Pi v Willoughby City Council
[2006] NSWADT 255
•30/08/2006
CITATION: Pi v Willoughby City Council [2006] NSWADT 255 DIVISION: Community Services Division PARTIES: APPLICANT
Ming-Hwa (Julia) Pi
RESPONDENT
Willoughby City CouncilFILE NUMBER: 054040 HEARING DATES: 20/02/2006 & 11/04/2006 SUBMISSIONS CLOSED: 04/11/2006
DATE OF DECISION:
08/30/2006BEFORE: Britton A - Judicial Member; Moss J - Non Judical Member; Martin M - Non Judicial Member CATCHWORDS: Child care provider registration - cancellation MATTER FOR DECISION: Principal matter LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Children and Young Persons (Care and Protection) Act 1998
Children's Services Regulation 2004CASES CITED: Ebner v Official Trustee (2000) 205 CLR 337
GG v Minister for Community Services [2002] NSWCA 247
Gray v Coffs Harbour Family Day Care Scheme (CSD) [2005] NSWADTAP 50
Livesey v New South Wales Bar Association (1983) 151 CLR 288
McDonald v Guardianship Administration Board [1993] 1 VR 521 (SupCtVic, Appeal Div)
Mule v The Queen [2006] HCA 6 at [51]
Re Refugee Review Tribunal; ex parte H (2001) 75 ALJR 982
Suzanne Frugtniet v Administrative Decisions Tribunal (Appeal Panel) & Anor; Brian Frugtniet v Administrative Decisions Tribunal (Appeal Panel) & Anor [2005] NSWCA 257REPRESENTATION: APPLICANT
RESPONDENT
A Pin, agent
M Paul, solicitorORDERS: The Respondent’s decision to remove the Applicant’s name from the register of family day care carers is affirmed.
Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(1A) This section applies only to the following:
(a) proceedings in the Community Services Division of the Tribunal,(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,
(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,
(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983
(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.
(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,
REASONS FOR DECISION
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. Julia Pi has applied to the Administrative Decisions Tribunal for review of the decision made by the Willoughby City Council to terminate her registration as a family day care carer. The Council is a licensee of a family day care children’s service and Ms Pi is a family day care carer registered with this service. Ms Pi has provided family day care services through the Council for about 15 years. The Council is the Respondent in these proceedings.
2. By letter dated 12 August 2005 Ms Pi was notified of Council’s decision to remove her name from its register of family day care carers. The stated reason for that decision was as follows:
3. On 6 September 2005 on the application of Ms Pi the Tribunal (differently constituted), stayed Council’s decision.
Council considers that the level of care you provide for the children is not of the standard required to meet the Children's Services Regulations 2004, Clause 100 (2). Despite undertaking two Management Plans specifically designed to aid you in improving in identified areas, and also having received six weeks of intensive one to one training, there has not been sufficient improvement in the level of care provided.
4. In these reasons, because of the sensitivity of this matter, we have not published any details that could identify the children in Ms Pi’s care. We have also decided not to publish any details that would identify parents who have made adverse reports about Ms Pi. To achieve that end we have also decided not to publish the names of parents who provided favourable references for Ms Pi as to do so could inadvertently identify those who had made complaints about her.
Relevant legislative provisions
5. The licensing of family day care services is governed by the Children and Young Persons (Care and Protection) Act 1998 (the 1998 Act) and the Children’s Services Regulation 2004 (the 2004 Regulation). Ms Pi was initially registered as a childcare provider with Council pursuant to cl. 30 of the Family and Day Care and Home Based Child Care Services Regulation 1996 (1996 Regulation). Pursuant to the savings and provisional transitional provisions of the 2004 Regulation from 30 September 2004 the Council is taken to be the holder of a licence under the 1998 Act and Ms Pi is taken to be a family day care carer under Council’s transferred licence. (Schedule 2, cl. 2(1) and cl. 2(10)).
6. The decision to remove Ms Pi’s name from the register is reviewable by the Tribunal: s 38(1) of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) and cl. 123A of the 2004 Regulation. (See Gray v Coffs Harbour Family Day Care Scheme (CSD) [2005] NSWADTAP 50.)
7. The 2004 Regulation gives the licensee, in this case the Council, broad discretion to remove the name of a carer from the Register. Clause 101(3) provides:
8. Neither the 1998 Act nor the 2004 Regulation provide express guidance on the factors to be taken into account in the exercise of that discretion. In the absence of such guidance, in our view it is instructive to examine the factors to which a licensee must have regard when deciding whether to enter the name of a person on the Register. Clause 100(2) of the 2004 Regulation provides:
Nothing in this clause prevents the licensee of a family day care children’s service from removing the name of a family day care carer from the family day care register for the service at any time and for any reason.
9. Chapter 12 of the 1998 Act deals with “children’s services” which is defined to include family day care. The objects of the Chapter are set out at s 201 and are:
(2) The licensee of a family day care children’s service is not to enter the name of a person as a family day care carer on the register for the service unless the person is an adult who, in the opinion of the authorised supervisor:
(a) has an appropriate understanding of young children’s needs and development, including:
(b) is responsive to children, and
(i) the individual differences between children, and
(ii) activities that stimulate a child’s growth and development, and
(iii) nutrition, health, hygiene and safety, and
(iv) behaviour management, and
(c) is physically and emotionally able to care for young children, and
(d) is the holder of a current first aid certificate or is otherwise appropriately qualified to provide first aid in a medical or other emergency, and
(e) is able to communicate effectively with adults, and
(f) is aware of and sensitive to the needs of young children and their families, including children from a range of cultures and religions and children with disabilities, and
(g) is a fit and proper person to be concerned in the provision of the service, and
(h) has a general understanding of the relevant requirements of this Regulation.
10. Section 202 provides that the provision of children’s services should be based on the following principles:
(a) to ensure the safety, welfare and well-being of children in children’s services, and
(b) to promote certain standards for those services, and
(c) to ensure, as far as possible, that all persons working in children’s services are suitable for such work.
11. The power to deregister a family day care carer is to be found in cl. 101 of the 2004 Regulation which provides:
(a) the paramount consideration in the provision of children’s services is the best interests of children,
(b) children should receive services that meet their individual needs (including the needs of children with a disability) and enhance their physical, emotional, cognitive, social and cultural development,
(c) parents have both a right and a responsibility to be involved in the making of decisions by a children’s service in so far as those decisions affect their children.
Visits by Council to Ms Pi’s service
(1) The Director-General may direct the licensee of a family day care children’s service to remove a family day care carer’s name from the register for the service:
(a) if the carer:
(b) if any part of the grounds and buildings of the carer’s home that is available for use in connection with the service and is accessible to children, or any equipment used at the home in providing the service, fails to comply with the Part 3 facilities and equipment requirements applicable to family day care children’s services, or
(i) is convicted of a notifiable offence, or
(ii) fails to comply with an obligation that this Regulation requires the licensee to impose on the carer, or
(c) if a person normally resident at the home of the carer:
(2) On receiving a direction under subclause (1) in relation to any person, the licensee must remove the person’s name from the register.
(i) is convicted of an offence about which the carer is required to notify the Director-General, or
(ii) has injured a child provided with a service at the home, or
(iii) in the opinion of the Director-General, has taken any verbal or physical action against a child provided with a service at the home that has seriously humiliated, frightened or threatened the child.
(3) Nothing in this clause prevents the licensee of a family day care children’s service from removing the name of a family day care carer from the family day care register for the service at any time and for any reason.
(4) On removing a person’s name from the register for a family day care children’s service, the licensee for the service:
(a) must notify the person of that fact, and (if the removal arises from a direction under subclause (1)) of the reasons given by the Director-General for the direction, and
(b) must notify the parents of the children to whom the person was providing the service of the fact that the person’s name has been removed from the register.
12. Throughout the period 2003 to 2005, a Child Development Officer (CDO) employed by Council visited on a regular basis the family day care carers registered through its service. Following each visit the officer was required to complete a “Home Visit Report” and place it on the carer’s file. The report was in standard form and provided space for the officer to note the children who were present, the activities observed, “quality assurance issues” and “follow up”. The report also required the officer to note whether play occurred inside or outside, whether the television was on and whether prescribed documents such as time sheets and first aid information were on display. The form also provided a space for comments.
13. Included in the material tendered in these proceedings were the home visit reports prepared following visits to Ms Pi’s home throughout the period 2003 to 2005. Many were complimentary of aspects of Ms Pi’s service. They also reveal areas of persistent concern which included:
14. The following give an indication of the flavour of these reports:
Lack of appropriate toys.
Failure to offer appropriate activities to challenge the developmental needs of the children.
Failure to offer children opportunity to play outside.
Inadequate facilities.
Problems with toilet training.
Complaints by parents
Report 7 May 2003 prepared by CDO Heidi Webb: “House seemed cold. [Ms Pi] said she intended to go out that afternoon when the grass had dried. We talked about the ‘importance of outside play’”.
Report 3 June 2003 prepared by Ms Webb: “Sunny and warm afternoon, Children inside with pile of books on floor. Soon after Ms Pi placed animals and construction on floor. I asked why she wasn’t outside on such a warm afternoon. She said still wet outside and [Child’s] Dad will be here by 3.30 pm. I then went outside. Grass dry. I expressed my concern that I have never seen children outside. Spoke to [Child’s] dad and asked him how he felt about [Child] playing outside. He said fine. Julia said she wouldn’t hear knock.”
File note 27 January 2005 Following a visit to Ms Pi on this day Children Services manager Daphne Drew wrote: “[o]n arrival children were outside without hats and none were actively involved in an activity. The only experience set up was painting. After suggesting that [Ms Pi] find an activity that might interest one of the girls, [Ms Pi] bought out a doll and threw it at [the child’s] feet… There is no variety and children stand about or sit without movement, without language and with limited emotional behaviours, their few behaviours are crying and irritability.”
15. The Council’s file reveals that a number of parents contacted Council and raised similar concerns to those recorded above. In February 2004 a parent contacted Council and stated that while Ms Pi was “kind and sweet” a few areas could be improved namely, the provision of more toys and the manner in which parents were greeted. The parent gave as an example, “Hallo. How are you? Where is my money?” (Exhibit R1 Attachment 26)
16. In August 2004 a parent wrote to Council and complained that no high chair was provided; that Ms Pi complained that the finger food she provided her child for lunch was “too messy” and, that Ms Pi was inflexible in regards to sleeping arrangement.
17. In September 2004 a parent advised the Respondent that she had decided to remove her child from Ms Pi’s care for the following reasons: the house and backyard in her opinion were unsafe; no high chair was provided; Ms Pi had been rude and abrupt in her dealings with her; she had observed Ms Pi scream at a child; Ms Pi had refused to provide her child with milk or other fluids when she forgot to provide milk on her child’s first day in her care. In answer Ms Pi contended that these allegations had been raised by the parent to avoid paying late fees. She asserted that she was entitled to refuse to provide the child milk as this did not form part of the agreement.
18. In January 2005 a parent wrote in a “Parent Exit Survey” that in her opinion the program of activities provided by Ms Pi was poor. She suggested that the play area be “brightened up” and more resources provided. She wrote “[s]ince September [2004] its only been in the last two weeks that this [outdoor play] has been included”. She pointed out that her children found the west-facing playroom to be unpleasantly hot and when she arrived to collect them they were often sweating. In a letter to Council dated 7 March 2005 Ms Pi wrote that the parent had been happy with her care and indeed given her a small gift in appreciation. Ms Pi claimed that she had only complained to Council after Ms Lawson had conspired against her.
Management plans
19. In September 2004 the Council required Ms Pi to submit to a management plan the stated aim of which was to bring about some “quality improvement changes” in her service. Under the Plan Ms Pi was required to visit and observe other carers; explore ways that communication with parents could be improved; discuss with Council officers child development issues and the needs of individual children (Exhibit R1 Attachment 40). In addition to the regular visits by CDOs it was proposed that Ms Pi be provided with additional support. The implementation of the Plan was coordinated by Children’s Services Operator Co-ordinator, Jennifer Gaffney.
20. In a letter dated 28 September 2004 Ms Gaffney congratulated Ms Pi on her efforts to embrace aspects of the Plan including the provision of craft activities and a pleasant space for outdoor play. She went on to recommend that Ms Pi develop further craft activities with CDO Jan Lawson; use a low chair rather than a pram for feeding younger children and erect a safety barrier between the play and living rooms.
21. It is not altogether clear from the documentation filed in these proceedings why Council discontinued the Plan. We understand it to suggest that the reason was Ms Pi’s alleged failure to co-operate. Ms Pi on the other hand claimed it was because relevant Council officers had taken leave and/or had been moved to other positions.
22. In a memo dated 14 February 2005 Family Day Care Co-ordinator Kathleen Fleming recommended to Marcia Lewis, Community Services Director that Ms Pi be deregistered for the following reasons: her lack of understanding of the needs of young children; failure to provide activities that stimulate growth and development; poor use of behavioural management techniques; inability to communicate with staff and parents; refusal to accept children who she considered difficult; reluctance to accept Chinese background children; general lack of understanding of the relevant regulations. Ms Pi denied that she had ever refused to take difficult children or Chinese children.
23. In a letter dated 28 February 2005 Ms Lawson, Ms Pi’s CDO since August 2004, wrote to General Manager John Owen in support of Ms Fleming’s recommendation. She wrote that in her opinion Ms Pi’s service was inadequate and did not meet the ideal of “High Quality Child Care”. She stated that she felt unable to continue as Ms Pi’s CDO because of the emotional stress she was under. She pointed to, among other things, the practice of Ms Pi and her family of scrutinising the home visit reports she was required to issue. She claimed to have witnessed Ms Pi verbally attack Ms Fleming and Ms Drew and that she had become extremely agitated in front of the children in her care.
24. Following a meeting between Mr and Mrs Pi, the Council’s Mayor and General Manager it was decided to implement a further management plan. It was agreed that that Plan would be reviewed after six weeks. The Plan covered six areas: staff relations; child interaction; programming- resources and equipment; development of an evacuation plan; communication with families.
25. At the commencement of the Plan Ms Lawson conducted an audit of the play equipment provided by Ms Pi and drew up a list of recommended equipment. She advised that old and broken equipment needed to be removed and toys from McDonalds were unsuitable. She recorded “[Ms Pi] does not have adequate craft equipment-I do not know how the children have access to a variety of paint colours when Julia had only one paint pot”.
26. In a report following a visit on 13 May 2005 Ms Lawson commented on a number of improvements she had observed. These included the provision of fresh playdough; the attractive way the playroom was set up; the expanded range of activities offered to the children. The report also included a number of observations not favourable to Ms Pi. These included an incident where after changing a child’s nappy Ms Pi placed him back into his wet tracksuit pants.
27. In a detailed report dated 20 May 2005 Coordinator Maria Bennett reported on the outcome of the second management plan. Using a scale of one to five (“Least Skilled” to “Exceptional”) she rated Ms Pi’s performance against the areas the focus of the Plan. In most areas Ms Pi scored two (“Not a strength”) and, in some three (“Adequate”).
28. Ms Bennett reported that there was evidence of some improvements namely better interaction with children; the purchase of new equipment; the relationship with staff had improved and an evacuation plan implemented. She believed however that the level of care was still of a low quality. She stated where improvement had occurred it generally involved a literal interpretation of recommendations made by Council staff and that there was no sign of any real understanding on Ms Pi’s part. She gave as an example that, the display of artwork. While as staff had urged, the children’s artwork was now on display it was not rotated. According to Ms Bennett the same artwork had been on display for the entire length of time of the plan.
29. Ms Bennett concluded:
The Gaffney Report
All carers can improve in some areas but they generally have a strength in one or more other areas. This is not the case with Julia-she needs to improve in all areas of care. FDC staff and myself feel that weekly visits are still required if she continues as a carer and the Management Plan would need to be extended on and continued ... but where does it end? How long do we work with Julia to achieve even a consistent base level that is acceptable?
30. At the conclusion of the Second Plan Council decided to provide Ms Pi with further training and then reassess her performance. Former employee, Jenni Gaffney, was appointed to provide one on one training over a six-week period. Ms Gaffney made daily reports of her observations and showed them to Ms Pi. Ms Pi claimed in these proceedings that as English was not her first language she was disadvantaged by Ms Gaffney’s practice of not leaving the reports with her as she was unable to discuss them with her husband and son.
31. In a statement filed in these proceedings Ms Gaffney described the training she provided Ms Pi as based on the TAFE NSW training package for Certificate 3 in “Community services child and family services” and set out the objects of the training.
32. In a report to the General Manager dated 27 July 2005 Ms Gaffney wrote:
33. In evidence Ms Gaffney gave an example of what she considered to be Ms Pi’s problems with organising a structured program. According to Ms Gaffney she had explained in some detail the need to set up outside craft activities before the children arrived as the layout of her house meant that she could not see the backyard from the house. On the day nominated for this activity to occur which was about one week after this discussion the area was not set up and, according to Ms Gaffney, Ms Pi would not have been able to do so without her assistance.
Julia was informed that she would be required to demonstrate her understanding of the information provided on a weekly basis. Each week Julia and I would review the prior week’s comments and set tasks for the following week. This was to ensure that Julia was provided with opportunities to demonstrate her new knowledge. On many occasions tasks, such as group times, were not completed unless requested.
Julia has developed her knowledge and skills in some areas. She has demonstrated openness to suggestions on most occasions, and has genuinely attempted to apply learned knowledge in particular areas. Whilst this improvement is positive it does not signify that the areas of improvement are at, or will remain at, an acceptable level of quality of care.
The program appears to be offering a wider range of experiences for the children enrolled, however this is still limited in the opportunities for further extension and learning. Activities are set up in a more appropriate manner, however Julia continues to restrict the children's interactions to the basic use or design of the toy, in turn limiting the children's natural instinct to experiment, explore and therefore learn.
Julia has improved the environment within the home, offering a larger range of experiences that are changed regularly, however this area continues to be inadequate.
Julia has been able to demonstrate an understanding of the children's basic needs. She is able to identify the children's interests and level of conceptual knowledge, although this is often limited to colours and shapes. Julia has not demonstrated any additional skills in using her knowledge of the children's abilities or interests in her programming.
Julia is concerned with the children providing answers to her questions and in her mind quantifying learning and therefore her ability to teach the children. This in itself indicates that Julia does not understand the process of learning through play nor how the environment should support learning. Julia does not demonstrate an ability to hold a conversation with the children that is not based on closed ended questions, resulting in limited opportunities for the children to extend their own language development and imagination.
Julia has demonstrated an awareness of the environment and its impact on the children's behaviour. She has made some changes, based on suggestions, to the playroom to assist in guiding the children's behaviour. Practical application of knowledge beyond these suggestions has not been demonstrated.
Julia is using positive reinforcement with the children. This is restricted to labels of 'good boy or good girl' at this stage, however continued improvement in this area is evident.
Whilst Julia has improved in the above areas there are still areas of her service that are not considered to be of a standard that is satisfactory in the provision of a quality home environment.
Julia requires continued assistance in guiding the children's play and identifying potential learning opportunities. Involvement and interaction levels with the children are not sufficient to keep them interested and engaged through out an entire day.
Whilst Julia appears to be able to better manage the behaviour of the children currently enrolled I am not confident that she holds the knowledge to be able to modify the environment if the number of children enrolled is increased. Julia needs constant reminding to lower her voice and reflect on her tone used with the children.
Julia does not demonstrate an ability to reflect on her program and interactions with the children. Julia often discounts suggestions for activities, therefore resulting in the assumption that she is not willing to improve the programming aspects of her service.
Children's responses to particular activities, such as drawing and painting, indicate that these types of experiences are not available for use on a regular basis. This leads to the conclusion that these types of experiences are not available for the children on days that visits from Council officers are not expected.
Julia has not demonstrated an awareness of the purpose and need for such experiences and limits the children's participation in these activities through either time constraints she places on the children, material shortages and lack of planning.
The program and Julia's interactions with the children limits their opportunities to use their imagination and develop creativity. Julia has not been able to identify when she should be involved in direct, indirect or guided learning. Appropriate and consistent guidance has been provided in this area, however Julia continues to direct the children based on her needs, as opposed to the children's.
34. Ms Gaffney stated that Ms Pi on occasion was not responsive to the needs of the children in her care and behaved in an overly structured manner. She gave three examples. The first involved a boy Ms Pi had described as “naughty” who had initially refused to participate in a painting activity. After some time, Ms Pi began to pack up the equipment not noticing that the boy had started to paint. The second involved a craft activity which involved making fish out of paper plates. Once completed Ms Pi immediately removed the fish from the children and announced that “play was over”. The third involved a drawing exercise. Rather than ask the children what they were drawing, which Ms Gaffney believed to be an appropriate response, Ms Pi instructed the child to “draw here …draw here”. According to Ms Gaffney once the page was full Ms Pi took the drawing from the child and play was considered over.
35. Ms Gaffney concluded that while improvement had been made she was not confident that it could be maintained or that Ms Pi would be able to build on these improvements.
Report to Ombudsman
36. In October 2004 Council notified the NSW Ombudsman of alleged misconduct involving Ms Pi. That notification was triggered by an incident in which Ms Pi was alleged to have dragged a two-year-old boy by an arm across the floor (Child 1). Two members of Council’s Children’s services division allegedly witnessed the incident. The Council’s letter to the Ombudsman was not filed in these proceedings but it would appear from a subsequent letter to Ms Pi from Ms Drew dated 11 November 2004 that in its initial notification to the Ombudsman Council also reported that Ms Pi had:
37. Ms Drew advised Ms Pi that an investigation had been conducted and three of these allegations “sustained”. She invited Ms Pi to comment on the allegation involving Child 1.
Refused to provide milk or fluids to a child in her care.
Failed to meet a child’s needs in respect of sleeping pattern.
Spoken to a child in harsh tones.
Restricted play.
Been involved in an altercation with a parent in front of a child.
38. In a letter dated 19 January 2005 a delegate of the Ombudsman advised Council that all but one of the allegations related to misconduct rather than reportable conduct. The delegate went on to state that she agreed with Council’s finding concerning Child 1. The delegate also wrote that in the circumstances deregistration seemed to be “overly harsh”.
39. In a letter dated 7 March 2005 Ms Pi denied pulling Child 1 up by the arm. She claimed that what she had done was “gently turn him away after another child had poured water in his face”. She asserted that Ms Lawson did not witness the incident as claimed as she had been looking after another child at the time.
Ms Pi complains to Council
40. In June 2003 Ms Pi complained about CDO Heidi Webb to her supervisor Ms Fleming. Ms Pi asserted that Ms Webb’s reports were inaccurate and judgemental and that she was overly focused on the benefits of outdoor play.
41. Following a meeting with Ms Pi, Ms Fleming announced that a new CDO would be appointed to work with Ms Pi.
42. In August 2004 Ms Pi wrote to Council and complained about Ms Fleming for threatening not to send her any further children on account of complaints from parents. Ms Pi asked for immediate action to be taken against Ms Fleming for her “unprofessional and discriminatory” conduct and for new children to be referred to her immediately. In a detailed document Ms Pi commented on the alleged criticisms made by parents (Exhibit R1 Attachment 34). She claimed that:
43. In August 2004 Ms Pi complained to Council that many of the home visits reports prepared by then CDO Linda Leybourne contained inaccuracies.
Complainant 1 had decided to remove her child because she had reservations about family day care and was reluctant to allow her child to be transported to and from the weekly playgroup.
Complainant 2 removed her child because she was annoyed that she had been requested to collect her sick child.
Complainant 3 had decided not to engage her services because she could not provide the number of days care required not, as stated because of concerns with safety.
Ms Fleming’s assertion that children were provided with inadequate opportunities for play was without foundation. In support she attached a letter from a parent attested that Ms Pi did provide a varied art and craft program.
44. In a letter dated 1 March 2005 Ms Pi complained to the Mayor about the “misconduct of the council’s community services division”. She pointed out that she had worked for 15 years “without complaint” before Ms Fleming became the coordinator of family day care. She went on to allege that staff “collectively and systematically” made false allegations and requested that in the future staff be accompanied by an independent person when they visited her at home.
Parent testimonials
45. Tendered in these proceedings were a large number of testimonials provided by parents supporting Ms Pi. One parent spoke of Ms Pi’s diligence in ensuring her son was well hydrated at all times which was essential as he had only one functioning kidney. Another commented on Ms Pi’s proven ability to settle her baby who had always been a very difficult baby. Another commented on the positive suggestions made by Ms Pi which had assisted her daughter’s sleep pattern.
Findings and Conclusions
46. In conducting this review, the Tribunal “stands in the shoes” of the Council and is required to make the “correct and preferable decision” having regard to the material before it (Tribunal Act, s 63). This includes not only that available to Council when the original decision was made but any material that postdates that decision ((Suzanne Frugtniet v Administrative Decisions Tribunal (Appeal Panel) & Anor; Brian Frugtniet v Administrative Decisions Tribunal (Appeal Panel) & Anor [2005] NSWCA 257 at [45]) YG & GG v Minister for Community Services [2002] NSWCA 247 at [25]). The review is to be conducted “without any presumption as to the correctness of the decision”: McDonald v Guardianship Administration Board [1993] 1 VR 521 at 530 (SupCtVic, Appeal Div). In making its decision, the Tribunal is instructed to observe the principles enunciated in s 9 of the Children and Young Persons (Care and Protection) Act 1998 (the 1998 Act) which include that the safety, welfare and well-being of the child must be the paramount consideration.
47. Clause 101(3) of the 2004 Regulation grants licensees of a family day care children’s service with a very broad discretion to remove a family day carer from the register. The clause provides that the licensee may do so “any time and for any reason”. Clearly, such a reason must be lawful and have a proper and rational foundation, but within those limits the discretion is remarkably wide.
48. Ms Pi has attempted to demonstrate that the decision of the Council ought be overturned, by showing that Council’s discretion miscarried on the basis that there was demonstrable bias in the decision-making process but also, and more significantly, because there was no rational foundation for the decision.
49. It is argued for Ms Pi that the offending decision should be set aside for the following reasons: first, those involved in assessing her capabilities as a family day carer were not qualified to do so, used inappropriate criteria and, in addition, were biased against her; second, prior to early 2003 she had worked as a family day care carer without complaint; third at all material times she has fully met all relevant regulatory requirements as evidenced by the fact that since 1996 her registration had on all occasions been renewed and that she enjoys the support of parents who used her service; fourth, she has at all times cooperated with Council and complied with any reasonable requirements imposed.
50. Bias allegation We deal first with the allegation that the Council’s process was flawed because the key decision makers, or persons on whose recommendations their decisions were based, were biased against Ms Pi or were not qualified to offer an opinion.
51. Where a decision-maker fails to provide procedural fairness to a person whose interests are affected the decision may be set aside or suspended pending the correction of the default. A decision-maker must disqualify herself or himself from determining a matter if a fair-minded lay observer might reasonably apprehend that he or she might not bring an impartial mind to the resolution of the question to be decided. (Ebner v Official Trustee (2000) 205 CLR 337 at 344; Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-4; Re Refugee Review Tribunal; ex parte H (2001) 75 ALJR 982 at [27]; Mule v The Queen [2006] HCA 6 at [51].)
52. It is apparent that by the time the second management plan was implemented there was much ill feeling between the Pis and Council staff. A succession of CDOs had overseen Ms Pi’s service since the start of 2003 and Ms Pi had lodged complaints about nearly all of them. She had accused supervisor, Kathleen Fleming, of “unprofessionalism and discrimination”. Ms Fleming in turn recommended that Ms Pi be deregistered, a decision supported by CDO Jan Lawson, and no doubt other staff.
53. Ms Pi contends among other things that some of the observation set out in Ms Gaffney’s report were false and inaccurate. In support she points to reports prepared by Council staff who had visited her at the same time as Ms Gaffney which she contends contradict many of the observations recorded by Ms Gaffney. These include the report prepared by Ms Griscti dated 16 June 2005 and Ms Fleming dated 14 July 2005. A review of these three reports indicate that all contain some observations favourable to Ms Pi. Ms Griscti’s report while complimentary, notes, as did Ms Gaffney, that more preparation was needed to allow the children to move from play to craft activities. Similarly Ms Fleming noted concerns with the lack of preparation with the outside play area. In our view the reports while not identical could not be considered to be inconsistent.
54. The Home Visit reports prepared by Ms Gaffney record detailed and practical suggestions about ways Ms Pi could improve her service. Most contain negative and positive comments. The former in our view do not appear to be overly trivial or unreasonable. (See, for example, the suggestion that Ms Pi have emergency food supplies on hand that she organise equipment before the children were taken outside for craft activities (Home Visit report 9 June 2005)).
55. Having considered all the evidence, including that given by Ms Pi, we are of the view that Ms Gaffney’s final report was balanced. We also find that she made a real and diligent attempt to provide useful training to Ms Pi. We are not satisfied that the claim of actual bias can be maintained.
56. Nevertheless given Ms Gaffney’s former dealings with Ms Pi (she had been employed in the Children’s Services Division of Council until 2004 and had been a witness to the incident which triggered the notification to the Ombudsman) it should have been anticipated that Ms Pi would have misgivings with her capacity to bring an open mind to the task. It should have been apparent to all that at the time of her appointment that Ms Gaffney’s assessment would be critical to Ms Pi’s future as a carer. While not the ultimate decision maker, it is apparent that Council intended to, and ultimately did, place considerable weight on her findings.
57. While the decision to appoint Ms Gaffney was possibly unwise, given her previous employment by the Council and the apprehension of bias that might give rise to in Ms Pi’s mind, it does not follow that the Council’s decision ought be set aside on that account. First, Council was not required to have Ms Pi assessed by an independent expert. It was entitled to rely on the advice of its own staff. Second, even if established that Council failed to afford Ms Pi procedural fairness on account of the charge of apprehended bias it does not follow that the decision to deregister Ms Pi must be set aside. In exercising its jurisdiction to review the decision to deregister Ms Pi, the Tribunal undertakes a full de novo review. The Tribunal’s task is to make the correct and preferable decision having regard to all the evidence. Procedural shortcomings if any on the Council’s part do not require the Tribunal to revoke the decision.
58. The real issue in respect of Ms Gaffney’s report is in our view the weight it should be given. For the reasons given we do not accept the contention that actual bias has been established. Nor do we accept Ms Pi’s submission that Ms Gaffney was unqualified to offer an opinion in this area because she has no direct experience as a family day carer. Filed in these proceedings was an outline of Ms Gaffney’s experience and qualifications. (Exhibit R1 Attachment 93). She holds postgraduate qualifications in early childhood education; has experience in long day care and pre-school and has worked in various areas of the Council’s children’s services division. In our view she is qualified to offer an opinion about the quality of family day care services provided by Ms Pi.
59. It does not follow that the Tribunal is bound to accept any or all of Ms Gaffney’s opinion. What weight is to be afforded is to be determined having regard to the totality of the evidence.
60. Unblemished record There is no evidence to contradict Ms Pi’s claim that, prior to 2003, no criticisms of note were made about her to Council by either staff or parents. Council’s records tendered in these proceedings relate only to the period from 2003.
61. Given that there is no material difference in the requirements imposed on carers by the 2004 Regulation and its predecessor, Ms Pi asks rhetorically why was it that problems with her service only came to light in 2003. She puts it down to the fact that some Council staff foremost Ms Fleming, took a dislike against her and encouraged others to follow.
62. Missing from the evidence is Council’s procedures and policies in respect of family day care before 2003. From what is before us we cannot say whether Council took a more energetic approach to monitoring carers from 2003. Certainly, Ms Pi did not adduce evidence of positive approbation from Council prior to 2003; she merely rested on the argument that nothing had been found wrong with her performance up to that time.
63. Nevertheless, even if Council did not closely monitor Ms Pi’s performance up to 2003, it is reasonable to expect that any very serious shortcomings might have been the subject of complaint to Council. The absence of any evidence of any complaints against Ms Pi before 2003, while not determinative, is a matter that must be taken into account in the final assessment of whether her name ought to be removed from the register in 2005.
64. Assessment of Quality of Care The Tribunal is faced with the difficult task of assessing the quality of the care provided by Ms Pi in circumstances where we have not had opportunity to observe her in this role first hand and those who have, whose opinions are before us, hold widely divergent views. The authors of the two reports which sealed Ms Pi’s fate namely Ms Gaffney and Ms Bennett believe that Ms Pi does not meet the requirements set out in Clause 100(2) of the 2004 Regulation. Ms Pi, on the other hand, we accept holds the sincere belief that she meets the standards in relation to all relevant requirements. A number of parents whose children have been in Ms Pi’s care, some for extended periods, believe her to be a satisfactory if not exemplary carer. In contrast several parents lodged complaints about Ms Pi with Council or refused to use her services because of what they considered to be her inadequacies as a carer.
65. It is self-evident that many of the factors nominated by Parliament as indicia of quality childcare are highly subjective and, because of this, difficult to define and measure. For example, minds can and no doubt do differ on what constitutes “activities that stimulate a child’s growth and development”.
66. In support of its decision Council relied among other things on the reports of Ms Gaffney and Ms Bennett. It contends that these reports corroborate the observations of staff members over an extended period that Ms Pi’s service was lacking in key areas.
67. Despite the heat surrounding the report to the Ombudsman it is apparent that Council’s key issue was not that Ms Pi posed a risk to the safety of children. The principal problems, as far as the Council was concerned, seem to have been her lack of understanding of the need to provide a stimulating program for children in her care; her inflexible attitude towards some children and some parents; her inability to manage the behaviour of some children; and her lack of insight of the need to improve.
68. It is telling, in our view, that from as early as 2003 Ms Pi had been told that the equipment she provided was inadequate. This included toys and basic equipment such as suitable chairs. Despite this, twelve months later, a Council officer recorded that only one paint pot and painting apron was available to Ms Pi’s charges. Ms Bennett reported some twelve months later again that while some additional equipment had been purchased, much was old and in poor condition. While arguably a relatively trivial matter it does indicate that for an extended period Ms Pi was either unwilling or unable to implement a non-controversial recommendation made by Council officers. In our view the inference can also be drawn that Ms Pi did not place great importance on providing her charges with a range of activities.
69. It seems to us that the evidence supports a finding that Ms Pi struggled to manage the behaviour of some children. There are constant references in the Council’s file to Ms Pi refusing to take certain children because she considered them to be “difficult”. Ms Bennett considered that Ms Pi’s strength was caring for “well behaved” children and that she would have difficulty dealing with children who displayed “challenging behaviours” especially if the numbers of children in her care were to increase. (At the time of the second management Plan there were no more than three children in Ms Pi’s care on any one day). Ms Gaffney shared that opinion. She observed Ms Pi “often” speak to children in a loud voice. She commented that Ms Pi persisted in referring to certain behaviours as “naughty” despite being counselled not to do so. The observations of Ms Bennett and Gaffney, together with those recorded by staff and some parents over an extended period, indicates that this was an ongoing problem.
70. In contrast with Ms Webb’s 2003 description of a sterile environment, with few toys, no structured program and virtually no outdoor play, by late 2005 Ms Pi had made significant improvements in most areas. While Ms Bennett and Ms Gaffney acknowledged this, both believed that, in overall terms, the standard remained less than satisfactory and said so in their respective reports. Both concluded that if these improvements were to be maintained and the identified shortcomings addressed constant monitoring and supervision would be required. Ms Bennett told the Tribunal that she doubted that Ms Pi had the necessary insight to maintain and build on the improvements she had made. Ms Gaffney voiced the same concerns.
71. It is unarguable that the role of a family day carer is a difficult and challenging one. A carer is required to open up her or his home to children from diverse backgrounds whose parents have differing expectations of what constitutes “quality care” and provide a high standard of care. Parliament, in line with changed community expectations, has decided that is no longer sufficient that the children in day care merely be safe, fed and reasonably happy. Carers are now expected to provide a range of educative and developmental activities for their charges and juggle this with the varied sleeping, eating and toileting patterns of children of different ages. It is against these demanding standards that Ms Pi is required to be judged.
72. Ms Pi clearly has strengths as a carer. It is evident that she has been able to develop a bond with some children. Many parents thought the care she provided to be of a high standard. In recent times she has made real efforts to review and improve her practices and in some respects has been successful in those attempts. There is no evidence of any complaints or adverse reports against Ms Pi before 2003.
73. Against this there are a number of matters that cannot easily be ignored. A large number of Council staff who observed Ms Pi over an extended period identified shortcomings in the quality of care she provided. A not insignificant number of parents complained to Council about what they saw as shortcomings in the quality of care. Both Ms Bennett and Gaffney concluded that despite real efforts on Ms Pi’s part to improve, not all problems areas have been rectified. Importantly, neither is confident that, absent close monitoring by Council, the improvements can be maintained.
74. Whether Ms Pi’s performance up to 2003 met the relevant standards is an arguable issue. Apart from Ms Pi’s only claims, the only evidence on that point is essentially negative: there was no evidence of complaint. Even if, however, Ms Pi’s performance to that point had been exemplary, the preponderance of evidence demonstrates clearly that when her performance was placed under close scrutiny from 2003 onwards, she either did not meet the necessary standards or did so only with close monitoring and support.
75. It is self-evident that in an age of limited government resources and tight accountability for them that licensees cannot divert their valuable childcare staff for lengthy periods of time towards one carer (or a small number of carers) who cannot make the grade or who has inordinate difficulties doing so.
76. It may well be that Ms Pi can provide an appropriate standard of care to certain children in certain environments. To be placed on the register a carer must be able to demonstrate that she or he can meet all the relevant statutory and regulatory criteria against which her or his ability to care for a range of children will be judged. With training and support, carers are expected to be able to become virtually self-sufficient and able to meet the standards without being endlessly supervised and shadowed by Council staff. We are not satisfied that Ms Pi is capable of maintaining those standards without an unreasonably close degree of supervision and support.
77. For those reasons, although we concede the efforts at improvement made by Ms Pi and understand her distress, we have come to the conclusion that the correct and preferable decision is to confirm the Council’s decision to deregister Ms Pi.
Orders
The Respondent’s decision to remove the Applicant’s name from the register of family day care carers is affirmed.
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