FTK v Secretary, Department of Communities and Justice - [2024] NSWCATAD 218

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: FTK v Secretary, Department of Communities and Justice [2024] NSWCATAD 218
Hearing dates: 6 – 7 May 2024
Submissions closed 24 June 2024
Date of orders: 05 August 2024
Decision date: 05 August 2024
Jurisdiction: Administrative and Equal Opportunity Division
Before: J Redfern PSM, Senior Member
J Herberte, General Member
Decision:
(1) The decision of the respondent made on 27 October 2022 to remove the three children from the care of the applicants is affirmed.
(2) The decision of the respondent made on 23 April 2023 to cancel the authorisation of the applicants as authorised carers is affirmed.

Catchwords:
ADMINISTRATIVE LAW — child protection — out of home care — application for review of decision to remove children from care of authorised carer — application for review of cancellation of authorisation as authorised carers

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Children and Young Persons (Care and Protection) Act 1988 (NSW)
Children and Young Persons (Care and Protection) Regulation 2022
Civil and Administrative Tribunal Act 2013 (NSW)
Community Services (Complaints, Reviews and Monitoring) Act 1993
Evidence Act 1995 (NSW)

Cases Cited:
Fitzwater v Fitzwater [2019] 60 FamCAFC 251
Isles & Nelissen [2022] FedCFamC1A 97
M v M [1988] HCA 68; (1988) 166 CLR 69

Category: Principal judgment
Parties: FTK (First Applicant)
FTL (Second Applicant)
Secretary, Department of Communities and Justice (Respondent)
Representation:
FTK (self-represented)
FTL (self-represented)
Solicitors:
Care Legal (Respondent)
Legal Aid (Separate Representative)

File Number(s): 2023/00088322
2023/00349530
Publication restriction:
(1) Section 65 of the Civil and Administrative Tribunal Act 2013 (NSW) applies to these proceedings.
(2) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the disclosure, publication or broadcast of the names of the applicant and the children is prohibited.

REASONS FOR DECISION

INTRODUCTION

The applicants, FTK and FTL, seek review of two decisions of a delegate of the Secretary of the Department of Communities and Justice (the respondent), the first made on 27 October 2022 to remove three children from their care, and the second made on 26 April 2023 to cancel their authorisation as authorised carers. Both decisions were made under the Children and Young Persons (Care and Protection) Act 1988 (NSW) (the Care Act). The children are under the parental responsibility of the Minister, and the Secretary of the Department of Communities and Justice (DCJ) is, among other things, responsible for the administration of the Care Act.
The applicants were notified in writing about the change of placement by letter dated 4 November 2022. They sought an internal review under s 53 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act), which was refused. The applicants were notified of the refusal by letter dated 7 February 2023, received on 9 February 2023, and lodged the application for review on 12 March 2023, outside the period allowed. The applicants were given an extension of time by the Tribunal, which was not opposed by the respondent. The second application for review was lodged on 3 November 2023, also lodged outside the period allowed. The applicants were given an extension of time to lodge the second application for review and directions were made about evidence and submissions in respect of both applications for review. It was directed that the applications be heard together. The applications for review are made pursuant to s 245 of the Care Act.
The applicants are self-represented, and a separate representative was appointed for the three children pursuant to s 45(4A) of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act).
On 9 November 2023 an order was made under section 64(1)(a) of the CAT Act prohibiting the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings. This is taken to include a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. As such, the applicants in these proceedings are referred to as FTK and FTL. The children who are the subject of the removal and care orders are not referred to by name and are referred to as ‘the children’ or in similar non identifying terms. The applicants’ foster son is referred to as S and the children's extended family are also referred to by pseudonyms. The place where the applicants reside, and where the children lived up to the time of their removal has also been anonymised.
There was oral evidence from three witnesses on behalf of the respondent. These witnesses are DCJ officers. The applicants each gave evidence and, because of the nature of certain allegations made and the general denial of FTL about allegations of sexual abuse, an issue was raised about FTL being required to give evidence about these allegations in answering questions about this in cross examination. FTL said he wanted to give evidence but was concerned about giving evidence on these matters if that evidence may tend to incriminate him, which was the ground on which he had refused to attend interviews with DCJ when these issues were first raised. Given the significance of the allegations, a certificate was given to FTL under s 128 of the Evidence Act 1995 (NSW) (the Evidence Act) to preserve any privilege.
At the end of the hearing, directions were made about the filing and serving of any further submissions, and submissions were provided by the separate representative, the applicants and the respondent on 6 June, 17 and 24 June 2024 respectively.
The applicants are authorised carers. The three children who were removed from their care and control are siblings. They are Aboriginal children, from [X] Country on their father’s side, and [Y] Country on their mother’s. They were removed from their parents at an early age and have lived with the applicants since the time of their removal. The children are 13, 11 and 10 years old. FTL identifies as an Aboriginal from [X] Country and the children’s great grandfather is his cousin. The applicants live in [Country town in far western New South Wales, anonymised in these reasons as ‘Country town’], where they have lived for many years. They are both retired.
By the time of the hearing, the children had been separated from the applicants for nearly 18 months, although they have had regular contact since February 2024. The children have been living in Dubbo and a permanent placement is being considered for them in [Country town where they have been residing with the applicants].
The issues in both applications are inter-related. Many of the concerns raised about why the children were removed forms the basis for the concerns raised by the respondent in cancelling the applicants’ authorisation. The applicants’ authorisation was cancelled under reg 35 of the Children and Young Persons (Care and Protection) Regulation 2022 (NSW) (the Care Regulation) on the grounds that they are no longer suitable to be authorised carers. If the applicants are not authorised carers, the children cannot be returned to their care. While the applicants raise objections about the process and perceived lack of proper consultation and assistance resulting in what they consider to be the wrongful removal of the children, the critical issues for the Tribunal in merits review is to make the correct and preferable decision on the available material at the time of the decision.
There is no dispute that the applicants have undertaken challenging long-term caring arrangements for vulnerable children over a period of more than 20 years. Nor is there dispute that their work in this area demonstrates the applicants’ concern and commitment to the protection and care of children and young persons and to making a difference. Despite this, we must consider the arrangements for the children and the authorisations having regard to the current circumstances.
Accordingly, the issues for determination are, first, whether the applicants are no longer suitable and whether cancellation of their authorisation is the correct and preferable decision and, secondly, whether the decision for removal is the correct and preferable decision. We have considered these matters in reverse order for the reasons later outlined.
For the reasons that follow, we have decided to affirm both decisions under review.

BACKGROUND

The applicants were first approved as authorised carers in 2000. At the time of their authorisation, both were in their 50s. A young child was placed in their care in September 2001. He remains living with the applicants in their home and is now a young man who is nearly 23 years old. He is referred to in these reasons as either the applicants’ foster son or ‘S’.
The three children who are the subject of the removal decision were removed from their parents due to reports of neglect, abuse and family violence. In September 2013, DCJ (or its predecessor) placed the two oldest children with the applicants. The children were returned to their parents for a short period, but this did not work out and the oldest two children, a boy and a girl, were placed with the applicants on 28 November 2013. The youngest child, a boy, was placed with the applicants on 4 December 2013. When the children were placed with the applicants, the oldest child was three years old, the middle child was just over 12 months old, and the youngest child was a baby.
According to certain documents provided by the respondent pursuant to s 58 of the ADR Act, it is noted that the placement of the children was intended as ‘short term’. This is a contentious issue. The applicants assert that they intended the arrangement to continue as a permanent placement for as long as they were able. The respondent contends that this was not the case. According to the respondent, the applicants were finding it difficult to look after young children with challenging behaviours and they knew an alternative permanent placement was being considered by DCJ. What is uncontroversial is that the children were placed in the care of the applicants for nearly 10 years before their removal. This cannot properly be characterised as a ‘temporary’ placement.
The children are under the parental responsibility of the Minister until they attain the age of 18 years by virtue of final Children's Court orders made on 21 March 2014. There were individual case plans prepared for the children at that time, which noted that the children were well settled in their placement with the applicants, which was considered safe and stable. The children's father is from [X] Country. [Country town] is in [X] Country, and the children have several relatives who live in the [Country town] area, including several aunts and cousins.
The applicants underwent their first carer review on 30 September 2015. The carer review recommended that an alternative placement be sought for the children as soon as possible. On 1 November 2016, the applicants underwent an annual carer review. This review reported that long-term placement was required. In September 2017, care plans for the children were completed, which noted that the children were well settled in their placement, which was considered to be safe and stable. The care plans referred to the possibility of the children moving to long term placements either within the community or ideally to a long-term kinship placement.
Thereafter, there were regular reviews undertaken by DCJ. A summary of the recommendations made in relation to those reviews follows, although it should be noted that the applicants do not agree that the recommendations and observations made in those written reviews, fairly or accurately represent the circumstances at the time.
An annual carer review was completed on 9 November 2017, in which it is reported that the applicants were not suitable long-term carers given the children's young age, the applicants’ ages and the size of their home. The annual care review on 18 August 2018 noted that the applicants would support the children being restored to their parents’ care if suitable but otherwise wanted to continue as carers. The carer review recommended that the applicants continue to be authorised as short-term carers for the children. In an authorised assessment completed later that month, it is noted that the applicants reported they would like DCJ to locate a suitable long-term placement for the children. The assessment recommended that the applicants continue to be authorised as foster carers until suitable family members were located. In November 2019 and early 2020 the applicants notified DCJ that they needed more support. It should be noted that despite the observations made in these various carer reviews, the children remained in the care of the applicants.
It was not until February 2020 that DCJ began seeking another placement for the children within the [Country town] or surrounding area.
Two placement options were identified for the children in July and August 2020. The first was a non-Aboriginal placement option with carers in Deniliquin and the second was with a paternal aunt in [Country town]. It was decided that the children should be placed with the paternal aunt with the applicants supporting in a grandparenting role. The second option did not proceed, and DCJ continued to explore placement options with non-Aboriginal carers. In September 2020 a family group conference was held to discuss permanent placement for the children and the children's extended family said they wanted the children to remain with the applicants permanently unless restoration to the parents was considered possible. Despite this, on 12 October 2020 an Aboriginal Permanency Review Panel endorsed the placement change to Deniliquin.
On 20 October 2020, the applicants were notified in writing about the proposed removal and change of placement. A placement change review report was completed on 27 November 2020 which recommended that, in the event no short-term or long-term care options were identified in [Country town], the children be moved to an identified care option in Deniliquin. An internal review was undertaken, and the internal reviewer affirmed the decision that the children's placement should be changed. This was notified to the applicants on 9 December 2020. They lodged an application for review with the Tribunal in January 2021.
On 4 March 2021, John Tredinnick, psychologist, was briefed to complete an independent external carer capacity review. This was completed on 12 May 2021. He recommended that the children remain in the authorised care of the applicants. It was also recommended that the respondent withdraw its decision to place the children in Deniliquin to avoid the need for the matter to go before the Tribunal and to stop the stress and likely trauma the children and the applicants were experiencing. Having regard to this report, the decision made by the respondent to remove the responsibility for the daily care and control of the children for the applicants was, by consent, set aside by the Tribunal on 19 May 2021.
On 6 September 2022, a five-year carer review was conducted by an external assessor. Certain issues were raised by the reviewer, but it was recommended that the applicants remain the authorised carers of the children in accordance with the orders of the Tribunal.
On 14 October 2022, DCJ received a report about mistreatment alleged to have been disclosed by the children. The children were placed in immediate respite. There was a meeting between the applicants and DCJ case workers on 27 October 2022 and, on 2 November 2022, DCJ decided to move the children to another authorised placement. The children were placed in a short-term emergency placement in Dubbo supervised by Westhaven, disability service providers. The applicants were notified of this by letter dated 4 November 2022. The applicants sought an internal review of this decision. They were notified by letter dated 7 February 2023 that an internal reviewer had affirmed the decision to change the placement of the children. As already noted, the applicants then filed an application for administrative review.
By letter dated 26 April 2023, DCJ notified the applicants that their carer authorisation had been cancelled. DCJ relied on information in the five-year carer review and on allegations made by the children that had resulted in their removal.
Following the removal of the children, there were additional disclosures made by the children which were investigated, the details of which are set out below. The applicants dispute many of the matters said to have been disclosed.
A decision was made by DCJ on 9 June 2023 to temporarily cease the applicants’ family time with the children. There were further assessments, investigations and behavioural support plans formulated for the children from June 2023. Serious allegations of sexual abuse were disclosed by one of the children against FTL and on 20 July 2023, he was requested to attend a meeting to discuss various allegations made, including those alleging sexual abuse. He declined to do so and did not provide any written response, which he was invited to do by 18 August 2023. By letter dated 13 September 2023, FTL was provided with a letter from DCJ regarding the outcome of its assessment of the allegations. DCJ found that, on balance, the allegations made about sexual abuse in relation to FTL were substantiated. This allegation is disputed by the applicants, but it is central to the respondent’s claims about the risk of harm.
The applicants made an application for administrative review of the cancellation decision on 2 November 2023.
Family visits were reinstated between the children and the applicants on 8 February 2024. Since this time there has been numerous visits between the applicants and the children, both in person and by telephone.

RELEVANT LAW

The decisions subject to the applications before the Tribunal were made by the respondent under the Care Act. Section 9(1) provides that the Care Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount. Other principles to be applied in the administration of the Care Act include the views of a child or young person, which must be given due weight in accordance with their developmental capacity and the circumstances; the culture, disability, language, religion and sexuality of a child or young person; the least intrusive intervention to protect a child or young person from harm and the entitlement of a child or young person to a safe, nurturing, stable and secure environment (s 9(2)).
Section 8 sets out the objectives of the Care Act as follows:

8 What are the objects of this Act?
The objects of this Act are to provide—
(a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and
(a1) recognition that the primary means of providing for the safety, welfare and well-being of children and young persons is by providing them with long-term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles, and
(b) that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and

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

Section 9A provides that the Secretary must act in accordance with the principle of ‘active efforts’ in exercising functions under the Act which means taking action to safeguard or promote the safety, welfare and well-being of a child or young person. The Secretary must also ensure active efforts are timely, practical, thorough, purposeful, culturally appropriate, aimed at addressing the grounds on which the child or young person is considered to be in need of care and protection and is conducted, to the greatest extent possible, in partnership with a child or young person and the family, kin and community of the child or young person.
Section 10 provides that the Secretary must ensure that a child or young person is able to participate in decisions made under the Act that have a significant impact on his or her life by, amongst other things, providing any assistance that is necessary for the child or young person to freely express their views.
Section 10A of the Care Act defines a ‘permanent placement’ as a long-term placement following the removal of a child or young person from the care of their parents that provides a safe, nurturing, stable and secure environment for the child or young person. A child or young person who needs a permanent placement is to be placed in accordance with the permanent placement principles set out in sub paragraph (3). Relevantly, those principles provide that if it is not practicable or in the best interests of the child or young person to be restored to the care of his or her parents, the second preference for permanent placement of the child or young person is with a relative, kin or other suitable person in accordance with the guardianship order. If this is not practicable or in the best interests of the child or young person, the next preference is placement with a suitable person or persons jointly in accordance with an order made allocating parental responsibility under a guardianship order. The last preference is for the child or young person to be placed under the parental responsibility of the relevant Minister.
Relevant to the circumstances of this case, Part 2 of Chapter 2 of the Care Act, sets out the principles to be applied in respect of Aboriginal and Torres Strait Islander persons.
Section 13(1) provides for a cascading scheme for preferred placements. The most preferable placement is placement with a member of the child's or young person's extended family or kinship group, as recognised by the Aboriginal or Torres Strait Islander community to which the child or young person belongs. If this is not practical or in the best interests of the child or young person, placements with varying levels of connection to the Aboriginal or Torres Strait Islander community are nominated. Finally, if those placements are not practicable or would be detrimental to the safety, welfare and well-being of the child or young person to be so placed, subs (1) nominates placement with a suitable person approved by the Secretary after consultation with members of the child's or young person's extended family or kinship group and such Aboriginal or Torres Strait Islander organisations as are appropriate to the child or young person.
Section 13(6) provides that if a child or young person is placed with carers who are not from Aboriginal or Torres Strait Islanders communities, it is a fundamental objective, subject to their best interests, for the child or young person to be reunited with his or her family or with their Aboriginal or Torres Strait Islander community and for there to be continuing contact between the child or young person and his or her Aboriginal or Torres Strait Islander family, community and culture.
Chapter 8 of the Care Act deals with ‘out of home care’. Out of home care is where the residential care and control of a child or young person is provided by a person other than the parent of the child or young person and is provided at a place other than in their usual home (s 135). Section 136 provides that statutory out of home care, which is the relevant type of care being provided to the children in this case, can only be provided by authorised carers. Section 137 provides that an authorised carer means a person who, in accordance with the regulations, is authorised as an authorised carer by a designated agency. It is also noted that the regulations may provide for the authorisation of persons as authorised carers, the imposition or variation of conditions on the authorisation and the cancellation or suspension of an authorisation (s 137(2)).
Sections 151 and 152 deal with temporary care arrangements. These provisions contemplate limited arrangements, consistent with the ordinary meaning of the word ‘temporary’, with such arrangements being subject to regular review and renewal.
Regulation 35 of the Care Regulation provides for the cancellation or suspension of the authorisation of an authorised carer by a designated agency. The designated agency may, by written notice, cancel or suspend the authorisation if, in the agency's opinion, the authorised carer is no longer a suitable person to be an authorised carer or the authorised carer has failed to comply with certain conditions or written directions by the designated agency or the Children's Guardian or has failed to uphold the charter of rights prepared by the Minister under s 162 of the Care Act. Regulation 37 provides that the authorisation of a person is automatically cancelled if the person no longer has a working with children check clearance under the Child Protection (Working with Children) Act 2012 (NSW) (the Child Protection Act).
The Child Protection Act contains provisions dealing with the protection of children prohibiting certain persons from engaging in child related work and requiring persons engaged in child related work to have a working with children check clearance (WWCCC).
Section 28(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) (the 1993 Act) provides that a person may apply to the Tribunal for administrative review under the ADR Act of any decision that is an administratively reviewable decision, relevantly, under s 245 of the Care Act.
Section 245 of the Care Act provides that each of the decisions enumerated in subs (1) is an ‘administratively reviewable decision’ for the purposes of s 28(1)(a) of the 1993 Act. Those decisions include a decision of the relevant decision maker to cancel a person's authorisation as an authorised carer (s 245(1)(b)) and 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 (s 245(1)(c)).
The ADR Act sets out the process for internal review of administratively reviewable decisions and for the review of decisions by the Tribunal. Section 63 provides that, in determining an application for administrative review, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. The Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. The Tribunal may decide to affirm or vary the administratively reviewable decision. It may also set aside the decision and make a decision in substitution or set aside the decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
Section 64 provides the Tribunal must give effect to any relevant Government policy in force at time the administratively reviewable decision was made, as certified by the Premier or relevant Minister, and may also have regard to any other policy applied by the administrator. However, policy should not be applied to the extent that the policy is contrary to law or if the policy produces an unjust decision in the circumstances of the case.
In other words, in conducting a review the Tribunal ‘stands in the shoes’ of the administrator and its role is to make the correct and preferable decision having regard to all relevant material. The Tribunal should have regard to material that was available and relevant at the time of the decision as well as any further material provided by the parties at the time of the hearing that is relevant to the issue in dispute.
Accordingly, the issue is not whether the decision was the correct and preferable decision at the time of the original decision was made but rather what is the correct and preferable decision at the time of the determination of the review.

OUTLINE OF EVIDENCE

The evidence before the Tribunal comprises documentary evidence, which includes reports, assessments, correspondence and contemporaneous notes. The evidence also comprises written statements and oral evidence from case workers and managers from DCJ and from the applicants. Much of the documentation was provided by DCJ pursuant to s 58 of the ADR Act.
It is clear from the background set out above, much of which is uncontentious, that the applicants provided daily care and control of the children from 2013 and this became increasingly difficult for them by at least 2019/2020 for several reasons. Case workers within DCJ had become concerned about the suitability of the placement arrangements by late 2017. Despite this, the children remained in the care of the applicants. The respondent contends that the applicants were having difficulty coping and changed their mind on several occasions, which caused difficulties in finding alternative placements. In contrast, the applicants contend that DCJ failed to provide much needed support and respite. There is force in both these contentions, and this is outlined later in our reasons. While the detail of these interactions and communications is significant for the parties because it provides context for the events that happened in late 2022, the overriding consideration in this review is for the Tribunal to determine the correct and preferable decisions having regard to the circumstances and material now before us.
Accordingly, the outline of the evidence focuses on the events leading to the removal and starts with the details of the report and recommendations made by John Tredinnick and what followed from these recommendations. This report is the foundation for many of the applicants’ contentions in relation to both reviews.

Documents

John Tredinnick is a psychologist with 22 years of experience in child protection related assessments. In February 2021, in anticipation of the first Tribunal review proceedings, Mr Tredinnick was instructed to undertake a carer capacity assessment as well as an assessment of attachment and risk of psychological harm if the children were removed from their placement with the applicants.
Mr Tredinnick reviewed the documentation provided for the proceedings, which included the s 58 documents and affidavits from the applicants and their foster son. He also conducted interviews of case workers, teachers, the applicants and the children. He observed the children together with the applicants and together with each other after school. In summary, Mr Tredinnick recommended against moving the children to Deniliquin.
Mr Tredinnick referred to the case plan agreements for the children that were formulated and lodged with the Children's Court in February 2014. There were plans lodged for each child and in each plan, it is noted that the placement was “a family based long term placement … to avoid any instability and uncertainty for a child in statutory care”. He notes that, despite this, there was comment in various assessments over the years that the children would be moved to a more suitable long-term placement once found and this was said to be due, in part, to either the children's ages or the carers’ ages.
Mr Tredinnick notes that DCJ commissioned a review of the decision to move the children in November 2020. Recommendations were made to determine if there were any short-term or long-term placement options in [Country town]. He further notes that DCJ staff with case management responsibilities for the children acknowledged that not all the recommendations in various reports had been implemented. He observed that there had been a “lack of consistent support for the carers over the years and, respectfully, there have been historical discrepancies with case work”. Mr Tredinnick noted that the applicants met the five core competencies to be authorised carers and the staff acknowledged that they were suitable to remain as carers. The applicants had provided care for 36 children and were “altruistic” individuals who currently require in-home support from a psychologist given the youngest child's aggressive behaviour and refusal to attend school.
According to Mr Tredinnick, two of the most significant issues in the case had been finding an alternative placement for the children, and respite care, in [Country town]. It was noted that the assessment had identified the applicants’ foster son, who he identified as having an Aboriginal background, as someone who provides some support and the care of the children. He was considered by Mr Tredinnick to be someone who could be assessed as an authorised carer for the children to provide increased support. It is also noted that there was an Aboriginal director of a preschool in [Country town] who was willing to provide respite for the children.
In summary, Mr Tredinnick recommended as follows:

It is my opinion that moving the children from their long-term placement to Deniliquin would have a significant traumatic impact on them. DCJ staff, the carers and [foster son] concur. It is in the children's best interest to remain of (sic) the care of [the applicants], with increasing in home support from [foster son], respite care from [Director of pre-school], increased casework support from DCJ, and face-to-face clinical support in the home regarding behaviour management.
I have made various recommendations, including DCJ withdrawing its decision to move the children to Deniliquin now or at any time in the future. This will obviate the need for the matter to be before NCAT and will stop the stress and likely trauma that the children and carers are currently experiencing over their uncertain future. I have made other recommendations, including assessing [foster son] as carer, future case work and DCJ considering financial support to build an extension on the carers home as additional space will be required as the children get older.

There is evidence that prior to their removal in October 2022, at least two of the children were receiving regular treatment for their psychological and emotional well-being.
In a report dated 2 March 2022 from Consultant Child and Adolescent Psychiatrist, Dr James Wickramasuriya, it is reported that the eldest child was presenting with symptoms consistent with previously diagnosed ADHD, generalised anxiety disorder and separation anxiety disorder, with no obvious social anxiety. This diagnosis was in the context of very likely developmental trauma syndrome with his intellectual ability in the low average range but there was no evidence of a specific learning disorder. The oldest child was reviewed in person in the company of FTK. The recommended ongoing management was to continue to provide psychoeducation about multimodal treatments, which included psychological interventions and medication (Ritalin). It was also noted that DCJ had approved regular therapy with a child psychologist.
In his report dated 8 June 2022, Dr James Wickramasuriya states that the youngest child was presenting with symptoms consistent with separation anxiety disorder, generalised anxiety disorder, ADHD overarched by likely significant developmental adversity and disruptions resulting in attachment difficulties. The youngest child was reviewed in person in the company of FTK. It was noted that his after-school behaviour had worsened from inadequate dosage of his medication and that FTK reported feeling extremely exhausted, particularly given the extended COVID lockdowns. As with the oldest child, it was recommended that there be regular psychological interventions through therapy.
After the Tredinnick report and the finalisation of the previous Tribunal proceedings, there were regular home visits from DCJ case workers from June 2021 to October 2022.
The early home visits refer to the challenging behaviours of the youngest child but otherwise there was nothing remarkable noted. The reports focused on the activities being undertaken by the children, their progress at school and in their sporting activities and their participation in cultural activities and connections with their family in the community. It was noted that their great aunt lived nearby and worked at their school, so they saw her most days. In the January 2022 home visit record, it is noted that the three children had moved into a larger bedroom together, but it is also noted that the middle child would need to have her own room as she got older. It is recorded that the case worker forwarded a carer application to the foster son for him to complete. The April 2022 home visit record notes that that this had almost been completed. It is also noted that one of the case workers was attempting to find respite for the children for the upcoming school holidays and that FTL had expressed frustration about other family members not stepping in to help take care of the children over the weekend. There is discussion in the report about the older child’s wellbeing, noting that he was on medication to manage his behaviour.
The June 2022 home visit record noted that the applicants’ foster son, S, was still in the process of applying to become a kinship carer for the children. It was also noted that the case worker was following up whether the applicants had obtained quotes for extensions to the house. The notes record that little progress had been made on this at that stage by FTL. The August 2022 home visit record again refers to the quotes for the building extensions, which had apparently not progressed. It recorded in this home visit that a statement was made by the youngest child that the older child gets smacked ‘all the time’.
On 26 September 2022, a five-year carer review was completed by Julianne Murtagh-Fraser from Max Solutions. The report was prepared by reference to documentation provided by DCJ and interviews undertaken of the family members living in the home. It is noted in the report that a five-year carer review was commenced in February 2021 but was still pending. Ms Murtagh-Fraser reported that S, who had reportedly expressed a desire to be assessed as a carer, was not home at the time of the interview and while he was advised of the review and the interview process, it is apparent from the report that he was not available to participate in the review.
Ms Murtagh-Fraser undertook an evaluation of the carers. She noted that they were 75 and 76 years old respectively at the time of the review. She observed that, while the children have been in the placement long term and looked to the applicants as their parental figures, the applicants’ capacity to provide a high level of care was not reflected in her review.
According to Ms Murtagh-Fraser, the applicants are able to identify what supports the children needed and were quick to identify the role of DCJ in providing these links and services. However, Ms Murtagh-Fraser opined that the applicants have, to a large extent, “abdicated” their care role and now look to DCJ to meet the care needs of the three children financially, socially and developmentally. She observes that the role the applicants play in accessing extracurricular activities is minimal. They were able to identify what [Country town] could not offer but they were unable to investigate or instigate activities either from a cultural perspective or their childhood experiences. They identified neighbouring towns that had activities rather than working out ways to access those activities.

Ms Murtagh-Fraser concludes that, at a certain level, the children are experiencing “good enough parenting” however they are missing out on vital parts of their childhood development, the excuse being that [Country town] is a remote town with no services. While she reports that this may be a fair evaluation, she also notes that the applicants were not able to demonstrate a capacity to seek out activities and link the children to activities either in [Country town] or in a neighbouring town. She concluded that the applicants failed to meet the out of home standards in terms of sleeping space and privacy and noted that the desired outcome of the DCJ building an extension on their home could be considered as unrealistic given their age and their predicted care capacity over the next five to 10 years. She notes that the intention to leave the home to their foster son and the three children is “well intentioned” but not well planned in terms of recognising the challenges and limitations.
Ms Murtagh-Fraser notes that the foster son is yet to be assessed and the reality of a 21-year-old taking on and being assessed as an authorised carer to three young children while himself a child of trauma is, according to Ms Murtagh-Fraser, unlikely at best. She notes the applicants continue to plan for their foster son to be a carer when they are no longer able to provide care. Having him assessed in a timely manner would indicate whether the applicants’ plan for transition of the children into his care is a realistic possibility. If he is assessed as appropriate, DCJ could begin working with him in developing plans for social and community engagement. However, if he is not deemed appropriate, the applicants will then be required to work with DCJ to address future care arrangements for the children. They identified Aunty C as a family member willing to be assessed as a respite carer and noted that this assessment may also provide a pathway to future care should the applicants be unable to maintain their care provision in the long term.
Ms Murtagh-Fraser concludes as follows:

There is little doubt [the applicants] love and are proud of [the children], the current Case Plans for each child reflect a loving and well-developed bond between [the children] and [the applicants]. That the applicants are doing the best they can and making decisions they believe to be in the children's best interests is also not contested. However, their ability to look at care for the children through a child focused lens is limited and suggests a lack of insight into the complex needs of these children and their capacity to recognise and meet these needs.

She further concludes the children needed a “forever home” that meets all of their needs. The applicants needed to be supported by DCJ to continue to provide quality care and it was important that they had access to both formal and informal respite options. She recognised that there would be an onus on DCJ, or their agent, to provide intensive case work support aimed at the children rather than aimed at the applicants. Ms Murtagh-Fraser also noted that the applicants would be required to undertake significant training, including but not limited to, parenting a child with trauma. She reported that the applicants have provided the children with a loving home, safety and care for the majority of their lives. They were important figures, and the importance of their relationship should be paramount in future planning and decision making.
Ms Murtagh-Fraser noted that if the applicants were to remain as authorised carers, DCJ would be required to: ensure the safety of the beds for the older and younger children; develop a plan regarding the foster son smoking in the house, which is against out of home care standards and prioritise the foster son being assessed for his capacity to provide care if the applicants were unable to maintain care due to age or health to either rule in or rule out the capacity of the applicants’ foster son. This may enable the applicants to move past their focus on how life would look like with their foster son as the carer for the children. DCJ should contact Aunty C and begin an assessment process for her as a respite carer, noting that after this assessment DCJ should look to a longer plan for intensive case work and to develop a plan for housing. Finally, Ms Murtagh-Fraser noted that family time with the children’s parents was not occurring and DCJ should ensure that the applicants were compliant and supported these relationships.
Ms Murtagh-Fraser further concluded that, given the breakdown of the relationship with the previous proposal to move the children, the level of trust and engagement would need to be re-established and DCJ should work directly with the children to identify and commence extracurricular activities.
On 14 October 2022, there was a home visit undertaken by caseworker, NR. She prepared a home visit report on 17 October 2022, which is included in the s 58 documents. It is reported that NR visited the children at school to have one-on-one time with them. During her meeting with the children, it was disclosed that when the children were naughty “they get hits”. The oldest child disclosed that he had been hit with a belt on his bottom and that they were hit every day. It was also disclosed that the children had been hit with a strap by S and that FTL put soap in the youngest child's mouth. The children reportedly disclosed that the applicants often threatened them with having to leave the home when they were naughty. It was reportedly disclosed that the applicants yell and swear at them all the time and the middle child said that she had wanted to tell them about this before, but she thought she would get in trouble. The children reportedly disclosed that they did not get enough to eat and the deputy principal at the school told NR that the children were “always starving”.
It is recorded that the children presented as unclean, with ill-fitting clothing, unbrushed hair and body odour. It was decided after that home visit to take the children to emergency respite in Dubbo immediately. It is recorded that FTK was advised of this by telephone at 3:00pm on that day.
There is a further home visit record dated 25 October 2022 recording a visit between NR and the three children on 20 October 2022. The discussions between NR and the three children are recorded in the home visit record. The interview refers to the children saying that they would get hit and spanked, that they would not be able to have lunch or tea and they were called racist names by FTL, like black monkeys. The children said that they we hit five, six or seven days a week. One of the children said they were locked outside and that FTL had thrown tomato sauce and peanut butter bottles at them. The oldest child had been reportedly spanked with their pants down. One of the children said that she was scared because S hits his dog “really hard”. They were happy going to Dubbo to the pool and they were never allowed to go to the pool at [Country town]. It is noted that the middle child was interviewed by herself. She said that she wanted to stay where she was until they found somewhere else.
There was a meeting between the applicants and DCJ staff to discuss the disclosures made by the children. The meeting was held on 27 October 2022 and there is a record of the meeting included in the s 58 documents. The record notes that the applicants, the applicants’ foster son, the FTL’s sister and other members of the family or friends of the applicants were present at the meeting. The meeting was attended by senior case worker with DCJ, Ms KS, DCJ cultural connections worker who attended by MS Teams and a DCJ casework specialist, SB, who recorded the notes during the meeting. The document is typed and is represented to be a transcript of the notes of the matters discussed at the meeting. It is 14 pages in length.
The notes record that there was a complaint made by FTL's sister that there had been no letter provided to the applicants outlining the allegations. The children had been removed from the school and the other children at the school and in the community had been impacted by this. It is recorded that DCJ staff who attended the meeting stated that DCJ had received information the children were being excessively disciplined and that they were smacked every day. DCJ also stated that the applicants’ foster son reportedly hit them when the applicants went out, the children were not fed properly, and they did not want to go back as they were scared.
The applicants disputed these matters. The applicants said that they discipline the children by separating them for a short period of time so that they would calm down. The applicants also said that they had been asking for support from DCJ for nine years, but nothing had been done. They wanted two additional rooms and a washing machine, and this had not been provided. When asked why the children said they did not want to go back because home was not safe, FTL’s sister said the children make up a lot of things. There was extensive discussion about the children and complaints were made about DCJ. DCJ representatives were asked to answer particular questions which were recorded during the meeting.
There was a telephone call between representatives of DCJ and the applicants on 4 November 2022, followed by a letter dated 4 November 2022 from DCJ to the applicants formally advising the applicants about the change of placement. The letter, signed by JC, manager client services DCJ, particularised the reasons for the change of the placement and was in response to the criticism made on 27 October 2022 that the applicants had not been provided with details of the allegations in writing. The letter recorded that the applicants were unable to meet the out of home care standards without extensive support provided by DCJ and that the children had made multiple disclosures to case worker, NR, regarding physical and psychological harm. The disclosures that were outlined in the letter were to the effect of those referred to in the home visit records dated 17 and 25 October 2022. It was noted that the applicants denied the disclosures and that there was laughter at some of the allegations raised. It was also noted that the disclosures made had been referred to DCJ’s reportable conduct unit.
It is apparent that the change in placement did not proceed smoothly and there is a letter from the children's paediatrician Dr Jacqueline Askwith, dated 12 January 2023. She notes she had been receiving reports that both the younger child and his siblings were “having quite difficult behaviours” since being removed from their home in [Country town]. She noted that this was not surprising given the children had lived so many years with the applicants, but she was of the view that things should have been explained to the children. The middle child was becoming very distressed. Dr Askwith recommended counselling for the children on a regular basis. Regular family time was scheduled between the applicants and the children by DCJ, both by telephone and in person, commencing the following day.
As already noted, by letter dated 26 April 2023, the applicants were notified that DCJ had decided to cancel their authorisation as authorised carers. The letter was signed by JC. The reasons given for the decision included: allegedly substantiated physical and psychological harm to the children; the concerns identified in the carer review of September 2022 and the history of concerns in relation to the applicants’ ability to comply with the Code of Conduct for authorised carers. At the time of this cancellation, the applicants did not have the care and control of any children following the removal decision notified in November 2022.
The children were placed in separate unit accommodation in one location with Westhaven as they were not able to find accommodation where they could all reside altogether under one roof. In a home visit in May 2023, it is apparent that the children were struggling given the separation from the applicants, the move from [Country town] and their schools and the nature of the temporary living arrangements. The younger child was dissatisfied with the placement and said that he wanted to return to the applicants. It is also noted that the younger child made an allegation of sexual misconduct between his two older siblings. This was investigated and it was found, on the balance of probabilities, that the sexual abuse could not be substantiated. It was also noted that each child had denied this allegation.
In a follow up discussion with the middle child on 24 May 2023, two DCJ case workers, including SB, attended her home to discuss ‘safety in care’ reports. In that discussion, the middle child disclosed a “secret” that she said she had not told anyone else about. She said that she wanted to discuss this secret with a female police officer and only wanted to tell her story once. She did not want anyone to know about his secret. She said that she was at the skate park in [Country town] when she was about seven years old. Her father was at the park. There is no reference in the reporting of who else was with her at the park. She needed to go to the toilet and her father took her and stayed with her. She said that her father started sexually assaulting her with his finger in her vagina. She said that this went on for some time and that he touched other part of parts of her body. He also grabbed her hand and wanted her to touch his private parts. Her father warned her that she told anyone he would kill her. She wanted to tell the police because she wanted this to stop. She said that she did not see him after this, and she hasn't talked to her father since this time.
She also said that FTL did not know about what had happened with her father, but he had done the same thing. She was coming out of the shower and FTK was helping her younger brother. She said that FTL took her towel off and when she was laying on the bed and he was putting baby powder on her, he took out his rude part and started touching her chest with it. He told her to keep it a secret. When asked why she had told them about this, the child said that she had a gut feeling that she would be safer. She was worried that this could happen again if she went back to [Country town] as there was no lock on the shower door.
Following this discussion, DCJ case worker, SB, provided a statement to police on 6 June 2023. There is no information before the Tribunal about the status of any police investigation into the alleged abuse, other than a reference in an internal DCJ document dated 13 September 2023 (referred to below) that the middle child was taken by a DCJ case worker to see a female detective about the disclosures but the child did not want to speak with her and the investigation was suspended.
Given the new allegations raised, the applicants were notified by letter dated 9 June 2023 that it was decided family time with the children would temporarily cease pending an investigation.
At interviews with the children on 24 May 2023, it is apparent that the children were still unsettled about the changes in their lives, and they were refusing to go to school. The younger child said he wanted to return to live with the applicants and he did not like the school where he was. The middle child also said that she was not going to school. The oldest child was not very communicative and said that he did not like going to school. On 6 June 2023 there was an internal consultation between DCJ case workers in relation to concerns raised about Westhaven staff. It was noted that NR conducted fortnightly home visits with the children and that DCJ staff also attend fortnightly MS Teams meetings with Westhaven to address any concerns that arise in the placement. Arrangements were made for the Westhaven team leader to work out of the vacant unit in the residence to provide additional support to the staff and to the children. It is also noted that any staff of concern identified had been removed from the children's roster.
Following her disclosure of sexual abuse in May 2023, the middle child was assessed by clinical psychologist, Jody Turner, who prepared a report dated 13 June 2023. Ms Turner noted that at the time of the referral, the child had no formal diagnosis although she had recently been prescribed medication on a temporary basis to assist with anxiety symptoms. During the interview the middle child reportedly acknowledged a history of self-harming behaviours that occurred while she was living in [Country town]. She said this was a way for her to cope with feelings when she would see something bad. She said that since leaving the previous placement, she has not engaged in any self-harming behaviours. Ms Turner reports that the child has a complex traumatic history and that her primary caregivers’ responses to her and her siblings’ behaviours were often unpredictable and at times extreme. There is no reference to the sexual abuse as part of this consultation. The middle child recounted to Mr Turner feelings of distress, fear and loneliness during the time she was living with them. Ms Turner concluded that the middle child is hyper vigilant to danger which means that she often interprets danger, even in neutral settings.
It is noted by Ms Turner that the middle child's current caregivers report difficulties that are consistent with ADHD. Whether her presentation is the result of post-traumatic stress disorder, ADHD or a combination of both, Ms Turner could not assess at that point of time. It was recommended that the child be provided with a stable and consistent care team with trauma informed staff. It was also recommended that she have psychological intervention to support her mental and social well-being.
Behaviour support plans were formulated for the older and younger children in July 2023. The older child had been refusing to go to school and had been exhibiting problematic behaviours such as swearing and making racist remarks. It was noted that it was likely he did not feel safe in his living circumstances at that time. The behaviour support plan for the younger child noted that he was having difficulty in managing his emotions when frustrated and could be physically aggressive. It is clear from records of interviews conducted with the children by DCJ stuff in late July and August 2023 that the children were unsettled. The middle child, in particular, was upset and had been self-harming because she was nervous about being made to go to school.
By letter dated 16 August 2023, DCJ wrote to FTL outlining the allegations of sexual abuse made by the middle child. FTL was given until 18 August 2023 to provide any written response. No written response was provided.
DCJ made an assessment in relation to the alleged sexual abuse by FTL. It is recorded in a ‘consultation’ document dated 13 September 2023 that FTL had been identified and formally recorded as a ‘person causing harm’. It is noted that following face-to-face assessment, the assessment was that there was sufficient reason to conclude on reasonable grounds, on the balance of probabilities, that FTL had caused actual sexual harm to the middle child. It is also noted that attempts had been made for FTL to give his perspective, but he had declined. FTL was therefore identified and formally recorded as a person causing harm.
As already noted, FTL was advised of this by letter dated 13 September 2023.
This consultation document included details about discussions with the middle child from May to July 2023. It was noted that a DCJ case worker had taken the middle child to see a female detective on 13 June 2023, but she did not wish to speak to her about the disclosures. It is also recorded that the middle child told NR that a solicitor, presumably being a reference to the separate representative, had spoken to the children about where they wanted to live. She said that her brothers wanted to return to the applicants, but she had said that she wanted to live somewhere else. She is reported as saying that her younger brother could not understand why she didn't want to go back but this was because he didn't know about the “sex stuff”. It is also reported that she told NR “I feel like if I go back to [Country town] something terrible will happen to me”. She also reportedly told NR that she was glad that she was taken away and made a number of other disclosures about disciplinary action taken by FTL. The document also records the middle child reportedly said she did not have any more secrets to tell right now.

The Reportable Conduct Unit of DCJ conducted investigations into the allegations made by the children against the applicants and the applicants’ foster son. The outcome of those investigations was notified to the applicants and their foster son by letter dated 20 October 2023.
There was one allegation made against FTK. It was alleged that prior to August 2022 she had assaulted the children by smacking them on the hands and on the side of their arms. This occurred when the children were naughty. The investigation found that FTK did smack the children as reported, noting that the claims were corroborated and were consistent with disclosures made to case workers. However, it was found that this conduct did not meet the statutory definition for reportable conduct. In relation to the allegation that FTK hit the children with a thong, this claim was found not to be sustained as, on the balance of the information gathered, there was insufficient evidence to support this claim.
In relation to the allegations made against FTL, the investigation unit identified one allegation which contained several different elements. One allegation was that, on various occasions prior to August 2022, FTL assaulted the children by smacking them on their hands, throwing bottles and other items at the youngest child and putting soap in his mouth and sometimes smacking the children on their arms. The investigation found that, having regard to the fact the reports were corroborated and consistent disclosures were made to case workers, the FTL did the things alleged. However, as with FTK, it was found that this conduct did not meet the statutory definition for reportable conduct. In relation to the allegation that FTL assaulted the children by hitting the oldest child on his backside with a belt, hitting the children with a thong and a belt and threatening that he would spank them “up and down the road”, these allegations were found not to have been sustained on the balance of the information gathered. There was insufficient evidence to support that the conduct had occurred.
In relation to the allegations made against the applicants’ foster son (S), there were two allegations investigated. One related to allegations made in respect of the children and one related to another party. The first allegations made were that the foster son had smacked the children on their hands. This allegation was found to have occurred because it was corroborated and consistent with disclosures made to case workers, but it did not meet the statutory definition for reportable conduct. One of the related allegations was that on various occasions prior to August 2022, the foster son had assaulted the children by hitting them with a thong or shoe, grabbing things from his room to hit the children behind their legs, hitting one of the children with a plastic coat hanger which caused a bruise and closing the bathroom door on the younger child and putting soap down his throat. These allegations were found not to have been sustained. Another related allegation was that the foster son hit the children with a strap, five to six times a week and that the oldest child was required to pull down his pants while he was being hit. He also allegedly said that he would smack the children across the street.
This allegation was found to have been sustained on the balance of all the information gathered from the children with corroborated reports and consistent disclosures made to case workers. This was also found to be reportable conduct which was recorded on DCJ’s carers register.
The second allegation related to a third party, where it was alleged that he had engaged in a sexual offence on a girl with two friends. This allegation was found not to have been sustained on the basis that the information gathered and there was insufficient evidence to support that this conduct occurred.
In a consultation meeting between DCJ staff and staff at Westhaven on 15 January 2024, the progress of the children was discussed. The consultation was directed to how DCJ would reconnect the children to their kin and to Country. It is recorded in the consultation document that, despite the best efforts and care from staff at Westhaven, the children were disengaged and missing home. They had expressed wishes to return to [Country town] although it was noted that DCJ had been able unable to find a full-time carer. It was proposed to schedule family time and visits to [Country town] to give the children something to look forward to and to re-establish connection to the family. It was noted that the applicants had two supervised visits with the children during the week and that one of the case workers was attempting to arrange family time with other extended members of the family, but this had ‘proven difficult’. It was also noted that family time visits would need to be supervised. One of the key issues discussed was how to encourage the children to attend school in Dubbo, which they were currently refusing to do.
On 16 January 2024, there was a report from the permanency coordinator of DCJ headed Permanency Consultation. The report notes that family time for the children had been inconsistent and previous visits that were organised by DCJ had resulted in limited or no family attending. Consequently, the children had felt let down by their family and had, at times, decided not to attend scheduled visits. Family time visit were being organised back on Country in [Country town] and the children's extended family, including paternal cousins and great aunts, were invited to attend. It was recorded that the children had expressed a desire to return to [Country town] and to attend the school they used to attend and see their friends. It is also recorded that two of the children expressed that they did not wish to return to the applicants’ care, but the youngest child stated that, given the choice, he would return.
According to the report, the difficulty in returning the children to [Country town] was that there was a lack of services available and there were difficulties in the family relationships. Three family group conferences had been held but none resulted in placement options for the children. While some extended family had expressed willingness to care for the siblings, on further assessment they were either unsuitable or could only provide respite care. It was noted that family had not been following through with tasks needed to be authorised as carers. It was also noted that the family in [Country town] had been approached by DCJ about organising a house in [Country town] for family members to live in the house and care for the children. However, the family were only able to commit to every now and then and agency staff were unable to service the area. Notably, it was reported that the children needed a more stable living arrangement than interim placement arrangements can offer and to reside closer to their community. It is also noted that the children needed to remain together as a sibling group and consideration was being given to whether Bourke may be a better option to locate a carer for the children.
A report of a home visit on 8 February 2024 conducted by a DCJ case worker, suggested that there had been some improvement for at least two of the children. The youngest child was given an outing reward because he had attended school for five days and, while the middle child had attended school for one day in the previous week and reported that she had enjoyed the day, she had not returned since.
There was little updated written information or reports provided about the children's progress at the time of the hearing.

Views of the children

Prior to the hearing the separate representative provided a document dated 3 May 2024 setting out the views and wishes of the children as communicated to her. The separate representative spoke to each of the children by video conference.
The older child said that he wanted to return to the care of the applicants, he was not attending school at present and was going to start a new school soon. He said that if he returned to [Country town], he would be attending his old school which had been the best school he had ever been to. He did not like the fact that the Westhaven workers kept going through his personal items in his bedroom, but this had since stopped. He also said the previous DCJ case worker had not been honest with them as they were originally told that they would only be in Dubbo for a week.
The youngest child was reportedly reserved in his responses to the separate representative. He said that he liked school and showed the separate representative his school shirt. He said that he wanted to return to [Country town] to live with the applicants and when asked if he would have any worries about returning, he paused before responding but then shook his head.
The second child chose not to speak with the separate representative. She had previously spoken to the separate representative by video conference on 5 June 2023 and at that stage said that she did not want to return to the care of the applicants or to [Country town].

Evidence of DCJ case workers and managers

JC gave evidence at the hearing. She signed both letters recording and notifying the applicants of the decisions now under review. JC has been employed in child protection for approximately 20 years. She has been the manager client services at DCJ for five years and has the supervision and oversight of the work in the area but does not have direct involvement. JC was involved in the decision to change the children’s placement, after having regard to the information provided by case worker NR. She was also involved in the decision to cancel the authorisation of the applicants as authorised carers. She said that when the children were originally placed with the applicants, it was intended that the placement be short term, but no other long-term options could be found.
JC said that the children were currently in a temporary placement out of Country in Dubbo. She noted that the children had been away from the applicants and [Country town] for 18 months and there had been changes over this period, and there had been ups and downs. She observed the two older children were still quite reserved, but the younger child had come out of his shell. The older child attended school infrequently and DCJ were looking to find another smaller school for him. She said that the middle child had recently signed up to play hockey. JC was asked her views about the children returning to [Country town] and whether training could be appropriate for the applicants. She said that she would not support the children returning to [Country town] to live with the applicants but said that if they did further training would be required. JC agreed that there were concerns about the current placement. The children were currently in separate units and, ideally, DCJ wanted the children to be in a house under one roof. She noted that the Westhaven staff had been kind but some of the staff had been quite strict.
JC said that the older child had not attended school this year and was anxious about the school environment and the rules. His attendance had been ad hoc last year. She said that DCJ wanted to return the children to Country and had assessed family members for suitability, but those assessments had either not been able to be progressed or the family members had withdrawn. She stated that one family matter member that was currently being assessed for suitability as a carer.
JC accepted that the issues with children refusing to attend school arose out of the placement change to Dubbo. Despite this, in her view there was an unacceptable risk if the children were returned to the care of the applicants. In particular, she was concerned about the allegations of sexual abuse made by the middle child. JC was questioned about the investigations made in relation to the disclosures made by the children. She noted that several of the allegations had either been not sustained or were not reportable, although one allegation was found to have been substantiated and FTL had been identified as a ‘person causing harm’. JC said that she did not believe measures could be put in place to mitigate the potential risks, although supervised family time could continue. The other concern JC raised was that the three-bedroom house of the applicants was not suitable and could increase the risk of physical harm.
JC agreed that the children had been removed to emergency respite care over the weekend and there had been little consultation before this. She noted that there was a difficulty with the floods in the region at that time and that roads had been, or were being, cut off so decisions had to be made quickly. She could not explain why the applicants were not given a copy of the allegations before the meeting of 27 October 2022. JC was asked about allegations of verbal abuse by Westhaven staff. She said that the issue had been reviewed and where appropriate, there had been a change in staff shift to remove the case worker. JC was also asked about what steps were being taken to ensure the children would attend school. She said that a small to medium school was now being considered. JC was asked to identify the Code of Conduct issues referred to in the cancellation letter. She referred the Tribunal to the carer review assessment of September 2022.
NR gave evidence. She was the case worker for the children until December 2023 after which time she was on extended leave. She handed over her case work responsibilities to new case worker, AB.
NR said she has been with DCJ for 13 years and has a degree in early childhood teaching. She was first allocated to case work responsibility for the children just before the previous Tribunal proceedings in 2021. She said this there were two incidents of disclosures made by the children while she was their case worker. The first disclosures were in October 2022 when she visited the children at school. She recorded those disclosures in her home visit record but noted that she did not undertake detailed interviews with the children at that stage. She said the older child had disclosed being hit with a belt and the middle child had disclosed that she had been hit with a big stick behind the door and that bottles had been thrown at the children and the younger child had disclosed the incident where soap had been put in his mouth. This was also disclosed by the middle child. The second disclosures about sexual abuse were made by the middle child in April 2023 and she was not involved in those disclosures.
NR said that the three siblings were very close. She was asked questions by FTK about the removal of the children on 14 October 2022. NR said that given the disclosures, she had driven the children to Nyngan so an assessment could be made about what would happen after the weekend. She was asked why she did not consult with the applicants before taking the children from the school before driving them to Nyngan. NR said that it was a difficult time because it was Friday afternoon and there was a problem with the roads being cut off by the floods. She said there was no time to consult with them at that stage and when she called her supervisor, she did what she was told to do. NR was asked whether she had promised the middle child that she could come and live with her. NR denied this. She said that she gave all children her mobile and work telephone number. NR also said that after the separate representative spoke to the middle child about her wishes the first time (in June 2023) she said that she did not want to return to [Country town] although she knew that this was what the boys wanted.
CLC gave evidence. She is the regional manager casework with DCJ where she has been since November 2020. She said that she had taken over the casework from another DCJ case worker on 20 November 2023. She is currently the case worker for the children and had been involved in assessing a number of family members for suitability as carers. She is midway through an assessment process with a family member in [Country town] who said that they would take all three children. The identity of that person could not be disclosed but the person was on Country and indigenous. The person had submitted a carer application and DCJ were waiting for national police checks. The person currently has a working with children check.
CLC provided updated information in relation to the children. She said that the youngest child now goes to school regularly, the older child had moved to a smaller school in Dubbo and consideration was being given by the Department of Education to putting in place additional supports for him. The school attendance of the middle child was more ad hoc. They had now identified a five-bedroom house in Dubbo, and they were planning to move the children into the home in mid-May 2024. She said that each of the children were seeing a psychologist and seemed engaged. CLC said three regular carers worked with the children over an 8-hour shift. DCJ tried to keep the care consistent, and they discussed the choice of carers with the children. She confirmed that the children would soon be moving from the units to a home, and it was anticipated that the same three carers already providing care would be involved to give some stability.
The applicants had undertaken family time visits with the children in Dubbo in January and April 2024 and in Brewarrina in March 2024. CLC was asked why the second child had not attended the April 2024 visit. CLC said that this was because she did not want to attend, although it was noted that she later attended the bowling with the family.

Evidence of the applicants

The applicants sought to rely on the affidavits and letters of support that they had relied on in the previous Tribunal proceedings. These affidavits comprised an affidavit of FTK sworn 3 April 2021, an affidavit of FTL sworn 4 April 2021, an affidavit from the applicants’ foster son sworn 3 April 2021 and letters of support from the director of a preschool in [Country town], an elder from a Catholic Church parish in Chatswood and a letter from FTL’s sister. The applicants also relied on a letter of support addressed from FTL’s sister to a local politician, dated 29 November 2022.
This affidavit material provides helpful background information. According to the affidavit of FTK, she was born and raised in Lismore and moved to [Country town] in 1990 as a schoolteacher. She married FTL in 1992. He was born in [Country town], and he is an Aboriginal man from the [X] Country. FTK was a schoolteacher for 20 years and taught in a number of Aboriginal communities. She retired from teaching in 1995 and she and FTL lived in Casino for 17 years. They cared for two young girls when they were living in Casino and in 1999, they decided to train with DCJ to become Aboriginal foster carers. They fostered many children while they were living in Casino, both short term and longer-term placements. Their foster son came into their care in September 2001 when he was three months old. They returned to [Country town] in about 2012 and continued to foster children after this time. They have had at least 36 children in their care over the years.
The applicants were approached in September 2013 to take on the care of the two older siblings. It was never indicated to the applicants that this was intended to be a short-term placement and they understood the restoration of the children to either of their parents may have been a possibility but otherwise believed the three children would remain in their care. While the children had been in their care there had been frequent change of case workers from DCJ. The applicants had often sought respite but had been advised by DCJ that none was available. DCJ advised them that they were proposing to remove the children to a permanent placement within a non-Aboriginal family in Deniliquin. They opposed this change in placement. FTK noted that she was disappointed the extended family were not more involved in the children's lives. She also noted that the change in the case workers had been very disruptive. She stated that it would be very detrimental to the children to have a change in placement.

The question that arises is whether the decision should be set aside so the children can be returned to the care of the applicants in all of the circumstances of this case. The inquiry is not whether DCJ should have removed the children in October 2022 or whether they should have taken different steps at that time but rather whether a different decision should now be made.
There is evidence that the relocation of the children from the place they have lived for the past nine years has had a negative impact on them. They have been uprooted from their school and separated from friends, the applicants and their extended family. There is evidence that the oldest child has not attended school, or attended school infrequently over the past 18 months, and is struggling. There is also evidence that the middle child is struggling with school, but it is unclear whether these issues may also be related to trauma from the sexual abuse alleged and recounting the allegations. The youngest child, who is reportedly doing well, was struggling before he left [Country town]. The boys want to return to live with the applicants, but it is not entirely clear whether this is also related to their desire to return to [Country town] and to their friends and family.
The children are in early adolescence, and it is possible that some of the anxiety they are currently experiencing would have arisen even if they had remained in [Country town]. There is evidence that the children were not being fully developed with extracurricular activities and sport and that they were given limited opportunities to attend the local swimming pool and skate park (FTL said that he took the children on these outings for about 30 minutes a day) and the applicants did not know about or had not considered other external activities outside [Country town].
Despite this, the home visit reports prior to October 2022 suggested that the children were relatively happy living with the applicants in [Country town] and that they were close to FTK. She was their primary carer, she attended all medical and other appointments and actively encouraged their schooling. The children reportedly argued like many siblings, but they were together and the care by the applicants over the years facilitated this in a family environment.
In contrast, after the children were removed, they were supervised in separate units by carers and they were moved to a new location and to new schools at a difficult and vulnerable period of their lives.
There is evidence that applicants, as aged carers, were struggling to support the children's increasing challenging needs and this may have resulted in the issues raised about excessive discipline. There is independent evidence, reported by Dr Wickramasuriya, DCJ case workers and others, that FTK was tired and struggling to cope. This is not unexpected in the circumstances and does not, by itself, justify the children's removal. However, it is apparent from the evidence contained in the documents and in the oral evidence at the hearing, that FTK bore the burden of the care for the children with little assistance from FTL. There is also evidence that the children's extended family were only able to give limited support or respite because they have families and other responsibilities of their own.
Notably, both applicants suggested that their foster son could be in alternative carer. However, there is no evidence that this is a realistic prospect given he has not progressed his application as a carer and has now been found to have engaged in reportable conduct in respect of the children, which may prejudice the renewal of his working with children check clearance. He did not give evidence about his wishes and intentions in this regard at the hearing and the only information we have about this matter is the evidence that he previously provided in April 2021 and expressions of his wishes made on his behalf by others. We therefore cannot speculate about what may happen in the future, particularly when any decision based on untested possibilities would simply compound the trauma for the children if another placement needed to be found.
Another relevant consideration is the accommodation at the applicants’ house which is accepted by the experts, including John Tredinnick, to be unacceptable. This has been an ongoing issue since the previous proceedings and despite evidence that DCJ has attempted to raise the issue, the applicants have not taken action to progress the issue. Both applicants, and FTL, who was apparently delegated the task by FTK, has not progressed this and when asked questions about this, FTL was dismissive of the need.
After the hearing, the applicants proposed an alternative solution whereby they would move to a room on the verandah, their foster son would move to a smaller room, the two boys would share, and the middle child would have her own room. Without understanding the practicality of this issue or being able to question the applicants about it, we are unable to form a view about whether this is a satisfactory solution. However, it is a matter of concern that this issue was not resolved earlier when it was it identified by John Tredinnick in his report and by Julianne Murtagh-Fraser in the carer review.
The Tribunal must make a decision based on the available material and in light of the known facts at this point of time.
The children have been away from the applicants and [Country town] for 18 months. They have been unsettled by the move, although there is evidence that there has been some improvement in recent times with two of the children. We accept the returning the children to Country if possible and facilitating care and connection with their kin is the preferable course. However, there is no guarantee that if the children return to [Country town] that their anxieties and challenging behaviours would resolve. At least two of the children require intensive case management and psychological support. There is a prospect of an alternative permanent placement being secured in the [Country town] area and setting aside the reviewable decision may jeopardise this placement. On the other hand, the likelihood and suitability of this placement is still unknown and, to a degree, speculative. As such the Tribunal should be cautious about giving this matter significant weight.
Apart from these matters, which are factors that must be considered in forming a view about the correct and preferable decision, a critical question that arises is whether the decision should be set aside, and the children returned, in circumstances where serious allegations have been made against one of the applicants. As observed by the separate representative, this raises 3 possibilities: the allegations are correct, the allegations have been fabricated or the allegations are not correct, and the child is mistaken but nonetheless believes the allegations are true.
Despite the fact that FTL denies the allegations and FTK believes they did not and could not have occurred, we cannot be comfortably satisfied in making such a finding. The applicants dispute the reporting of the disclosures by the DCJ case worker but there is no evidence, nor is there evidence of any mala fides on her part, for her to lie about her account of the discussions she has had with the middle child. Two DCJ case workers were present when these disclosures were made and a third DCJ case worker, NR, also became aware of the allegations. The accounts that have been given by the DCJ workers are consistent. There is no plausible explanation for this child to deliberately manufacture such an allegation. She was 11 years old when the disclosure was made. She was, and is, old enough to understand the serious nature of such an allegation and to be able to communicate the allegation. The record made of the disclosure and the discussion that took place between DCJ case workers and the child suggests that she understood the seriousness of the disclosure and made the disclosure freely.
The alternatives are that the allegation is a correct account of what happened or that the child, who was reportedly very young at the time the incident occurred, may be mistaken or may have a confused or false memory of this incident. In the second scenario, there is still a risk of future psychological harm in returning a child to an alleged perpetrators home if the child believes this incident occurred.
Questions about such matters have arisen for consideration in the family law context in resolving parental access disputes and in the context of working with children checks.
In the High Court case of M v M [1988] HCA 68; (1988) 166 CLR 69, the Court was considering the appeal of a husband and father who have been refused custody because of allegations of sexual abuse. The High Court noted that in such cases there were generally two issues. First, whether the parent has sexually abused the child and, secondly, whether there is a risk, if custody and access is granted, of sexual abuse occurring. The Court found that in the family court setting, the resolution of an allegation of sexual abuse against a parent was “subservient and ancillary to the court’s determination of what is in the best interests of the child” (at 21). The best interests of the child is the paramount consideration. The Court observed at [23]:

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 issues of access and custody, the Court observed that it was necessary to determine whether, on the evidence, there is a risk of sexual abuse occurring if custody or access is granted and assess the magnitude of that risk. After discussion about how this risk should be assessed and the variety of formulations that had been adopted by courts, the High Court noted, at [25]:

In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
[emphasis added]

In Isles & Nelissen [2022] FedCFamC1A 97, the appeal court (Alstergren CJ, McClelland DCJ, Aldridge, Austin and Tree JJ) further clarified the assessment of unacceptable risk, noting the distinction between proving alleged sexual abuse according to the civil standard on the one hand and establishing the risk of the feared sexual abuse occurring in the future. The Court discussed the previous Full Court authorities and, at [51], cited with approval as “a correct statement of the law” the commentary of Austin J at [132]-[142] in Fitzwater v Fitzwater [2019] 60 FamCAFC 251. Relevantly, Austin J observed at [138]-[139]:

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 (Potter and Potter [2007] FamCA 350; (2007) FLC 93-326 at [110], [129]). 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.

In the present case, there is evidence that a complaint of sexual abuse has been made by a child who is old enough to understand the serious nature of the complaint. The complaint was communicated to two DCJ case workers who have recorded the complaint, they have been repeated to a third DCJ caseworker. The complaint discloses sexual abuse by FTL and exposure to further abuse by her father while in the care of the applicants. The particulars provided by the child are detailed and she has repeated or referred to these allegations on several occasions after the initial disclosure but has refused to make a statement to police. This refusal means the police have been unprepared to further investigate the allegation and, as such, the allegations are untested.
Against this, there is no evidence that the child has withdrawn the allegation or has refused to report it because it is untrue. She has reportedly refused to discuss the complaint with police and has expressed a reluctance to disclose this “secret”. She does not want her brothers or anyone else to know. When the separate representative first asked her views, she said she did not wish to return to live with the applicants or return [Country town]. When she was again approached just before the hearing, the child refused to provide any response, which can be explained by the fact that she knows the wishes of her brothers and did not want to cause conflict or draw attention to her allegation.
While we are unable to make a finding the sexual abuse did occur, it is not necessary that we do so. Relevantly, we cannot discount the possibility and we are not satisfied on the available evidence that the child has fabricated the claims. At best, it may be that she is mistaken or has a false memory in this regard. On either of these two alternatives, we have formed the view that the risk in returning the child to the care of the applicants is unacceptable. She is a young vulnerable Aboriginal girl who has already been traumatised and is suffering significant anxiety. We do not need to determine the question of whether this is a risk faced by the other children, because it is apparent that all parties agree the children should not be separated. It is in their best interest that they stay together, and this is a view that they have expressed.
The possibility that at least two of the children, and more particularly the older child, may benefit from returning to the applicants’ home and to [Country town] is outweighed by the negative impact such a decision may have on the middle child and, therefore, the family unit. There is no evidence that this risk can be mitigated and returning to a home with the current living arrangements would exacerbate the potential risks. As such, we are of the view that the return of the children to the applicants presents an unacceptable risk in the circumstances of this case.
We therefore conclude the correct and preferable decision is that the decision under review should be affirmed.

Cancellation of the carer authorisation

The authorisation of the applicants was cancelled on the basis of the findings of the carer review and, relevantly, the concerns raised by DCJ staff that led to the removal of the children. The decision was made on the basis that the applicants are no longer suitable to be authorised carers, they can no longer provide a long term, safe, nurturing, stable environment, and the applicants are not able to uphold the children's right under the Charter of Rights to treat the children with respect to feel safe and not to be abused and to have privacy.
There is evidence before the Tribunal that raises concerns about whether the applicants remain suitable to be authorised carers. Leaving aside the allegations of sexual abuse against FTL, there are allegations that they have used excessive discipline, that they have not engaged adequately with the children and with their care needs and have failed to accept responsibility on key matters that they should have addressed.
We accept that several of the complaints raised about the suitability of the applicants to remain as authorised carers are warranted. The fact that they are aged is not the issue but rather it is unclear whether they have, jointly or separately, sufficient capacity to look after young children in their early teens with challenging behaviours and underlying trauma and mental health issues. FTK has problems with her eyes, FTL has diabetes and needs the assistance of a walking stick and there is no cogent evidence before the Tribunal, other than third party assertions, that their foster son is ready, willing and able to take over the role to assist. Furthermore, the applicants did not appear to understand the more fundamental issues and needs of the children. While there is evidence that over the years, FTK has had a good understanding about the needs of the children and has provided support for their schooling, in her evidence in the proceedings FTK appeared to be unable to accept or acknowledge the challenges ahead. FTL had little understanding and appeared to delegate the role primarily to FTK. There is no evidence about whether he is able to deal with the more fundamental and complicated parts of a carer role in overseeing medical and healthcare appointments and ensuring the children attend school and are provided with appropriate extracurricular activities.
While there is no evidence before the Tribunal that the applicants have serious medical issues that would compromise their capacity to continue as authorised carers, there is evidence that they both have health issues, the seriousness of which we are not able to assess in the absence of medical report about these matters.
In brief, having regard to the material before us, the assessment made in the carer review and the lack of insight by the applicants in relation to the challenges facing the children and in their role as authorised carers, we are concerned about the suitability of the applicants to remain as authorised carers at this time. However, the overwhelming concern relates to the suitability of FTL to remain as an authorised carer given the allegations made against him. He is recorded by DCJ on their records as a ‘person causing harm’.
As submitted by the separate representative, if the Tribunal is not satisfied that FTL is suitable to be an authorised carer, the difficulty that arises is that FTK will also be impacted by such a decision. The applicants have been married for more than 28 years and, under reg 37(3), children are not permitted to live with a person whose authorisation has been cancelled. There is no suggestion that FTK and FTL will separate, and it is difficult to contemplate how FTK could continue to be authorised in circumstances where she and FTL remain together. There is no evidence to suggest they would separate and indeed FTK vehemently denies the allegations made against FTL.
Having regard to all of the circumstances of the case and the evidence and findings above, we are of the view that the cancellation of the applicants’ authorisation as carers is the correct and preferable decision.

CONCLUSION AND ORDERS

We affirm the administratively reviewable decisions under review and make the following orders:

The decision of the respondent made on 27 October 2022 to remove the three children from the care of the applicants is affirmed.

The decision of the respondent made on 23 April 2023 to cancel the authorisation of the applicants as authorised carers is affirmed.

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

Registrar

Decision last updated: 05 August 2024

Medium Neutral Citation:	FTK v Secretary, Department of Communities and Justice [2024] NSWCATAD 218
Hearing dates:	6 – 7 May 2024 Submissions closed 24 June 2024
Date of orders:	05 August 2024
Decision date:	05 August 2024
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J Redfern PSM, Senior Member J Herberte, General Member
Decision:	(1) The decision of the respondent made on 27 October 2022 to remove the three children from the care of the applicants is affirmed. (2) The decision of the respondent made on 23 April 2023 to cancel the authorisation of the applicants as authorised carers is affirmed.
Catchwords:	ADMINISTRATIVE LAW — child protection — out of home care — application for review of decision to remove children from care of authorised carer — application for review of cancellation of authorisation as authorised carers
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Children and Young Persons (Care and Protection) Act 1988 (NSW) Children and Young Persons (Care and Protection) Regulation 2022 Civil and Administrative Tribunal Act 2013 (NSW) Community Services (Complaints, Reviews and Monitoring) Act 1993 Evidence Act 1995 (NSW)
Cases Cited:	Fitzwater v Fitzwater [2019] 60 FamCAFC 251 Isles & Nelissen [2022] FedCFamC1A 97 M v M [1988] HCA 68; (1988) 166 CLR 69
Category:	Principal judgment
Parties:	FTK (First Applicant) FTL (Second Applicant) Secretary, Department of Communities and Justice (Respondent)
Representation:	FTK (self-represented) FTL (self-represented) Solicitors: Care Legal (Respondent) Legal Aid (Separate Representative)
File Number(s):	2023/00088322 2023/00349530
Publication restriction:	(1) Section 65 of the Civil and Administrative Tribunal Act 2013 (NSW) applies to these proceedings. (2) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the disclosure, publication or broadcast of the names of the applicant and the children is prohibited.