicant’s kinship carer authorisation should be immediately restored.

Removal of Child A from the applicant’s care

171. We have dealt with this issue in two stages. The first stage being the decision to remove Child A from the applicant’s care on 11 July 2022. As it is now almost 10 months since Child A was removed from the applicants’ care we have also considered, whether, at this time, it is in the best interest for Child A to be returned to the applicants’ care given our decision that their authorisation should be re-instated.

11 July 2022 removal of Child A

172. As noted above, we have considerable concerns about the decision of the CSC A caseworkers to remove Child A from FMQ’s care on 11 July 2022.

173. We note Chapter 4 of the Care Act contains provisions relating to children and young persons in need of care and protection. Section 36 in this Chapter sets out the principles the respondent is to take into account in deciding the appropriate response to a report that a child or young person is in need of care and protection. That section provides as follows:

36 Principles of intervention

(1) In deciding the appropriate response to a report concerning a child or young person, the Secretary must have regard to the following principles—

(a) The immediate safety, welfare and well-being of the child or young person, and of other children or young persons in the usual residential setting of the child or young person, must be given paramount consideration.

(b) Subject to paragraph (a), any action must be appropriate to the age of the child or young person, any disability the child, young person or his or her family members have, and the circumstances, language, religion and cultural background of the family.

(c) Removal of the child or young person from his or her usual caregiver may occur only where it is necessary to protect the child or young person from the risk of serious harm.

(2) The principles in this section are to be applied in priority to the principles in section 9 in deciding the appropriate response to a report concerning a child or young person.

174. There is no record of these principles having been taken into account when the CSC A caseworkers removed Child A from the care of the applicants.

175. We understand that the caseworkers did not expect to see FMP when they attended the home of the applicants. However, at no time did the caseworkers identify or assess whether the presence of FMP as he was leaving his home, posed a risk of serious harm that warranted the immediate removal of Child A from the only home she had ever known and the persons to whom she was primarily attached. Instead, it appears to have been no more than knee jerk reaction, hinged on a record, not shared with the applicants that the dinner hour did not extend beyond 5.45 pm. Alternatively, as we have already noted above, the removal was arguably planned in any event.

176. Hence, for the reasons set out above, and having regard to the paramount consideration in s 9(1) of the Care Act, in our view, the removal of Child A from FMQ’s care during the evening of 11 July 2022, was not justified on the basis that her immediate safety in the care of FMQ was at risk. Accordingly, we find that the decision to remove Child A from the care of FMQ on 11 July 2022 was not the correct and preferable decision.

177. At the same time, we agree with the findings of the Office of the Senior Practitioner that it was in any event unreasonable to expect the applicants to abide by the revised safety plan from February to July 2022 without any alternate assessment having been undertaken or ongoing monitoring of that plan. As we have noted, questions can legitimately be asked why that plan was implemented when the alternate assessment some two months earlier had found that, notwithstanding the ROSH report, Child A was not at risk if she remained in the care of the applicants, so long as FMP had no care responsibilities for Child A or unsupervised time with Child A.

Is it in the best interest of Child A to be returned to the applicant’s care?

178. It was not disputed that, in her placement with the applicants, Child A had bonded with FMQ and FMP - she called them ‘mum’ and ‘dad’ and was a loved and integral member of the applicants’ immediate and extended family. Nor was it disputed that Child A had developed into a happy and content child who was meeting all her milestones.

179. Since her removal from the applicants’ care there have been a number of contact visits between Child A and the applicants and following a recent assessment, it was recommended that contact visits continue to occur, which the respondent accepts.

180. However, the question remains as to whether it is in the best interest for Child A to be returned to the applicants’ care.

181. It is almost nine months since Child A was removed from the applicants’ care. However, it cannot be said that since that time Child A has been in a stable placement or entirely safe. Instead, Child A has been in several placements. After each placement, the respondent has asserted that Child A is doing well. In our opinion, for the reasons set out below, this is not reflected in the material before the Tribunal: also see the material produced under summons by Child A’s child-care centre.

182. In her affidavit of 27 September 2021, Ms TR said that on her removal Child A was placed with an authorised Aboriginal carer of the respondent: Ex R1 p 4 at [17]. She said that Child A had settled into her new placement very quickly and on a visit by Child A’s carer on 8 August 2022, Child A had displayed a strong attachment to the female carer: Ex R1 at [18]. In the absence of any expert evidence or direct evidence about this placement we have considerable doubt about this assertion. It is one that is so often made without any substantiation.

183. In the same affidavit, Ms TR said that the new carer of Child A also reported that Child A had shown a preference to sitting in certain positions, clumsiness and distress around bath time. However, it was not until end of August that Child A was taken to hospital, where it was ultimately discovered that Child A had broken her leg: Ex R1 p 4-6 at [19] to [23]. On becoming aware of this incident, the applicants understandably became very concerned about the safety and welfare of Child A.

184. In October 2022, the paternal cousin of Child A’s father and her husband were assessed as long term carers for Child A: Ex R4 p 350 at [8]. Child A was placed into the care of these carers on 11 October 2022 and in her affidavit of 6 December 2022, Ms TR once again asserts that Child A was settling in well: Ex R4 p 350 at [10].

185. In her affidavit of 20 February 2023, Ms TR said that in the last week of January 2023, Child A’s authorised carers reported that Child A had been displaying behaviours of a sexual nature at their home and in public: Ex R6 at [7]. At the hearing on 27 February 2023, the respondent confirmed that it was not contended that these behaviours were in any way related to the manner in which she was cared for by the applicants. At the same time there was no evidence of Child A having been taken to a doctor, in order to exclude a urinary tract infection or other medical issue as being an explanation for the displayed behaviour.

186. At [8] of her affidavit, Ms RT explained that on 1 February 2023, Child A’s carers contacted the respondent to say that they were no longer able to care for Child A and requested that she be removed from their care later that day. Ms RT went on to explain that Child A was removed as requested and returned to the care of the previous carers. Not long after Child A was returned to the care of her previous carers, the respondent received a report concerning Child A and how she was being treated by her carers: Ex R6 at [10] to [12].

187. At [13], of her 1 February 2023 affidavit, Ms RT explained that Child A had been removed from her previous carer ,on 7 February 2023, and placed with a ‘family member and the family member’s partner’ who had previously been authorised by the respondent. Ms RT explained that this family member and the partner were willing to be the long term carers of Child A.

188. Ms RT went on to explain that Ms XY had advised the respondent that she wanted to be assessed for the restoration of Child A and that a restoration assessment, by an external assessor, had been commissioned for this purpose before an application is brought in the Children’s Court for orders to that effect.

189. As Child A remains under the parental responsibility of the Minister and the only out-of-home placement where she experienced stability, that being her initial placement with the applicants where she developed her most secure attachments is, it is difficult to see how it is not in her best interest to be returned to the applicants’ care.

190. At the same time, we understand that an appropriate and flexible transition plan needs to be formulated and then closely monitored to ensure that Child A is transitioned into the applicants’ care as quickly as possible with all the necessary support. In our view this should not be formulated or monitored by the caseworkers or a senior caseworker who has with some previous involvement in the care of Child A or her siblings. Instead, it should be formulated and monitored by another senior caseworker or suitably qualified independent specialist/ assessor.

Conclusion and orders

191. For the reasons set out above, we have found that:

1. the applicants did not breach the oral February 2022 safety plan;

2. it is not established that FMP sexually abused Child 1 as alleged. On the contrary we have considerable doubt that, other than sleeping in the same bed as Child 1, FMP acted inappropriately towards Child 1 on the night in question;

3. having regard to the safety, welfare and well-being of Child A being paramount, we are not satisfied that FMP poses an unacceptable risk to the safety of Child A if she were returned to the applicants’ care. On the contrary, we find that the risk of sexual abuse occurring if Child A were to be returned to the day-to-day care of the applicants is very low;

4. we do not otherwise find that the applicants are no longer suitable persons to be authorised carers; and

5. The decision of the respondent, made on 16 August 2022, to cancel the authorisation of the applicants is set aside and for abundant caution, a decision is made that the applicants’ authorisation is immediately restored;

6. the decision of the respondent, made on 16 August 2022, to remove Child A from the day-to-day care of the applicants is set aside and in substitution thereof a decision is made that Child A is immediately returned to the day-to-day care of the applicants subject to the respondent immediately appointing:

1. a senior specialist caseworker with no previous involvement in the care of Child A or her siblings, or

2. a suitably qualified independent specialist/ assessor,

to provide all necessary support to Child A and the applicants in the return of Child A to the applicants’ care.

192. Accordingly, we make the following orders:

1. The decision of the respondent, made on 16 August 2022, to cancel the authorisation of the applicants is set aside and for abundant caution, a decision is made that the applicants’ authorisation is immediately restored.

2. The decision of the respondent, made on 16 August 2022, to remove Child A from the day-to-day care of the applicants is set aside and in substitution thereof a decision is made.

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

Amendments

19 June 2023 - Order 2 varied as per set aside application dated 13 June 2023.

16 July 2024 - order 2 completed.

Decision last updated: 16 July 2024