Minister for Community Services v Ce (No. 2) (CSD)

[2002] NSWADTAP 1

Appeal Panel

CITATION:	Minister for Community Services -v- CE (No. 2) (CSD) [2002] NSWADTAP 1
PARTIES:	APPELLANT Minister for Community Services RESPONDENTS Mr And Mrs CE
FILE NUMBER:	019050
HEARING DATES:	On the papers and further hearing on 19/12/2001
SUBMISSIONS CLOSED:	12/19/2001
DATE OF DECISION:	01/07/2002
DECISION UNDER APPEAL:	CE -v- Director General, Department of Community Services [2001] NSWADT
BEFORE:	O'Connor K - DCJ (President); Britton A - Judicial Member; Groth D - Member
CATCHWORDS:	custody - decision to terminate the custody of a ward
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	014031
DATE OF DECISION UNDER APPEAL:	10/18/2001
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Children (Care and Protection) Act 1987 Community Services (Complaints, Reviews and Monitoring) Act 1993
CASES CITED:	Minister for Community Services -v- CE (No. 1) [2002] NSWADTAP 7 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 McDonald v Guardianship Administration Board [1993] 1 VR 521 Briginshaw v Briginshaw (1938) 60 CLR 336 Reynolds v Reynolds (1973) 47 ALJR 499 McKee v McKee [1951] AC 352
REPRESENTATION:	APPELLANT M Anderson, counsel RESPONDENTS B Rigg, counsel
ORDERS:	The decision to terminate the respondents’ custody of the wards is affirmed.

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(1A) …
(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a) who appears as a witness before the Tribunal in any proceedings, or

(b) to whom any proceedings before the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,


whether before or after the proceedings are disposed of.
Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

1 On 23 March 2001 the Department of Community Services (the Department) acting under delegation from the Minister for Community Services (the Minister) removed two wards from the care of a family with whom they had been placed under a foster care agreement. The two wards, C1 and C2, were brothers, then aged five and three. The carers with whom they had been placed were Mr and Mrs CE (the respondents to the appeal, and the applicants in the original proceedings.) The removal was permanent. The decision was taken following a report that Mr CE had used excessive methods to discipline C1, in particular, on 21 March 2001.

2 It was not disputed that the decision was made in exercise of the power of the Minister to terminate the custody of wards, a power conferred by s 91(e) of the Children (Care and Protection) Act 1987 (the C & P Act). The decision is reviewable by the Administrative Decisions Tribunal: C & P Act, s 112(h), read in conjunction with Administrative Decisions Tribunal Act 1997 (the Tribunal Act), s 38 and s 40(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993.

3 Mr and Mrs CE applied on 17 May 2001 to the Tribunal for review of the decision. By decision dated 18 October 2001, the Tribunal (Community Services Division) ordered that the Department’s decision be set aside; and made further orders, the ultimate object of which was restoration of the children to the custody of Mr and Mrs CE.

4 On 19 October 2001 the Department lodged an appeal under s 113 of the Tribunal Act against that decision, submitting that it was affected by various errors of law. An application to stay the Tribunal’s decision pending determination of the appeal was granted. The appeal was heard on 28 November 2001; and ex tempore orders were made at the close of argument. The appeal was upheld, essentially on the basis that the Tribunal’s reasons for decision were not adequate. The Appeal Panel gave short oral reasons, with the intention that fuller written reasons be issued at a later date. Written reasons for decision have now been published: see Minister for Community Services -v- CE (No. 1) [2002] NSWADTAP 7.

5 The Department had in its notice of appeal applied for leave to extend the appeal to a review of the merits of the appealable decision: see s 113 of the Tribunal Act. The usual practice of Appeal Panels of the Tribunal in the case of successful appeals has been to refuse to grant leave to extend the appeal to a review of the merits and instead to remit the matter to be reheard. On this occasion, the Appeal Panel decided that considerations of urgency justified it retaining the matter and disposing of the matter on the merits. Plainly, as time passes and the boys bond with their new family, Mr and Mrs F1, where two of their siblings (C4 and C3) are also cared for, the appropriateness of removing them again and restoring them to Mr and Mrs CE must decline.

6 The parties were agreeable to the Appeal Panel rehearing the matter on the basis of the existing transcript, unless it considered that there was a need for additional evidence. The Appeal Panel did decide to summons telephone records relating to the use of the Telstra line at Mr and Mrs CE’s home on 23 March 2001, as that was material to disputed evidence given by Mrs CE’s sister, S. The Appeal Panel convened a further hearing on 19 December 2001 to consider the records produced, and to hear any further submissions.

Applicable Law

7 The Minister’s role in relation to the guardianship, custody and care of wards and other protected persons is clearly a protective one.

8 The C & P Act reflects the historical common law position in relation to the Minister’s and the Department’s responsibilities:

· ‘the welfare and interests of wards and protected persons shall be given paramount consideration’,

· ‘in determining any matter relevant to the welfare or interests of a ward or protected person, regard shall be had to the wishes of the ward or protected person.’ (s 91(1) and s 91(2) respectively)

9 Correct and preferable decision : In dealing with the review of reviewable decisions, the Tribunal is required to determine whether the decision made by the administrator (in this case, the Department acting on delegation of the Minister) was the correct and preferable one: the Tribunal Act, s 63. The Tribunal may have regard to all material that was relevant at the time of the decision as well as any further material that is relevant as at the time of the hearing.

10 As to the Tribunal’s role, it is not enough for the review tribunal merely to ask did the Department act reasonably. In Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 Smithers J said at 599: ‘The duty of the [merits review tribunal] is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view was, objectively, the right one to be made. Merely to examine whether the administrator acted reasonably in relation to the facts, either as accepted by him or as found by the [tribunal], may not reveal this.’

11 Importantly the merits review tribunal is ‘obliged to conduct the review without any presumption as to the correctness of the decision under review’: McDonald v Guardianship Administration Board [1993] 1 VR 521 at 530 (SupCtVic, Appeal Div).

12 Criteria relevant to decision under review: The High Court decision in M v M (1988) 166 CLR 69 is instructive on this point. That case arose out of the custody jurisdiction of the Family Court.

13 There the primary judge had awarded custody to the mother of a daughter and in addition refused a father access to his daughter. He did so on the basis that while he could not be satisfied that the mother’s allegations against the father of sexual abuse of the daughter were proven, he had ‘lingering doubts’ sufficient in his view to make it imprudent to grant the father any access when regard was had to the paramount interests of the child. The father appealed to the Full Court of the Family Court. It dismissed the appeal by majority of two to one. The majority agreed with the approach adopted by the primary judge.

14 The Chief Justice, Nicholson CJ, dissented. While accepting that positive proof of the allegation was not essential, his Honour considered that a higher standard of satisfaction was required before denying a father access than that adopted by the primary judge. Nicholson CJ considered that ‘[t]here must be a real or substantial risk of such abuse occurring as a matter of practical reality.’

15 The father appealed to the High Court. In its joint judgment the Court dismissed the appeal. The Court said at 75-76:

‘In proceedings under Part VII of the [Family Law] Act in relation to a child, the court is enjoined to ‘regard the welfare of the child as the paramount consideration’ (s 60D). … The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.

…[T]he resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the court to try the case as if it were not more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance probabilities.

In considering the allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof …’.

16 The Court referred to the well-known dicta of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362. Dixon J said:
‘Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.’
17 The Court continued:
‘[These] remarks have direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw , that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.

No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. …

In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of the risk.’

18 The Court then discussed various ways in which the courts have attempted to describe the magnitude of risk. It concluded:
‘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.’
19 The Court noted that the primary judge had used the expression ‘lingering doubts’ but was satisfied, viewing the reasons as a whole, that he was not satisfied as to the allegation by reference to the civil standard, as expressed in Briginshaw . The Court stated that the primary judge ‘obviously concluded that there existed an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access.’ See also Reynolds v Reynolds (1973) 47 ALJR 499; McKee v McKee [1951] AC 352 at 364-365.

20 Those observations should, we consider, guide us in considering whether to set aside or otherwise vary the Department’s decision. In addition, it is necessary to have regard to any standards that are particular to the foster care setting and go beyond those that might be seen as applicable to a dispute over custody between the natural parents. Carers enter into an Agreement with the Department to conform to the Foster Care Code. That occurred in this case. Clause 8 relevantly provides:

‘ Discipline of Foster Children

8. A foster carer must ensure that a foster child in his or her care:

is given positive guidance towards socially acceptable behaviour;

is not subjected to or threatened with:

(i) any form of corporal punishment; or

(ii) any punishment that takes the form of immobilisation, force feeding or depriving food; or

(iii) any punishment that is intended to humiliate or frighten the child.’

21 Level of Satisfaction in relation to Allegations : It follows that it is not necessary that allegations leading to removal of children from custody need to be proven on the balance of probabilities because of their seriousness to the ‘comfortable satisfaction’ of the Tribunal (the Briginshaw standard). The question for the Tribunal in this case, to paraphrase the test set down by the High Court in M v M , is whether there is an unacceptable risk that the child would be exposed to abuse if the child had remained in the custody of the foster carers.

22 The Tribunal must decide whether the Department, on the evidence now available, made the correct and preferable decision. The focus of the inquiry is the paramount interests of the children.

Background to Placement with Mr and Mrs CE

23 Before turning to the decision itself, some background information in relation to the placement with Mr and Mrs CE follows.

24 C1 (d.o.b 1.11.95) and C2 (d.o.b 27.7.97) are respectively the third and fourth children of P1 and P2. Along with their older brothers, C4 and C3, they were removed in May 1998 from their natural parents and taken into the care of the Department following allegations of neglect and abuse. (It is understood that the two youngest children continue to reside with P1. A sister aged 17 months died tragically in a fire in 1995.)

25 C1 and C2 were subsequently returned to the care of their mother but again were removed in late 1998. On 25 October 2000 the children were made subjects of wardship orders pursuant to s 72 of the C & P Act until they each attained the age of 18 years.

26 C4, C3, C1 and C2 were placed in the care of the F1 family. However, after a short period C1 and C2 were placed in alternate care as Mr and Mrs F1 considered they were unable to care for all four brothers.

27 Between late 1998 and August 2000 C1 and C2 had been placed in eight foster homes and were removed from at least two of those placements because of allegations of abuse. (There are professional diagnoses that C1 may be affected by Attention Deficit Disorder (ADD).)

28 Placement with Mr and Mrs CE: In April 2000 Mr and Mrs CE responded to a newspaper advertisement placed by the Department seeking foster carers for “two brothers”. They were both aged in their early 30s, had at that time been married for almost 14 years and had a 12 year old daughter, D. Mr and Mrs CE were provisionally accepted and undertook introductory foster parenting courses as required by the Department.

29 In July 2000, Maureen Regan, consultant social worker, on behalf of the Department interviewed and assessed Mr and Mrs CE for the placement. In a report dated 1 August 2000 (the Regan Report) she recommended that they be approved for the long-term care of two children between the ages of 0-10.

30 On 3 August 2000 the children were placed in their care. Then by letter dated 31 August 2000 the Department formally advised Mr and Mrs CE that they had been approved under the C & P Act as long-term foster carers for C1 and C2, subject, among other things, to an initial six-month review.

31 In her report Ms Regan described Mr and Mrs CE’s natural daughter D (d.o.b. 21/8/1987) as “a healthy, happy and well adjusted young woman who is meeting her age related developmental tasks appropriately.” She further noted, “Mr and Mrs CE have successfully raised their own daughter”.

32 Mrs CE’s sister, S - seven years younger than Mrs CE and then aged 26 - also lived at the house. There was dispute as to the degree to which she lived there. S had, since the age of 14, when her and Mrs CE’s mother died, lived on and off with Mr and Mrs CE. She was a University student undertaking the course for a Science degree and had, since she was 21, worked on a regular part-time basis with a pathology lab. There is no reference to her in the Regan assessment report. The reason for that omission was the subject of detailed evidence.

33 Progress of Children: In a report dated 1 September 2000 (made about 4 weeks after the placement), paediatrician Dr Rosemary Ambler noted that “since being in the foster situation for the past few months C2 has shown a calm personality with no tendency to be aggressive and he has thrived on a structured routine.” She noted that “C1 has also apparently been well …and has not displayed any personality problems since joining the Mr and Mrs CE.”

34 Between August and September 2000 C1 attended play therapy with therapist Jo McVeigh on a weekly basis. In a letter dated 23 October 2000 to the Department and Mr and Mrs CE, Ms McVeigh advised, “C1 appeared to be responding to this stable placement and currently was not in need of further therapy.” She further notes, “During the early sessions C1 engaged in traumatic play with themes of death and family violence. Since C1 went to live with Mr and Mrs CE these traumatic themes have not resurfaced…”.

35 November - January period: The Fairfield office of the Department was responsible for the management of the placement. Regular case management conferences were held. The records of case conferences held over this period were before the Tribunal. The notes reveal disagreement between the Department and Mr and Mrs CE over a number of matters. For example, the Department had recommended that the boys be taught swimming. Mr and Mrs CE preferred to give them lessons at home in the family pool. Mr and Mrs CE also declined for the time being to undertake a recommended course on positive parenting. Mr CE considered that he was adequately trained in that regard because of his studies in psychology and work he had done in connection with a ‘solo dads’ welfare program for Anglicare. There was also concern on the part of the Department over Mr and Mrs CE’s preparedness to enable the boys to maintain contact with their natural mother and siblings. There was also concern that Mr and Mrs CE had declined to send C1 to pre-school for the final term of the year 2000 before he started in kindergarten in 2001.

36 Allegation of Abuse by Case Worker: On or about 23 January 2001 Mr and Mrs CE notified the Department that C1 had told them he had been abused by Department caseworker, Karen Clout who accompanied the children on access visits to their natural mother. Department employee, Lynne Pagan, interviewed C1 about this allegation. In a report dated 19 February 2001 Ms Pagan concluded, “It was not my impression that C1 had been coached in the sense of describing events that did not happen…There are no obvious discrepancies between the information C1 disclosed at the interview and what the carers said he had told them.” The Department, following receipt of Ms Pagan’s final report, decided to take no action in relation to the allegation.

Decision to terminate custody

37 On the morning of 22 March 2001, S, Mrs CE’s sister, made a statement to police at the Wetherill Park Police Station alleging that Mr CE had subjected C1 to abuse. The Green Valley Police Station issued a formal notification of the report to the Department at about 4 pm that afternoon.

The Text of the Police Record 22 March 2001

38 At this point we set out the material text of the police record made 22 March 2001 containing S’s allegations. [Errors of syntax and expression have not been changed.]

‘I am 26 years of age.

At 11.00am on Wednesday the 21st of March 2001 I was at [name deleted] where I live with my sister Mrs CE, brother inlaw Mr CE, thier daughter D 13 years of age and thier two foster children C1 5 years old and C2 4 years old. I was in bed and heard Mr CE saying to C1, “your a looser, you will always be a looser. There is only one boss in this house.” I got up five or ten minutes later and walked out into the kitchen and saw C1 kneeling on the kitchen floor in his underpants and a t-shirt with his hands up behind his head and he was crying neither Mr or Mrs CE where anywhere to be seen. C1 would usually be at school at this time, I didn’t say anything to him because if he talks when he is being punished he gets in more trouble and I didn’t want to make things worse. I felt awful and just wanted to pick him up. C1 is always in trouble and it is not unusual for him to be punished in this way. I have in the past seen Mr CE punish C1 by making him stand in the corner with his arms held out horizontal to the ground and his legs spread and sometimes with his hands behind his head like it was in the kitchen.

I saw my sister was sitting outside having a smoke at a table just outside the door I went to the door to see what the weather was like outside and then Mr CE walked into the kitchen and said to C1, “OK, now get up and go kneel out there.” Mr CE pointed at the concrete outside. C1 got up from the kitchen floor and walked out to where he was told and knelt down on the concrete and put his hands up behind his head again. I walked away because I didn’t like to see C1 like that.

Some time later I went to the back door and saw that Mr CE had put C1 in the pool and made him swim laps which is another way that C1 gets punished. I have seen on one other occasion when Mr CE put C1 in the pool a couple of weeks ago and made him swim laps. If C1 slowed down Mr CE would get a long foam floaty and hit the water to make him swim faster. I went away and came back a couple of minutes later and saw that C1 was holding onto the side of the pool crying. I couldn’t hear what Mr CE was saying to C1 but by the way he was speaking I knew that C1 was getting in trouble for stopping his laps. I walked away again.

I think I was in my room and walking to the bathroom when I heard Mr CE in the kitchen saying to C1, “You are a looser, now come on.” I heard the television set up really loud and heard a door slam. I was trying to listen to see if Mr CE was going to hit him or something but could not hear over the television. All of a sudden I heard the television volume turn down and realised that I could not hear C1 crying anymore. I thought that I had better go and check on him so I walked into the corridor and saw into Mr and Mrs CE’s room. The door was open and I could see C1 was standing on standing on two stool that were spread apart far enough so that to stand on them he had to do the splits, he was wearing a t-shirt and underpants. Mr CE had him facing the mirrored wardrobe. The thing that scared me the most is that C1 had what seemed to be a rolled up handkerchief across his mouth and tied up behind his head like a gag. I was completely shocked. I don’t think that Mr CE saw me, because if he did he would have closed that door.

Went back to my room to get my bag and my mobile phone. My sister must have seen the look on my face because she walked really fast up to the room and stand in the doorway of thier room. I noticed that was now off the stools, but I couldn’t seen anything else. I walked back past their room towards the kitchen and as I went past my sister said in spanish, “You gotta be careful.” and then in English, “You know?” to Mr CE. I kept walking into the kitchen to get something out of the fridge.

I went back to my room got my bags. I went outside to throw some rubbish in the bin. As I was going out I saw Mr CE walking out to his office and my sister came after me saying, “What is wrong? Did your rat die?”

I said, “No.” and walked out.

I came back to the house about 10.00pm that night and told them that I was staying over at my friend’s house.

About 8.00am on Thursday the 22nd of March 2001 I went back home and when inside. The dogs started barking and my sister got upset. I went into my room and recharged my phone. I saw C1 in the bathroom. He was dressed ready for school and was brushing his teeth. I went to the kitchen and Mr CE came into the kitchen from the lounge room. He was saying something but I wasn’t listening because I thought that he was talking to my sister. He was actually saying something to me about parting hard. I had no idea about what he was saying. He started walking towards my room. My sister followed him and was saying, “What are you going to do? Don’t do anything stupid.” I followed him and as I got to the door he my handbag and an overnight bag at me. He said, “this is my house.” He picked up the radio and made like he was going to throw it at me. I said, “Go ahead you dickhead that way I can call the police.” He stopped and stared at me. I said, “And don’t think that I didn’t see what you did to C1 yesterday.” My sister said to me, “What are you talking about?” I said, “That’s not normal. Dad never did anything like that to us.” She said, “There is nothing wrong with it. I have done it too.” I didn’t believe her, she would never do anything like that. I grabbed some jackets and waked out. I was just unlocking the screen door and Mr CE grabbed my right wrist and twisted my arm up behind my back. He took my keys and let me go. He removed my clublock key and my car key and threw them on the ground then kicked them. I picked up my keys and my sister said, “If they take the kids off me, I’ll kill you.” Mr CE said, “Go run and tell the police. I’m sick of your threats that you never carry out. Go I don’t care.”

I got into my car and drove strait to Wetherill Park Police Station to make a report.’

Police Report to Department’s Helpline

39 The Department’s log shows that it received the report at 3.53 pm on 22 March 2001. The following is a summary taken from the relevant COPS report: “At about 11 am on the morning of 21 March 2001 S observed C1 kneeling in the kitchen with his hand behind his head, crying. Later she observed that C1 had been ordered to leave the kitchen and kneel on the cement. She later heard C1 being forced to swim laps. A short time later she observed C1 standing on two stools (one foot on each), which were far enough apart so that the child could only just stand with his legs apart. He was dressed in t-shirt and underpants facing the mirrored wardrobe. She then noticed that the child had a gag in his mouth preventing him from crying.”

Response to Notification

40 The Helpline report was referred to Ms Leonie Booth, at the time case manager, Fairfield District Office, of the Department. Ms Booth arranged with C1’s school [name deleted] to interview C1 at 1.00 pm on 23 March during the lunch recess. She had spoken to S by mobile phone prior to conducting the interview.

41 In preparation for the interview she also spoke with the Principal of C1’s school, T2, who referred to concerns about C1’s behaviour at school, reported to her by T1, C1’s teacher. T1 had said she was frequently questioned by Mr and Mrs CE about C1’s behaviour and had considered this interest somewhat ‘obsessive’. T2 and T1 furnished the Department with statements in these regards dated 27 March 2001 and placed in evidence.

42 The interview took place in the Principal’s office. Present at the interview were Department caseworker, Andrea Morua, Police Officer, Mark Conroy and T1. The interview was not taped nor were any contemporaneous notes made. Ms Booth wrote it up at about 7.00 pm that evening.

The Text of the Record of Interview

43 An abridged text of the record of interview made by Ms Booth follows.

Q: If you are naughty at home can you tell me what happens? A: I have to go into the corner.

Q: Why are you sent to corner? A: Time out.

Q: When you are in the corner are you standing or sitting? A: Standing

Q: Are you standing on you feet or on your knees? A: Feet, sometimes knees.

Q: Are your arms like this or this – (I demonstrated my arms in front of my body and then by my side whilst kneeling). A: Like this (C1 put his arms straight out in front of him.)

Q: C1 where are you in the house when you are in time out? A: In the corner.

Q: Where in the house are you? A: I don’t know.

Q: C1 if you are naughty does anything else happen? A: (no verbal response, shrugged shoulders, head down.)

Class teacher, T1 said, the following: “C1 remember when we all talked in class about feelings and feeling safe, it's important that you tell Leonie what happens at home, ok?” A: Yes

Q: C1 if you’re naughty at home do you have to do anything? A: Yes, swim in the pool.

Q: What do you mean? A: Swim.

Q: Who tells you to swim? A: My dad.

Q: How do you swim? A: Up.

Q: C1, do you have any pool toys? A: Yes.

Q: Are the pool toys long? A: Yeah, I have a purple one and C2 has a yellow one and my sister has one.

Q: C1, does anything happen to the pool toy when you've been naughty? A: Yes.

Q: Can you tell me what happens? A: No verbal response – (shrugged).

Q: Does anyone hit the water with it? A: Yes and my back.

Q: Who hits the water and your back? A: My dad.

Q: C1 do you swim for a long time or a little time? A: Long.

Q: C1 if you are naughty does anything else happen? A: Yes.

Q: C1 can you tell me what else happens? A: Can we go to class soon?

Q: C1 I don't have many more things to ask you and then you can go to the class, is that ok? A: Yeah – (nodded).

Q: Do you have any stools at home? A: Bench chairs.

Q: Do you sit or stand on them? A: Stand.

Q: C1 do you remember when you had to stand on the bench chairs? A: Yes. (He looked at the class teacher and then his hands went to his mouth, biting nail.) Yes.

Q: Where were you in the house? A: In dad's room.

Q: C1 how did you stand? (I then demonstrated standing with legs together and apart.) He said: Like that. (Indicating when I stood with legs apart.)

Q: C1 how many bench chairs did you stand on? A: Two.

Q: C1 do you know why you had to stand on the bench chairs? A: I was naughty.

Q: C1 did you have anything in your mouth? A: Yes. (I said: Can you tell me what it was? He said: a sock.)

Q: Do you know whose sock was in your mouth? A: My dad's.

Q: Was your dad in the room when you stood on the bench chairs? A: Yes, can I go to class now?

Action

44 Ms Booth was satisfied that C1’s answers at interview corroborated the allegations contained in the Helpline report in material respects. She returned to the Fairfield office to discuss the case with Mr Greg Skelly, Manager, Client Services, Fairfield District Office. Her evidence is that they made a joint decision to remove both boys.

45 Mr and Mrs CE were advised of the decision that afternoon at about 3.30 pm when they came to school to pick C1 up to take him home.

46 Both boys were then taken to the F1 family where they have remained ever since.

47 Interview of Mr and Mrs CE: The Department interviewed Mr and Mrs CE in relation to the allegations made by S only on 18 April 2001. This, in our opinion, was unsatisfactory. Given the seriousness of the allegations, the desirability of fully assessing them promptly and out of considerations of basic humanity in traumatic circumstances, the Department should have moved much more quickly to conduct this interview. The evidence is that Mr and Mrs CE were prepared to be interviewed promptly, but the Department, due to various difficulties, delayed the interview. Greater urgency should have been shown. Moreover, Mr and Mrs CE only received a copy of the police report of 22 March 2001 recording S’s statement, when it was tendered in evidence at the commencement of the proceedings.

48 Mr and Mrs CE, rightly in our view, have objected to the failure of the Department to promptly notify them in writing of the statutory decision to terminate custody, and to comply with the various requirements of the Tribunal Act that apply to the making of reviewable statutory decisions. These include the provision of reasons in writing, and information as to their rights of internal and external review. These obligations on administrators are clearly spelt out in ss 47-53 of the Tribunal Act.

49 The Appeal Panel will refer a copy of these reasons to the Minister, the Director General, the Community Services Commission and the Ombudsman, with the recommendation that urgent steps be taken to assess existing compliance practices so as to ensure that the statutory rights accorded citizens affected by reviewable decisions are implemented.

50 Application for Review of Decision: Mr and Mrs CE lodged their application for review of the decision on 17 May 2001.

51 Grounds for Termination: The Department issued its written reasons for decision on 24 May 2001. We will not set out those reasons here in full. It is sufficient to refer to the evidence given at hearing by the District Manager Mr Skelly. He gave the following reasons for the decision.

1. The disclosures made by C1 at the interview of 23 March;

2. The consistency of those disclosures with what S had reported to police;

3. The lack of confidence on the part of the Department that Mr and Mrs CE would be able to work co-operatively with the Department.

52 It is accepted that the only reasons for going as far as to remove the children at that time were reasons 1 and 2. The Department had considered the allegation sufficiently substantiated to justify immediate action on those grounds.

53 The Department had no prior adverse report against Mr and Mrs CE alleging any form of abuse. The evidence pointed the other way. The school reports for C1 were positive. The health assessments were positive. The family material, photographs and the like, depicted them in a variety of happy and loving situations.

Assessment of Decision

54 As the Panel sees the task before it, there are two areas of inquiry. One is the assessment of the reasons given by the Department for its decision. If that assessment gives rise to the conclusion that the Department did not make the correct and preferable decision on 23 March 2001, a second inquiry is necessary. That relates to whether it would be in the best interests of the children to remove them from their present custody and restore them to Mr and Mrs CE. There may be a question as to whether the Tribunal has any jurisdiction to enter into the second inquiry.

The Interview

55 Ms Booth said in evidence that she was broadly familiar with the case of C1 and C2, having supervised the District Officer responsible for the children for the greater part of 2000.

56 The preliminary enquiries made by Ms Booth prior to the Interview: Mr CE denied requesting permission from the teacher to observe C1 in the classroom. According to him, his only meeting with T2 was to seek permission to give C1 some Panadol. Mrs CE denied repeatedly questioning the school about C1’s behaviour and claimed she was in no position to do so as on the days she collected C1 she was generally in a rush en route to pick up D who was at another school.

57 Criticisms of Interview: A number of criticisms were made during the hearing of the methods adopted by Ms Booth. Ms Booth’s evidence was that her interview procedure was in line with usual Departmental practice. She stated that prior to the interview she decided to use a direct line style of questioning as she was aware that C1 had some difficulty remaining focused in an interview.

58 Clinical psychologists, Dr Christopher Lennings (called by Mr and Mrs CE) and Mr Peter Champion (called by the Department) gave expert evidence by way of written reports, supplemented by oral evidence. Neither interviewed C1 and C2 or any parties involved in the proceedings, instead basing their observations and conclusions on extensive documentary material. It is regrettable that because of the order in which the evidence was presented at the original hearing, the explanations that Ms Booth gave as to her choices in relation to the method of questioning were not put to these experts who had given evidence earlier in the proceedings and were not recalled.

59 Dr Lennings considered that in light of C1’s history of failed placements any interview of him is bound to be problematic.

60 He cautions against interpreting C1’s comments without taking into account that from past experience, C1 is likely to be well aware this is not just a “friendly chat”. He comments, “... the unfortunate intervention of the principal sternly warning C1 to tell the truth [midway through the interview] would have placed the child under considerable stress”.

61 Dr Lennings states that his practice is to use an indirect narrative interview style avoiding direct questions which in his view are inappropriate for children of C1’s age. Direct questions, he explains, usually contain information to which the interviewee may respond yes, or no, or provide the answer. In short, his view is that the problem with this interview style, particularly where the question provides only single type responses or forced choices (as he asserts was largely the case with Ms Booth’s questions) is that sometimes the hypothesis put to the child may be responsible for the answer. In evidence he pointed to research, which shows that compliance with direct questioning is age related - the younger the child, the greater the likely compliance.

62 He states that the record of interview reveals that C1 does not actually make any allegations but merely responds to allegations put to him. In addition, claims Dr Lennings, the interview suffers from Ms Booth’s failure to test any of the hypotheses put to C1 by asking inconsistent questions.

63 In cross-examination, Dr Lennings disagreed that the interview style adopted by Ms Booth was appropriate given C1’s experience of being subjected to repeated interviews. According to him it is precisely because C1 was so sensitised that this interview method was inappropriate.

64 He concludes in his report, “There is a chance that the direct questioning style of the interview, the failure to use free recall as much as possible, the lack of checking the information through further questioning and the use of authority as a subtle coercive element in the interview may have affected the validity of the information obtained. I am not in a position to say that the data collected at this interview is misleading. However, on the basis of the interview I am not able to say that the data collected is reliable, either.”

65 Mr Champion said that it is important that with very young children such as C1 questions are asked in a way that allows the child to provide information rather than being forced to respond to questions in a particular way. He said that the style of interviewing used by Ms Booth “was more directional than I would have used.”

66 Mr and Mrs CE’s Evidence as to their Methods of Discipline: Mr CE unequivocally denied ever subjecting C1 to the forms of punishment alleged by S. According to him the only form of punishment used by him in respect of either boy was time out in the “silly corner”. According to Mr and Mrs CE when C1 first came to live with them he was somewhat difficult; he was often angry and would frequently break things and throw tantrums. Both were of the view that he had calmed down considerably since joining their family in August 2000.

67 Mrs CE claimed that she was the disciplinarian in the family, not her husband. According to Mr and Mrs CE, the primary disciplinary tool used was “time out” for short periods (up to five minutes) in the “silly corner,” a corner of the living room. Mr and Mrs CE deny that the children were required to kneel (or stand) for extended periods with arms outstretched. Mrs CE claimed C1 was sent to the corner at most, three or four times a week. Mrs CE claimed C1 and C2 were compliant children and would not leave the silly corner until after they were given permission to do so.

68 Mrs CE said she had never seen her husband subject either child to the punishment described by S. Indeed, she stated that the allegation that C1 had been forced to swim laps of the family pool was simply implausible: while C1 was competent in the water he could not swim laps and in any event had been kept out of the pool since March 18 on account of illness.

69 Mr and Mrs CE both gave evidence that the boys were in the habit of standing up on the bar stools kept in their bedroom. They said the children would use the stools to reach the wardrobe to search for small gifts kept there for them.

70 Mrs CE and S’s father, X (80 years of age at the time) gave evidence that on his regular visits to Mr and Mrs CE’s household he saw no evidence of his son-in-law subjecting C1 or C2 to the abuse as alleged by S. According to him S might have invented these allegations to obtain attention.

71 Relationship between Mr and Mrs CE and S: It is not in issue that S lived relatively separately from the rest of the household, and at this time was heavily involved in her studies and part time job. She agreed with her sister and brother-in-law that she did not have a lot to do with C1 and C2 after they came to live at the house.

72 Mrs CE depicted her sister as difficult, often in a bad mood, prone to exaggerate and prone to selfish behaviour. She suggested that her sister was somewhat unstable pointing to the fact that for the past seven years she had been enrolled in a three-year degree and had failed all but four subjects. (In contrast Mr and Mrs CE had obtained between them a number of university degrees during the 1990s.)

73 According to S her relationship with her brother-in-law was strained; she tolerated him for her sister’s sake, a view broadly shared by Mrs CE. S claimed to have moved back with Mr and Mrs CE to assist them financially. She claimed she gave her entire Austudy allowance of about $400 a fortnight to her sister. This is denied by Mr and Mrs CE who said S made no financial contribution to the household. In cross-examination S said that she made the contribution for the whole of 1999.

Evidence as to the Events of 21 and 22 March 2001

74 Often there is no independent eye-witness to conduct of concern and the first hint of a possible problem comes from something said by the child to a trusted person. The child may then be referred to a professionally qualified interviewer. In these cases the interview is critical. In this case the report was made by an adult, S, who claims to have witnessed the abusive conduct. Because of the difficulties associated with the interview of C1, closer attention than might otherwise be necessary has to be given to the question of S’s veracity.

75 In addition to the police report, the Department filed an affidavit made by S on 12 July 2001. She noted at the beginning of the affidavit that its contents were based on the police record made on 22 March. The body of the statement reiterated verbatim the police record, with some additional paragraphs at the end.

76 There are two additional allegations in the statement. One refers to C2 being forced to kneel on pebblecrete for extended periods. The other allegation was that C1 was often forced to swim laps as a punishment at odd hours. She added in oral evidence, “C1 was always crying. Every day he was in trouble …the children had no quality of life that I could see.”

77 In both the police report and the Statement she says that she woke up at 11 am, and the events that caused her concern took place after that time. But at the commencement of her examination-in-chief, S amended the time from 11 am to 9 am.

78 9-11 am 21 March 2001: Subject to the above amendment, S’s evidence was consistent with her original report to the police and her later affidavit.

79 S said that after waking and hearing the first ‘loser’ remark by Mr CE, she had called Kmart Auto [name deleted] from Mr and Mrs CE’s landline and booked her car in for repairs. A copy of the invoice and job sheet issued by Kmart for work performed on S’s car (Exhibit I) nominates a “book in time” of March 21, 11:00 am. According to S, prior to March 21 her car had mechanical problems. The NRMA logs (Exhibit N) confirm that service calls had been made to them on 19 and 20 March.

80 S said she later used her mobile phone to call friends from her bedroom during the course of the morning. She claims to have left Mr and Mrs CE’s shortly before 11 am taking her car directly to Kmart Auto, which she estimates to be about a 10-minute drive from Mr and Mrs CE’s home. S said she was so distressed from the events of March 21 that she returned home only briefly that night at about 10 pm to collect some possessions before leaving again to spend the night with a friend.

81 The evidence of both Mr and Mrs CE stands in direct conflict with S’s evidence. Mr and Mrs CE deny that S was present at their home at any time after 6 am on the morning of 21 March. Mrs CE’s evidence was that S left home at 7.50 pm. Mr CE said she had left home before he took D to school at 8.30 am. They agree with S that she did return to the house until about 10 or 10.30 pm.

82 Mr CE’s evidence is that between 9 am and noon, he was in his office, a converted garage adjacent to the house; for the first half hour he attended to paper work and from 9.30 am onwards met with a client. According to Mrs CE she spent the morning with C1 and C2 while they watched television and played with toys in the living room. They remained indoors as it was cold. She claims they were visited just after 9.30 am by her father, X, who stayed with her and the children until her husband emerged from his meeting at about midday. She said she did not see her husband until his consultation concluded.

83 X said he dropped in on his daughter, Mrs CE, at about 9.40 am staying until about 1.30 pm. S was not present in the house. He confirmed that his son-in-law was in his office at the time of his arrival until he emerged at about midday. In cross-examination he explained that he was confident his recollection of the morning was clear as it was the ‘day before’ the removal of the children. The ‘day before’ was 22, not 21 March. His affidavit says that he was at the house from 9.40 am to 1.30 pm on 21 March, and from 11.00 am on 22 March.

84 In cross-examination, S denied seeing her father in the house around 9.40 am or while she was there on the morning of 21 March 2001. (In evidence in chief the transcript records her as saying ‘yes’ to the question of whether her father was there. We are satisfied that the answer in cross-examination represents her evidence in this matter.)

85 According to Mr and Mrs CE, C1 had been kept home from school that day as he had a slight cold. Mrs CE denied her sister’s claim that she spent part of the morning outside smoking. While she agreed that she had once been a regular smoker, she said that at the relevant time she had given up smoking.

86 In their affidavits, Mr and Mrs CE fail to give any account of the events of 21 March 2001. While the Department should, in our view, have interviewed them much earlier and given them a detailed account of its reasons for action, we are satisfied that Ms Booth did inform them of the general nature of the allegations at their meeting at the school on 23 March 2001. For example, Mrs CE refers in her affidavit to the specific allegation that C1 had been made to stand on stools with a sock in his mouth. Mrs CE also said that she said to Ms Booth at the time that allegations came from her sister. It is not clear whether at that point Mr and Mrs CE knew that the allegations related to events said to have occurred on 21 March. If there was any doubt as to the nature of the allegations and their date, that was made clear to them at the belated interview that occurred on 18 April.

87 By the time that Mr and Mrs CE came to file their affidavits they had before them an affidavit from Ms Booth, as well as extensive Departmental material. It is true, and we consider unsatisfactory, that the material did not include the police record of S’s allegations made 22 March. Nonetheless it would, we consider, have been clear to Mr and Mrs CE what the substance of the case against them was, and what day was in question.

88 This is not a case where the alleged abusers say that the witness misunderstood their conduct. Their case rests on the proposition that S was not present at the house, and consequently she must have manufactured her account of events that day. Mr and Mrs CE attributed various motives to S as to why she might have manufactured the evidence. Perhaps, most importantly, her reaction to the altercation that occurred the next day on the morning of 22 March when Mr CE said he ordered her to leave the house for good.

89 At the original hearing, while Mr and Mrs CE asserted that S had ‘left’ the house early, neither of them recounted making any direct observation of that occurring.

90 S said at the original hearing that she made a landline (Telstra) call and mobile (Vodafone) calls from her bedroom between 9 and 10 am. She said then that the one landline call was made at 9 am to Kmart Auto on the home phone. She was able to make it from her bedroom as the night before she had brought up one of the two cordless handsets to her bedroom.

91 The telephone records produced at the original hearing from Vodafone supported her evidence. There is one mobile phone call recorded at 9.06 am. There are two others recorded at 10.16 and 10.27 am. But the mobile phone records can not provide conclusive evidence as to her location when these calls were made.

92 At the hearing there was extensive cross-examination of S as to whether she made the 9.00 am landline call. The Telstra records were not in evidence.

93 On review of the original hearing transcript, the Appeal Panel directed that a summons be issued for their production, and that a further hearing be convened to consider the information produced. The information obtained showed that a call had been made at the time claimed by S from the home phone number at 9.00 am. The number called was that of Kmart Auto. The parties were recalled for a further hearing in relation to this evidence (the resumed hearing).

94 The resumed hearing took place on 19 December.

95 At the resumed hearing, Mr and Mrs CE each gave evidence. Neither conceded that S may have been at home on the morning of 21 March. The most they would acknowledge is that someone made the call on their phone.

96 On this occasion they gave for the first time detail in support of their evidence that S had left the house early that morning. Both described her as being dressed to go out between 7 and 8 am, and having left by about 8 am to go to university. (She was a university student during the day and worked part-time in the evenings.)

97 Though pressed, neither gave evidence that they saw her leave through the front door. Both surmised that she did. They based their conclusions on having seen her dressed in the usual way, carrying her bag in the usual way, and having seen her go by in the hall-way that separates the open plan living and kitchen areas, where they were, from the bedroom area of the house. They reported no conversation with her.

98 Mr and Mrs CE and X said at the original hearing that Mr CE was in the office all that morning from 9.30 am, seeing a client to whom he was providing counselling services. X said the client was a man. Mr and Mrs CE said the client was a woman; reiterating that evidence at the resumed hearing. That person was not identified by name in the proceedings and was not called to give evidence.

99 If Mr and Mrs CE’s description of S’s movements is correct, it is highly improbable that S could have known, as her police statement records, that C1 had been kept home from school that day. According to Mr and Mrs CE she had left the house long before the usual time that C1 was taken to school. S could not have guessed that that from, say, having observed C1 being off school the previous day. He was at school on the 20th, though he had been off school on the 19th.

100 Moreover, it is highly improbable that S would have gone to university early that day. She normally used her car. We accept S’s evidence that on the morning of the 21st her car was not able to be driven any distance. On the evening of the 20th the car had overheated, she had called the NRMA and brought it home. The NRMA log supports her evidence, showing a service attendance at 5.50 pm. We accept her evidence that as the thermostat had failed, the NRMA had advised her not to drive the car any distance and to get it repaired immediately. The Kmart Auto log shows that the car was booked in for 11 am that morning and booked out at 12 noon.

101 The only explanation that Mrs CE could offer for the possibility that S was home and had made the call to Kmart Auto was that she had come back unknown to them. She agreed that she did not hear the dogs bark loudly, as they always did, when someone came to the house. She said the only time she heard the dogs bark that morning was when the client came to see her husband.

102 At the resumed hearing, Mrs CE also raised the possibility that as a cordless phone has a wide radius of operation S may have taken the cordless phone away from the house and may have been up to a kilometre away from the house when the call was made.

103 S’s evidence as to her movements that morning is inherently plausible. Her car problem was a serious one. It needed to be attended to immediately. The telephone records all corroborate her account. We are satisfied that she was a witness of truth as to her activities on the morning of the 21st. We reject Mr and Mrs CE’s account of her whereabouts that morning as implausible, and their evidence raises concerns for us as to the truthfulness of their evidence in other respects.

104 Mr and Mrs CE’s evidence of their observations at the resumed hearing was contrived, as we see it, as a way to meet the damning evidence of the Kmart call. It firmly locates S at or near the home. Following the production of these records, Mr and Mrs CE for the first time gave detailed evidence in support of their assertion that she had ‘left’ the house that morning.

105 At the resumed hearing, Mr CE sought to draw some support from the home telephone records for his version of the subsequent events of the morning. There are two lines. One has its primary point in the garage/office area. The other has its primary point in the kitchen. Each has a cordless handset. It was the kitchen handset that S had taken to her bedroom. The records showed two usages of the office number that morning occupying most of the time between 9.00 am and 9.30 am connected to the internet service provider. Mr CE said that after he came back from dropping off D for school he had been doing some research on the internet.

106 One witness who might have assisted in resolving the disputes as to what occurred between 9 am and 11 am that morning would have been the client who was said to have attended on Mr CE that morning. At the original hearing the Tribunal ruled in favour of an application from Mr CE’s solicitor (and opposed by counsel for the Department) that no evidence be given as to the client’s identity on the basis that it was important that it be kept strictly confidential. After hearing the views of counsel for the parties, the Appeal Panel decided not to revisit that ruling, but given the possibility that the client could have shed light on the events of that morning, possibly important evidence is not available to be considered. We do not however draw any adverse inference against Mr and Mrs CE in that regard.

107 S said that she left the house about 10.50 am, and met a friend at Fairfield Shopping Centre. Her car was ready for pick up at noon. She spent the rest of the afternoon with friends, W1 and W2. She said she told them about what she had seen that morning and of her concerns for the children. W1 and W2 were not called. She said that she had in mind making an anonymous phone call to the police and discussed that with them.

108 Morning of 22 March 2001: The next morning S returned to the house about 8 am. Mr and Mrs CE were getting the children ready for school and having breakfast. Her arrival caused the two dogs to bark. It is not in issue that an argument occurred that morning between Mr CE and S.

109 There are diametrically opposed views of what occurred. S’s evidence was consistent with her statement to the police and the subsequent affidavit. Mr and Mrs CE deny her version and say that S was the one making the noise and doing the shouting. They say she was in a bad mood; being very loud and banging doors, and saying “shut up shut up” at the top of her voice.

110 Mr CE said he asked S to settle down saying, “S while you are out partying all night we have a young family to take care of.” S denied she had been out partying all night but claimed she had merely stayed over at a friend’s house.

111 S said that she had gone to her room to grab some possessions and that Mr CE had followed her throwing an overnight bag and handbag at her; to which she said “go ahead you dickhead that way I can call the police …Don’t think I didn’t see what you did to C1 yesterday.” S claimed that as she left Mr CE grabbed her wrist and twisted her arm up her back. Mr CE denies this although he concedes grabbing her house keys. In cross-examination Mr CE repeatedly denied losing his temper but after being pressed ultimately conceded that he had been angry with his sister-in-law.

112 Mr and Mrs CE claim that they suggested S go for a drive to settle down; she refused threatening, “I can have the children taken away from you.”

113 Mr and Mrs CE called the Green Valley police station to complain about S’s conduct. Sergeant Robey, who was based at Green Valley Police Station, attended the home. His evidence was that he did so at about 10 am on 22 March 2001. He said Mr and Mrs CE told him they were concerned for S who had driven away apparently in an unstable condition. He gave evidence that he observed a young child at the house who appeared to be fine.

114 At the same time S was at the Wetherill Park Police Station making her report. In her evidence S indicated that the previous day she had discussed with her friends the possibility of making an anonymous report to the Police about Mr CE’s conduct. Following the argument and Mr CE’s actions, she decided to report him (and her sister) directly.

115 Issues of Credibility: Mr and Mrs CE’s case that S had made up her evidence relied on two bases – one she was not there on the morning in question; and two that she was a person of such a character that she could not be trusted. We have rejected the first challenge to S’s evidence.

116 The second basis involved a general attack on her character, and the suggestion that she had a motive to damage Mr CE because of the poor relations that existed between them, heightened dramatically by the events of the morning of 22 March where they said they were the innocent parties. S acknowledged that she had a distant relationship with Mr CE.

117 Her relationship with her sister and her father was a warmer one. The two sisters were clearly on good terms. The relationship with Mr CE was not so poor as to have made it impossible for S to live under the same roof with him and her sister over many years. S had lived with Mr and Mrs CE on several occasions, adding up to several years, since her mother died when she was 14. It is clear that both Mr and Mrs CE felt that they had a duty to assist S through the difficult years that she had faced since losing her mother.

118 She was depicted by them as likely to be unreliable in her testimony because of her life history over the years since she lost her mother; and that her dislike for Mr CE was so intense as to provide a motive for making up the allegations against him. S acknowledged many of the difficulties in her past life that had been mentioned by Mr and Mrs CE, but noted that she had held her regular part-time job with the pathology lab for six years, and had recently been promoted by her employer to a permanent part-time position. She also said that while she had had a poor academic record in her course for the Science degree in the past, it was now improving.

119 As to the question of motive, we are not satisfied from the account given by either Mr and Mrs CE or S that the relationship as at March 2001 was so bad as to be likely on its own to provide a motive for S to make very grave unfounded allegations. S had lived with Mr and Mrs CE for long periods on several occasions. She had lived at the house since 1999. The altercation on the morning of the 22nd was a serious one. The allegations which followed not only implicated Mr CE but also her sister.

120 Both S and Mrs CE spoke of them having a warm relationship. Had S been set on wounding Mr CE, it is likely, we consider that she would have sought not to implicate her sister in her account. She implicated her sister in three ways - being present when C1 was forced to kneel on the pebblecrete surround and doing nothing, in her conversations with her sister before she left the house that morning and in the conversation with her sister the next morning. We also note that Ms Booth, in cross-examination, said that in her phone conversation with S on the 23rd she found her upset but not antagonistic.

121 On the other hand Mr CE’s evidence on a range of matters was systematically tested by counsel and was found wanting. None of these matters in isolation perhaps has any great significance. But overall they show Mr CE to be a person who is less than candid and given to exaggeration of events in a way that puts him in a better light.

122 There were a number of discrepancies in his curriculum vitae and the way in which he advertised himself to the world. We give some examples.

123 He had substantial academic qualifications, importantly a Master’s degree in Forensic Psychology. He was shown consistently to describe himself as a ‘psychologist’ but he agreed under questioning that he did not hold a professional registration as a psychologist. His time with some employers was exaggerated as to its length and the nature of duties performed.

124 The reasons for his leaving a job with the Migrant Resources Centre, Fairfield were the subject of close examination. He told Ms Regan, the Department officer who did the primary assessment report of the family leading to the placement, that he had resigned so that he could spend more time with the family and to allow Mrs CE to return to work as a high school teacher full time.

125 It transpired in evidence that he had left the Centre on terms after proceedings in the Industrial Relations Commission where he had challenged their dismissal of him on various grounds including the fact that he was the subject of a sexual harassment allegation. He asserted in evidence that the allegation had been found on investigation, not proven. The position reflected in the recitals in the deed of settlement was that the investigation had not been concluded, and was described as ‘inconclusive.’ He acknowledged eventually that this was not the same as a finding clearing him.

126 He did not give any of this information to Ms Regan for her assessment report.

127 More importantly, Mr Skelly referred to the lack of any reference to S in the report prepared by Ms Regan. He said that it was essential when making a care decision to have a complete account of the members of the household. Mr Skelly said that he had been informed by his officers and Ms Regan that they were not aware that a third adult lived at the house. Mr CE was closely questioned on what he had told Ms Regan in regard to S’s presence in the household.

128 Mr CE said on several occasions in his evidence that he had given this information. He referred in particular to a home inspection where he had shown Ms Regan the bedroom of S. He said he told her that she keeps her things here and ‘comes and goes’. He did not put his version of what he said to Ms Regan any higher than that.

129 Accepting for the present that he did tell Ms Regan that, these words nonetheless clearly diminish the significance of her connection with the household. We find that at this time S was a permanent resident of the household, and that had been the case since at least 1999. She did not ‘come and go’. Her evidence, which we accept, was that at that time she might be away overnight about once a month; usually after going out late. Even the explanation Mr CE says he gave to Ms Regan was an embellishment of the real situation on a significant matter, done, we consider, in such a way as to improve his chances of being accepted for a placement.

130 Moreover, while we did not have the benefit of oral evidence directly from Ms Regan, we consider it inherently unlikely that experienced social workers would not have questioned Mr CE on such a fundamental matter as the number of adults resident in the home and that any answers given by Mr CE would have been omitted. It is noteworthy that the Regan report canvasses in detail D’s circumstances and refers to friends of the family who have regular contact with the household.

131 Consequently for the above reasons we are of the view that little weight can be placed on the accuracy of the evidence given by Mr CE in these proceedings.

132 We are satisfied that S is a credible witness, and that significant doubts as to Mr CE’s general credibility have been raised.

The Adequacy of the Interview with C1

133 As noted, Ms Booth’s evidence was that she deliberately adopted the technique referred to as the ‘direct line’ method. This method is distinguishable from asking leading questions, but it possesses the difficulty of tending to suggest the answer or limit possible answers to a limited range. In evidence, she accepted that some of the interview questions could be characterised as leading.

134 Ms Booth explained that she had adopted this method because of past experience interviewing C1 and because of knowledge of his behaviour patterns. She was concerned that C1 would lose concentration quickly and it was therefore necessary to adopt a relatively quick method of questioning. As to the taking of the notes, it was her evidence and that of Ms Morua that they had to depart from usual practice because it was clear the C1 was becoming focused on the note taking. This is a not uncommon problem, they said, in child interviewing. As to T1, they said that she came to the interview as C1’s support person.

135 Ms Booth said, and Mr Skelly confirmed, that it is usual practice to take notes of interviews and to write them up afterwards. Ms Booth said that tape recorders were not used unless interviews connected with possible criminal charges were being conducted.

136 In this case Ms Booth wrote up her notes about 5 hours after the interview, and she conceded that she may not have recorded all the questions accurately. On the other hand T1 and Ms Morua did endorse the interview as accurate, and Ms Booth considered it was.

137 Conclusions: We accept the expert evidence that the interviewing technique because of its failure to adopt the open questioning technique was flawed. But we also note that neither expert went so far as to suggest that the answers had no value. Both referred to the ‘sock’ answer as significant. They were satisfied that this answer was a relatively uninfluenced one.

138 Despite the criticisms we are of the view that the interview record remains relevant and of value. Even if much of the interview with C1 were completely to be discounted, his reference to a sock being placed in his mouth remains an answer of value. The answer clearly corroborated the report from S. In any case in our view, the questioning technique was not so flawed as to render the other answers of no significance.

139 (Clearly, it would be highly desirable for the Department to move to a system of contemporaneous exact recording. The technologies today may well allow for that to be done, in a manner that does not give rise to the negative effect of the child being distracted by the technology thereby affecting the quality of the responses.)

Guardian ad Litem

140 The Tribunal appointed Ms Diane Starkey, psychologist, as the guardian ad litem for C1 and C2. She was furnished with all filed material and conducted detailed interviews with a number of persons including the children and Mr and Mrs CE. She presented a long written report to the Tribunal dated 31 July 2001. Much of her report focussed on the question of whether the current placement with Mr and Mrs F1 was preferable to restoring the children to Mr and Mrs CE. Ultimately she favoured restoration of the children. But, for obvious reasons, she was not able to reach any conclusions in relation to the allegations giving rise to the removal. It is not altogether clear what status the report had before the original hearing, and our enquiries of counsel in that regard at the resumed hearing did not clarify the matter.

Adequacy of Current Placement

141 The adequacy of the current placement of the boys with Mr and Mrs F1 received considerable attention at the original hearing. We have doubts whether that issue arises where the decision under review concerns the conduct of the then current carers.

142 Our provisional view is that the only inquiry that the Tribunal should be engaged in is whether the administrator’s grounds for the decision to terminate custody justified such a decision having regard to the paramount interests of the children. Strictly speaking, what occurs to the children after that is outside the proper scope of inquiry. But as much attention was given to this issue at the original hearing we will set out the evidence.

143 Dr Lennings expressed concern as to the approach adopted by the Department on 23 March 2001, even accepting that an allegation of abuse was confirmed by the interview (i.e. the sock incident). He states: “Removal generally is a balance between the likely harm done to a child’s attachment and sense of stability and the likelihood of continuing harm to the child.”

144 On the other hand Mr Peter Champion expressed the view in his first report of 6 July 2001 that if the children were maltreated as alleged, he “would struggle to identify any basis upon which it could be suggested that the subject children be returned to [Mr and Mrs CE’s] care.”

145 However, in a supplementary report also dated 6 July 2001, Mr Champion adverted to the problems and risks for the children attached to the breakdown of a placement. Although he was referring to the placement of the children as at July 2001 with Mr and Mrs F1, and the possibility of access by Mr and Mrs CE to them, the comments were equally applicable, in our view, to an unjustified removal of the children from Mr and Mrs CE (if that were the case).

146 He said:

‘These two children have had some nine foster placements in a relatively short space of time and are now in a new placement. I would argue that it is therefore imperative to have strong regard to anything which might put at risk the current placement the children are in (whether the placement is temporary or long-term), given that the children simply cannot afford yet another placement breakdown….

… The further issue to be considered is whether in fact this is a case where “bonding and attachment” is the pivotal issue; indeed given that the decision to remove the children was reportedly based on allegations of mistreatment, it would be argued that the pivotal issue is the alleged mistreatment, and that even if there was an emotional tie between either of the children and Mr and Mrs CE, the decision as to whether the children would be based primarily on the issue of the alleged mistreatment, not the issue of bonding and attachment per se. In other words, this is a case which is in effect a “child at risk” case, and thus the primary issue to be considered, at least initially, is whether the allegations that the children are at risk, can be substantiated.’

147 Dr Lennings’ opinion was that a better course of action at the time would have been to approach the parents with a view to ascertaining whether the punishments were isolated, involved the use of inappropriate disciplinary techniques and whether they might be amenable to amending their ways. He saw as of critical importance that the bonding that had taken place between the children and the family not be disturbed.

Co-operativeness Issues

148 We noted at the beginning of the reasons that there was a third basis for removing the children relied upon by the Department - the unco-operativeness of Mr and Mrs CE with the agency. Mr Skelly made it clear that this concern would not, on its own, have warranted the action taken at that time. The relationship between Mr and Mrs CE and the Department was in its early stages. The children had been placed with them in August. The Department and the carers are mutually responsible for the welfare of the children. Case management meetings between the Department and the carers are a normal part of the relationship.

149 Mr and Mrs CE had not been co-operative, in the eyes of the Department’s officers, with a number of proposals such as: attendance at the final term of pre-school for the year 2000 pending C1’s entry into kindergarten in 2001; teaching the boys swimming via swimming classes; the parents participating in a structured Positive Parenting program; being flexible and responsive in relation to contact with the natural family and siblings. Mr and Mrs CE, in particular Mr CE, gave explanations at the hearing about the reasonableness of their responses to these proposals, or rejection of the allegations implicit in them (especially re family contact). A series of issues remained unresolved after a meeting held on 5 December 2000 between Mr and Mrs CE and Mr Skelly. But no further follow-up action was taken by the Department.

150 The reason given by Mr Skelly for not pursuing these matters early in 2001 is that by that time a sexual abuse allegation against one of the Department’s staff, Ms Clout, who had regular contact with the boys, was under investigation. C1 had made statements to Mr CE implicating Ms Clout which led him to make a report to the Department. The interview with C1 formed part of the evidence. It was considered by the experts to be a better interview, and consequently more reliable than the one done with C1 on 23 March in relation to the allegations against Mr CE. Mr Skelly considered that it was inappropriate for there to be contact between the Department and Mr and Mrs CE while such an allegation against a staff member was under investigation. (The final report in respect of the Clout allegation recommended no further action.)

151 We do not agree with this view and consider that it would have been better had the Department continued holding case conferences with a view to seeking to resolve differences. We agree that it is vital that there be climate of trust and co-operation between carers and the Department to ensure that the best course is pursued in relation to the welfare of wards, especially those who have significant behavioural difficulties or other dysfunctions or disabilities.

SUMMARY OF FINDINGS

152 It is clear, we consider, that the forms of abuse alleged fell within the category of humiliating or demeaning disciplinary techniques of the kind banned by cl 8 of the Foster Parent Code of Conduct. S made no specific allegations of abuse of C2 in her statement of 22 March 2001. There was a general allegation of abuse of C2 in the past contained in her later affidavit. We accept that if there is reliable evidence of abuse against one child, it follows that any other ward should be removed, especially siblings.

153 The evidence of S, read in conjunction with the record of interview of C1, might not necessarily justify findings that the allegations against Mr CE (and against Mrs CE by implication in that she did nothing to stop the abuse) were proven on the balance of probabilities to a level of comfortable satisfaction (the Briginshaw standard). Nevertheless, we are satisfied that there was evidence of sufficient reliability as to the risk of abuse to justify the Department in taking immediate action.

154 We have found S generally to be a credible witness. Mr CE’s credibility was poor. Mr and Mrs CE’s attacks on S’s credibility failed, especially in relation to the critical question of whether she was at home on the morning of 21 March 2001.

155 We have some reservations as to whether her account should be accepted in its entirety. S referred to six events in her report to the police (the ‘loser’ comment; kneeling in kitchen; kneeling on pebblecrete surround of pool; crying while in pool and holding on to its side; further ‘loser’ comment and TV volume being increased; standing in main bedroom on stools with gag in mouth). We have some doubt as to whether all of these events could have occurred in a relatively limited period, which we place as being between about 9.00 am (when she was waking up) and approximately 10.30 am. There may be some element of reconstruction.

156 We are satisfied that she saw conduct that morning that reasonably led her to believe that C1 was being disciplined in an excessive manner. The event of the greatest concern was the incident where she saw C1 standing on a chair, legs apart in a splits position, with a gag in his mouth. As noted, we are satisfied that the answers given at interview by C1, despite the shortcomings of the questioning technique, were consistent with her account of this incident. (S described the gag as a handkerchief, C1 as a sock, but nothing turns on this difference in our view.)

157 Accordingly we are satisfied that the Department acted appropriately in intervening and removing the children.

158 But the consequential decision to terminate custody may have been more arguable, when account is taken of Dr Lennings’ concerns. No practical attempt was made to assess whether the situation was one where a remedial program could be established with Mr and Mrs CE with a view to restoring the children to them. Effective consideration of this option requires, in our view, immediate consultation with the carers, the subject of the allegations. That did not occur here. (We recognise that sometimes it may not be possible to make immediate contact with the carers, out of concern for the safety of the children or the accuser. This was not a case of that kind.) There may have been some hope of rectifying the situation had there been immediate consultation with Mr and Mrs CE, a care environment which in other respects had a number of positives for C1 and C2.

ORDER

The decision to terminate the respondents’ custody of the wards is affirmed.