MI v Communicare Sydney

[2009] NSWADT 164

CITATION:	MI v Communicare Sydney [2009] NSWADT 164
DIVISION:	Community Services Division
PARTIES:	APPLICANT MI RESPONDENT Communicare Sydney
FILE NUMBER:	094009
HEARING DATES:	15 & 18 May 2009
SUBMISSIONS CLOSED:	25 June 2009
DATE OF DECISION:	26 June 2009
BEFORE:	Britton A - Deputy President; Goodman-Delahunty J - Non-Judicial Member; Foreman P - Non-Judicial Member
CATCHWORDS:	Review of decision to deregister a family day care carer
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Children’s Services Regulation 2004
CASES CITED:	YG & GG v Minister for Community Services [2002] NSWCA 247 McDonald v Guardianship Administration Board [1993] 1 VR 521
REPRESENTATION:	APPLICANT In person RESPONDENT C Wilson
ORDERS:	The decision to deregister MI as a family day care carer is revoked. This order will come into effect only after the following conditions are satisfied: (i). MI agrees to undertake any further training as directed by Communicare relating to the statutory obligations of family day care carers (ii). MI provides a written undertaking to Communicare that she will not in any circumstances leave any family day care child entrusted to her care in the care of another person, including but not limited to any member of her family (iii). That MI provide a copy of the above undertaking to all persons who reside at her home (iv). That MI provide to Communicare a statement from any person who resides at her home to the effect that they have sighted and understand the undertaking given by her to Communicare as set out in (i) above.

1 MI has applied to the Administrative Decisions Tribunal for review of the decision to deregister her as a family day care carer. The decision was made by Communicare Sydney, the respondent in these proceedings, a licensee of a children’s service approved to provide family day care.

2 The decision now under review was taken following a discovery made in the course of an unannounced visit by a Communicare child development officer that MI had left a family day care child in the care of her mother-in-law while she went to the airport to pick up a family friend. MI was notified of the decision by letter dated 27 January 2009. The letter set out three further alleged contraventions of the Children’s Services Regulation 2004.

3 MI holds a diploma in children’s services and prior to commencing in family day care worked for four years as a child care worker in a long day care centre. She has been registered with family day carer since March 2005. No complaints have been made about her in that period.

4 MI admits that she left the child in the care of her mother-in-law and acknowledged that this was in contravention of her obligations as a carer. However she argues that there were extenuating circumstances and given her long and unblemished history as a carer the action was unnecessarily harsh.

Power to review the decision to de-register MI

5 The decision by Communicare to remove MI’s name from the register is reviewable by this Tribunal: s 38(1) of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) and cl 123A of the Children’s Services Regulation 2004 (the Regulation).

6 The Tribunal Act provides that a person can apply to the Tribunal for review of a ‘reviewable decision’ such as a decision to remove a person’s name from a family day care register, but only where an internal review is taken to be finalised (s 55(1)(b)).

7 An internal review was conducted at the request of MI and affirmed the original decision.

8 MI’s application for external review by the Tribunal was lodged on 3 March 2009. It is not in issue that the application was made within time and that the Tribunal has the power to review the decision.

Reasons for deregistration

9 Communicare gave the following reasons for the decision to deregister MI:

Leaving a family day care child in the care of a family member

Permitting a family day care child into an ‘unregistered’ part of her home

Failing to receive a family day care child into care

Failing to ensure that family day care child was signed in on arrival to her home.

10 Communicare told the Tribunal that it saw the first of these allegations as the most serious.

Allegation 1: Leaving a family day care child in the care of a family member

11 Much of the evidence is not in issue.

12 On 22 January 2009 just after 8am, MI was rung by a young family friend from China who had just flown in from Melbourne and could not locate her luggage. According to MI the girl was very upset. MI had previously promised the girl’s family that she would assist her on her arrival in Sydney. The day before an arrangement had been made that the girl, a young adult, would make her own way to MI’s house by taxi.

13 When she received the call MI had one child, Child 1, in her care. A second child, Child 2, was scheduled to arrive within the next hour. MI contacted Child 2’s father and advised him of her predicament. She said he could delay bringing his son over until she returned from the airport or leave him in the care of her mother-in-law. (MI’s parents-in-law lived with her and were both at home that morning.) He elected the latter.

14 MI also attempted to contact Child 1’s mother without success.

15 The other children who were usually in MI’s care did not require care that morning —one was attending a medical appointment and would not arrive until the afternoon, two were on holidays.

16 MI said that she had no option but to attend the airport— her parents-in-law could not drive; her husband was unavailable; her car did not have fitted child seats; she had promised the girl’ family that she would look after her when she arrived in Sydney; the girl was in obvious distress. In cross-examination she conceded that she was aware that she could have rung Communicare to arrange for someone to fill in for her. She said she believed the children were in safe hands — her mother-in-law had been a primary school teacher in China, often cared for her grand-daughter, had looked after Child 1 on the weekends at the request of Child 1’s mother; the children in her care knew her and saw her as part of their family.

17 To minimise the time she would be away, MI enlisted the help of the mother of one of the children she cared for but who was not in her care that day. MI’s home was about a ten minute drive from the airport. She left home shortly after 9.30 am and returned at about 10.15 am.

18 At about 9.45am a Communicare child development officer arrived at MI’s home on a routine but unscheduled visit. On her account on arrival she saw Child 1 in the ‘unregistered area’ a couple of metres from an ‘elderly lady’ who she later learnt was MI’s mother-in-law. MI’s mother-in-law spoke little English. According to the officer the only words she understood from the mother-in-law was ‘airport… MI not here’. The officer immediately contacted her supervisor who took steps to contact Child’s 1 mother.

19 Child 2 and his father arrived shortly after the officer. MI arrived about 10 to 15 minutes later.

20 The Communicare officers advised MI that her conduct in leaving the children with a person not registered with the scheme represented a serious breach of the rules governing family day care carers, that the matter would be investigated and that she could not resume her role as a family care carer until such time as that investigation was finalised. The parents were advised that temporary alternative arrangements would be made for the care of their children.

21 A few days later MI was advised in writing of the decision to deregister her as a carer.

Allegation 2: Permitting a family day care child into an ‘unregistered’ part of her home

22 The only material conflict in the evidence is whether Child 1 was in the unregistered area when the child development officer arrived.

23 The ‘unregistered area’ is what the parties have referred to as the fenced area in MI’s backyard behind a designated play area. While not clear what rule or regulation was relied on to deem this area ‘unregistered’ it is common ground that MI acknowledged that the area was potentially unsafe and children were not to be permitted into the area in any circumstances.

24 Among other things the area contained a shed which stored equipment including garden tools and the like and a day room that was used by MI’s parents-in-law to relax in and study throughout the day.

25 The child development officer testified that when she entered the backyard by a passage running alongside the house she saw Child 1 coming out of what she understood to be a shed in the unregistered area behind the fence. She claims that MI’s mother-in-law was about four metres from Child 1 and appeared to have a pair of pliers in her hand. She said Child 1 did not appear to be in any distress. She claimed that she also saw a range of garden tools and chemicals and the like in close proximity to the child.

26 The officer testified that she made a note of what she saw but was unsure given ‘all that was happening’ whether it was made during the visit or on her return to the office. The Tribunal called for that note and it was produced in the second day of hearing. Headed ‘Home Visit Report Type 1’ it relevantly stated:

G/parents +[Child 1] were in garden area, I asked for [MI], G/parent said ‘No @ airport’. … Child 2 then arrived…

27 Under cross-examination the child development officer insisted that she had not been mistaken and that the child was behind the picket fence in the unregistered area when she arrived.

28 MI’s mother-in-law provided a statement in these proceedings and gave oral evidence through an interpreter. Her account conflicted with that given by the officer. She claimed that shortly after MI left to go the airport, Child 1 asked to go outside and she accompanied him. She testified that when the officer arrived Child 1 was playing in the designated play area not the unregistered area. According to the mother-in-law she was very confused – the officer was shouting ‘where’s MI?’ and she did not know who she was.

29 She said that she was clearly aware that the children were not permitted in the unregistered area and MI had repeatedly advised her of this.

30 Child 2’s father provided a statement to the Tribunal. He stated that he met the Officer on arrival at MI’s house and observed that Child 1 was playing in the area the children usually play.

31 Child’s 1 mother provided a statement and also gave oral evidence claiming that she has never seen children playing in the unregistered area or chemicals or tools lying around. She said MI had told her that children were not permitted in the area and that her son was often reminded of this.

32 Our findings We have before us conflicting accounts about where Child 1 was when the officer arrived. There are only two witnesses to this event – the officer and the mother-in-law. Having carefully considered all of the evidence we think it more likely than not that the child was in the unregistered area if only for a short period. In reaching that conclusion we note that the statement provided by Child 2’s father does not support a finding that he arrived at the same time as the officer and therefore his evidence on the point does not assist us. While not possible to determine with any precision at what time the officer made the note we are satisfied that at the latest it was made shortly after her return to the office. There was no apparent reason for the officer to fabricate the note or the evidence whereas the mother-in-law had obvious motives for denying the allegation. This, combined with the relative contemporaneity of the note itself, suggests that the officer’s account is the more reliable. For that reason we prefer her account.

Allegation 3: Failing to receive a child into care

33 On 22 January 2009 Child 1’s mother was running late for work. She saw the mother-in-law on the street and handed her son over to her and drove off. The mother said she had no concerns entrusting her son to the mother-in-law as he knew her well, had been cared by her on occasion on weekends and saw her as part of his family. The mother said she was aware she was required to walk the child in but on that day was in a rush to get to work.

Allegation 4 Failing to sign in child on arrival.

34 Child 1’s mother did not sign him in on the morning in question. She testified that there was a prominent sign displayed in MI’s home reminding parents of the need to sign in their child on arrival and departure. She said that MI had chided her when on occasion she had forgotten to sign the register and impressed upon her the need to do so.

Testimonials

35 Tendered in these proceedings were a number of references provided by parents whose children had been cared for by MI. All attested that MI had provided an excellent standard of care and that they were confident that the children were loved and cared for. All spoke of the extremely high standard of care.

36 The mother of Child 1 provided a statement and gave oral evidence. On her account her son whom she described as ‘a very active and at times challenging boy’ had ‘improved 100 per cent’ under MI’s care. She said that through MI’s guidance she had developed and now uses a range of behavioural management techniques and her son is more settled.

37 The father of Child 2 echoed this high opinion of MI. He claimed that he had every confidence in her ability as a carer. He claimed that he had never sighted hazardous materials in the vicinity of the children. In his opinion MI is ‘one of the best carers we have had so far for our son’.

Findings and Conclusions

38 The issue for us to determine is what is the ‘correct and preferable’ decision having regard to all the information now before us including, that which postdates the original decision (see YG & GG v Minister for Community Services [2002] NSWCA 247 at [25]). In conducting this review, we ‘stand in the shoes’ of Communicare, and make the ‘correct and preferable’ decision having regard to all relevant material (Tribunal Act, s 63). We are obliged to conduct our review ‘without any presumption as to the correctness of the decision’: McDonald v Guardianship Administration Board [1993] 1 VR 521 at 530 (SupCtVic, Appeal Div).

31 MI’s decision to leave her charges constitutes a serious error of judgement. It was in clear breach of her obligations under the Children’s Services Regulation 2004. As Communicare points out, family day care in NSW is now heavily regulated and exacting standards are imposed on licensees of children’s service and carers alike. In imposing these standards Parliament’s objective is clear: to ensure that children cared for in family day care are provided with quality care in a safe and secure environment.

39 Communicare argued while the many parents who have supported MI’s application have stated they were not overly troubled by MI’s transgression they are likely to have had a less tolerant view had an accident or misadventure occurred. It claims that MI’s absence would have voided the insurance policy covering the children in her care. It further points out that the mother-in-law had limited English and did not hold a first aid certificate – a requirement imposed on all carers. It submits that whatever the experience and attributes of the mother-in-law, as the licensee it bears the statutory responsibility for ensuring that only appropriately qualified and experienced people supervise children in family day care and under the legislative scheme it is not open to carers to appoint a proxy, even for a short period. It further points out that there was an option available to MI, which she did not utilise, namely to contact Communicare and have emergency arrangements put in place. Importantly it contends that there is a risk that the incident might be repeated.

40 MI argues that insufficient weight was given to her strengths as a carer, pointing to the support and testimonials she has received from parents; her previously unblemished record as a carer; the fact that her service has been given the highest rating available under the current accreditation system for family day care.

41 As stated by Communicare, MI’s decision to leave the children was the main reason her registration was cancelled. While the other contraventions of the Regulations were of concern, of themselves, they would not have warranted deregistration.

42 In our view a critical factor to be taken into account in reviewing Communicare’s decision is the likelihood that the offending conduct might be repeated. While impossible to exclude that possibility we think that it is improbable for these reasons. First, there is no evidence to suggest that it formed part of a pattern of conduct or was other than a one-off occurrence . It is apparent it was not a decision taken lightly — MI went to some lengths to notify the parents of the affected children of her absence and minimise the time she would be away. Second, we are satisfied that the decision to deregister MI has had a deterrent effect. She has effectively been suspended for a period of about six months. She is now well aware that such conduct will not be condoned if repeated. Third, we are satisfied that MI fully appreciates her serious error of judgement.

43 Having regard to all these factors we have concluded that there is no material risk that the conduct will be repeated even if the circumstances are repeated and MI finds herself called upon to help a person towards whom she feels some responsibility. Given our finding on risk we believe it would be unfortunate to lose a person of MI’s obvious calibre from the ranks of family day care carers and for that reason have decided to revoke Communicare’s decision.

44 In our view, at the time it was made, the decision to deregister MI was the correct decision. Communicare correctly characterised the conduct as most serious and took decisive action. No doubt it was concerned not only to exclude the possibility that MI might repeat the conduct but also to make something of an example of MI and put other carers on notice that relinquishing their post, even in exceptional circumstances would not be tolerated.

45 In reviewing that decision six months on we are required to decide what is the correct and preferable decision now and must have regard to any developments that post date the original decision. Since that decision was taken MI has been ‘suspended’ for six months, which as stated we believe to have had a deterrent effect and be relevant to an assessment of risk. Having regard to that and all relevant factors we conclude that the correct and preferable decision is to revoke the original decision.

46 In making our decision in the interests of abundant caution we have decided to impose a number of conditions under s 85 of the Administrative Decisions Tribunal Act 1997, which are set out below.

Orders

The decision to deregister MI as a family day care carer is revoked. This order will come into effect only after the following conditions are satisfied:
(i). MI agrees to undertake any further training as directed by Communicare relating to the statutory obligations of family day care carers.

(ii). MI provides a written undertaking to Communicare that she will not in any circumstances leave any family day care child entrusted to her care in the care of another person, including but not limited to any member of her family.

(iii). That MI provide a copy of the above undertaking to all persons who reside at her home.

(iv). That MI provide to Communicare a statement from any person who resides at her home to the effect that they have sighted and understand the undertaking given by her to Communicare as set out in (i) above.