Secretary, Department of Education and Peter Barron
[2014] AATA 783
•24 October 2014
[2014] AATA 783
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/4092
Re
Secretary, Department of Education
APPLICANT
And
Peter Barron
RESPONDENT
DECISION
Tribunal Mark Hyman, Member
Date 24 October 2014 Place Canberra Mr Barron’s grandchild, despite having been removed from a situation where she was at risk, is still very vulnerable. There are continuing risks to her health deriving from her early childhood. If she is denied special child care benefit she will be withdrawn from child care. In those circumstances she is at risk of serious neglect. The decision to award special child care benefit for the period April-June 2014 is affirmed.
...............................[sgd].........................................
Mark Hyman, Member
Catchwords
FAMILY ASSISTANCE – special child care benefit – child at risk of serious abuse or neglect – application of policy - whether a continuing risk of neglect – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975,ss 37, 41
A New Tax System (Family Assistance) Act 1999 ss 42, 76, 77, 81
A New Tax System (Family Assistance) (Administration) Act 1999, s 50F
Cases
Drake v. Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Hneidi v Minister for Minister for Immigration and Citizenship [2009] FCA 983
Hneidi v Minister for Minister for Immigration and Citizenship [2010] FCAFC 20
IW v The City of Perth (1997) 191 CLR 1
Larcombe and Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 648
Nikac v Minister for Immigration, Local Government and Ethnic Affairs (1988) 20 FCR 65
Re Drake and Minister for Immigration and ethnic Affairs (No 2) (1979) 2 ALD 634
Secondary Materials
A Guide to Special Child Care Benefit
Macquarie Dictionary online edition
REASONS FOR DECISION
Mark Hyman, Member
24 October 2014
The respondent, Mr Peter Barron, has a young grandchild, who was born to his daughter in April 2009. The child had a difficult start in life, and was placed in the care of Mr Barron and his wife in September 2009. The child has difficulty eating and sleeping and has few opportunities for socialising with other children, living as she does with her grandparents. She attends child care, where she has better eating and sleeping patterns, and she gets to mix with other children. Mr and Mrs Barron have been assisted by payment of special child care benefit (SCCB). An application for that benefit to continue was made by the child care centre in March 2014 for the April-June 2014 period, but it was rejected. Mr Barron sought review, and a Centrelink Authorised Review Officer (ARO) affirmed the decision not to continue with the payment on 21 May 2014. Mr Barron then sought review in the Social Security Appeals Tribunal (SSAT), and the SSAT set aside the ARO’s decision and decided that SCCB should be paid for the three months to June 2014. The Secretary now seeks review of that decision in this Tribunal.
In the reasons that follow, for privacy reasons the granddaughter of Mr Barron is referred to as ‘the child’. This may seem impersonal given the very human circumstances under consideration. Nevertheless, there is good reason to maintain the child’s privacy and no need not to do so, as she is not herself a party to the proceedings.
The hearing
The Secretary initially sought to have the Tribunal issue a stay order under s 41(2) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) preventing the SSAT decision from applying. On 28 August 2014 I denied that application on the basis that, the three months having already passed, it would be of limited effect if granted.
The hearing of the substantive matter was held on 22 September 2014. Mr Barron attended by telephone. The Secretary was represented by Mr Will Sharpe of Sparke Helmore.
Mr Barron gave sworn evidence. Documentary evidence before me consisted of the documents submitted by the Secretary under s 37 of the AAT Act (the ‘T-documents’). In addition, Mr Baron submitted two letters in support of his case, from the general practitioner who treats the child (Exhibit R1) and from the Director of the child care centre she attends (Exhibit R2).
The facts
The basic facts of the case are not at issue, and the Secretary has emphasised that the applicant’s concern is about the application of the legislation and policy under it and no attack is made on the facts of the matter or the evidence, so far as they relate to the child. The grandchild of the Barrons was born in April 2009. Her mother suffered from drug, alcohol and eating disorder problems and this led to problems with the quality of care the child received (T7). It is accepted that custody was granted by the Children’s Court of NSW to the child’s grandparents, Mr and Mrs Barron, in September 2009. In an affidavit associated with that decision (T7), it is stated that the child was admitted to hospital for ‘failure to thrive’ on three occasions in her first few months of life; that she gained weight while in hospital but failed to gain it when in the care of her parents; the parents had problems with drugs and alcohol; the mother was anorexic and the parents showed signs of ‘poor attachment’ to the baby.
Mr Barron confirmed that the child was starved in her first few months of life (T6). This is supported by medical records associated with the custody decision (T7). The child suffers from medical problems, including poor eating habits (T6). Mr Barron also states that she suffers from poor sleeping habits. He and his wife do not have friends with young children and so there are limited opportunities at home for the child to socialise with others.
The child seems to benefit from attending child care, with benefits to eating, sleeping and socialisation (T6). She will take 45 minutes or more to eat something at home that she might eat in 10 minutes at child care, with the example of other children to follow. Similarly, she sleeps better at child care than she will at home. Child care also offers her the benefits of socialising with other children, benefits she does not get from the home environment.
The general practitioner who treats the child. Dr Mark Sands, stated in a letter dated 31 March 2014 (T6), in support of Mr Barron’s application for SCCB, that since the child has attended child care ‘her eating has improved’ and ‘she has increased her weight’. ‘Eating with other children her age encourages her to eat properly’ and ‘at times she has poor oral intake at home’. A more recent letter from Dr Sands, dated 2 September 2014 (R1), repeats the above statements, and notes that the child ‘has been diagnosed with serious developmental delay and foetal alcohol syndrome’. Dr Sands states in both letters that ‘if she was removed from child care her health would be put at risk’ and ‘I would be concerned she could become malnourished’.
Letters from the child care centre support these views. A letter of 6 March 2014 (T6) from Ms Sharon Walker, Director of the Little Nippers Early Learning and Childcare Centre noted that the child was ‘pale, petite, almost frail looking’; that she ‘requires further development’ from a social/emotional perspective; she ‘continues to have sleep and eating disorders’ and she is ‘still quite underweight’. A letter of 15 September 2014 repeats these statements (R2). Both letters assert continuing health risks to the child: ‘she will be at significant risk of harm through further developmental delays and vulnerable to potential health risks such as stress induced anorexia’.
On 31 March 2014 Mr Barron submitted his application for continuation of SCCB (T6). On 30 April 2014 that application was rejected (T8) on the grounds that the ‘supporting documentation does not state that the child was at risk of serious abuse or neglect’ and so does not meet the requirements for SCCB. An ARO affirmed that decision on 21 May 2014 (T13) and the SSAT set the ARO’s decision aside on 8 July 2014. The Secretary now seeks review of the SSAT’s decision.
Mr Barron’s evidence
As the Secretary was not questioning the evidence relating to the child, Mr Barron’s evidence was limited to his financial circumstances. He said that he had worked as a valuer, including for the Australian Valuation Office for eight years, earning about $120,000 annually. He was retrenched from that employment, and now does part-time work as a valuer. In a good year he might earn $40,000-50,000. His wife had a part time job earning $20,000 annually but has had to give that up to care for the child. Although of an age to do so, he has not yet triggered a pension from his superannuation entitlements, as he is still taking advice and working out what he should do.
Mr Barron receives $516 each fortnight from the NSW Department of Family and Community Services. He acknowledged that if he bore the cost of the child care himself, half the cost would be refunded.
Mr Barron said that if he had not received SCCB he would have reduced the amount of time his grandchild spent in child care, because of the expense.
The legislative context
The legislation affecting SCCB is A New Tax System (Family Assistance) Act 1999 (the FA Act) and A New Tax System (Family Assistance) (Administration) Act 1999 (the FA Administration Act).
Child care benefit (CCB) comes in a number of forms, of which CCB by fee reduction for care provided by an approved child care service, where some or all of the cost of child care is met by direct payment to a child care provider, is presently relevant. The FA Act sets out conditions of eligibility for CCB in Division 4 of Part 3. Section 42 of that Act, in particular, provides that a person is conditionally eligible for CCB by fee reduction for care by an approved child care service if the child is an ‘FTB child’ or ‘regular care child’ of the person and a residency requirement, not presently at issue, is met. Section 50F of the FA Administration Act provides that if the Secretary is satisfied that a person is conditionally eligible for CCB by fee reduction under s 42 of the FA Act the Secretary must issue a determination to that effect.
Division 4 of Part 4 of the FA Act then sets out the various benefits to which eligibility gives access. Section 76 provides, so far as is presently relevant:
(1) If:
(a) a determination of conditional eligibility under section 50F of the Family Assistance Administration Act is in force in respect of an individual and a child for child care benefit by fee reduction for care provided by an approved child care service to the child; and
(b) the service providing the care to the child is satisfied that:
(i) the child is at risk of serious abuse or neglect; or
(ii) the individual is experiencing hardship of a kind specified in an instrument in force under paragraph 82(3)(a);
the service providing the care to the child may, subject to sections 77, 78, 79 and 80, certify in writing the hourly rate of fee reductions applicable for sessions of care provided by the service to the child and the period for which the rate applies.
Section 77 limits the period for which a certificate may be given under s 76:
An approved child care service providing care to a child may only give a certificate under:
(a) subsection 76(1) for a reason set out in subparagraph 76(1)(b)(i) (child at risk); or
(b) subsection 76(2);
if:
(c) the period specified in the certificate; and
(d) the period specified in each other certificate (if any) given by the service under either of the subsections (child at risk or hardship) in relation to the child and the same financial year;
do not in total exceed 13 weeks.
Section 81 allows the 13-week limit set in s 77 to be extended by a determination of the Secretary. Subsection 81(5) provides that a child care service may apply for an extension of the period. Subsection 81(3) then provides as follows:
(3) I f:
(a) a determination of conditional eligibility under section 50F of the Family Assistance Administration Act is in force in respect of an individual and a child for child care benefit by fee reduction for care provided by an approved child care service to the child; and
(b) the service either:
(i) has given a certificate under section 76 such that the total period specified in that certificate and other certificates (if any) given by the service under that section in respect of the child in the same financial year equals 13 weeks; or
(ii) is not able to give a certificate under subsection 76(1) because of the operation of section 79; and
(c) the Secretary is satisfied that the child is at risk of serious abuse or neglect; and
(d) the service applies to the Secretary under subsection (5);
the Secretary may determine the hourly rate of fee reductions for sessions of care the service provides to the child and the period for which the rate applies .
The benefits relating to children at risk and hardship provided for in ss 76 - 82 are together known as ‘special child care benefit’ (SCCB). That term and abbreviation do not appear in the FA Act, but in light of their customary use I have employed them in these reasons. A Departmental policy has been adopted governing the awarding of SCCB: ‘A Guide to Special Child Care Benefit’ (‘the Guide’). The Guide sets out matters to be considered in making decisions about eligibility for and granting of SCCB. I return to the detail of the Guide later in these reasons.
Issues
It is common ground that during April-June 2014 all the eligibility requirements for granting SCCB to Mr Barron under s 81(3) of the FA Act were met except paragraph (c), that is:
a)there was a determination of conditional eligibility under s 50F of the FA Administration Act in force for Mr Barron as required under paragraph (a);
b)Little Nippers child care centre had reached the limit of child care specified under paragraph (b); and
c)Little Nippers had submitted an application under s 81(5), as required by paragraph (d).
The only issue before me is whether subsection 81(3)(c) is met, that is, whether during April-June 2014 the child was at risk of serious abuse or neglect.
CONSIDERATION
The Secretary does not contest the basic facts around the circumstances of the child, her health issues and developmental problems. The essence of the Secretary’s argument is that a decision about the granting of SCCB must take account of the Departmental policy provided in the Guide. In the decision under review the SSAT failed to refer to the Guide, and by implication failed to take it into consideration. In the Secretary’s contention, the Guide, applied to the circumstances of the matter, would lead to rejection of the claim for SCCB.
The role of policy in Tribunal decision-making
The role of policy in the review process undertaken by the Tribunal has been explored in numerous cases and is well established. The starting point is Drake v. Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 (‘Drake’) where Bowen CJ and Deane J said (at 420):
If the original decision maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant factor for the Tribunal to take into account in reviewing the decision. On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.
Their Honours went on to note that the place of government policy in the Tribunal's decision making will depend upon the interests of good government and consistent decision-making on the one hand and the ideal of justice in the individual case on the other, but that its decision must be the result of an independent assessment of all the circumstances of the particular case and not the uncritical application of policy (at 421).
In Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 Brennan J, then President of this Tribunal, noted the value of policy to the consistency of decision-making. He said that the Tribunal should follow Ministerial policy ‘unless there are cogent reasons to the contrary’ (at 645). That comment, however, is to be taken in the context of an earlier proviso, namely that the policy must be consistent with the statute:
It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created. A policy which contravenes these criteria would be inconsistent with the statute… (citations omitted)
These themes are repeated and reinforced in subsequent cases. In Nikac v Minister for Immigration, Local Government and Ethnic Affairs (1988) 20 FCR 65 Wilcox J said (at 81):
Although a non-statutory policy is not binding upon a decision-maker, in the sense that he or she may decide in the particular case not to act in accordance with that policy, a policy applicable to the case is always a relevant consideration in the making of a decision. Unless it can be said that the policy is so insignificant that it could not have materially affected the decision … any failure to take that policy into account will lead to invalidity.
In Hneidi v Minister for Minister for Immigration and Citizenship [2009] FCA 983 Besanko J said (at [37]):
… the Tribunal may take into account a policy and that is particularly so where the statute itself does not specify the criteria which are relevant to the exercise of the statutory power. In the ordinary case, a policy is a relevant factor for the Tribunal to take into account. It is desirable in terms of consistency in decision-making that a policy be taken into account by the Tribunal and that follows from the fact that the original decision-maker has applied or taken into account the particular policy. However, the Tribunal cannot apply a policy in a way which indicates that, in truth, it has abdicated its function to reach the correct or preferable decision on the material before it. The weight to be placed on a policy is a matter for the Tribunal to determine and it will ordinarily do so, balancing the need for consistency in decision-making and the need for justice in the individual case.
In Hneidi v Minister for Minister for Immigration and Citizenship [2010] FCAFC 20, in dismissing an appeal from the immediately preceding case, Spender, Emmett and Jacobson JJ helpfully summed up the current understanding deriving from Drake (at [40-44])
The seminal authority on the entitlement of an administrative decision-maker to take into account a statement of governmental policy is the decision of the Full Court in Drake, in particular the joint judgment of Bowen CJ and Deane J at 590-591.
For present purposes, four relevant propositions emerge from their Honours’ consideration of that question. The first is that the decision-maker is entitled, in the absence of specifically defined criteria for the exercise of the discretion, to take into account "government policy". Thus, where the Tribunal is not under a statutory duty to regard itself as bound by the policy, it is entitled to treat the policy as a relevant consideration.
Second, in the absence of a specific statutory provision (which would no doubt be unusual) the Tribunal is not entitled to abdicate its function of determining whether the decision under review was, on the material before the Tribunal, the correct or preferable one, to a more passive function of determining whether the decision conformed to the relevant policy.
Third, it is not desirable to frame a general statement of the part which government policy should ordinarily play in the determinations of the Tribunal. That is a matter for the Tribunal to determine in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions but balanced against the ideal of justice in the individual case.
Fourth, the borderline between cases in which the Tribunal has abdicated its functions to those of an unthinking application of "government or Ministerial policy" to the facts may sometimes be blurred. But where the Tribunal considers that the correct or preferable decision results from the application of such a policy, it should make it clear that:
"... it has considered the propriety of the particular policy and expressly indicates the considerations which have led it to that conclusion"
Clearly, then, the Departmental Guide is a relevant consideration in the decision I am to take. But I must apply the Guide in a way that takes account of the particular circumstances of the case; I may depart from the Guide, but only if there are particular and compelling reasons to do so; and I should be cautious about its application if it demonstrates inconsistencies with the statute.
The applicant’s argument
Before the hearing, the Secretary provided a statement of facts, issues and contentions in the usual way. The arguments in that statement can be summarised as:
a)Critical terms such as ‘at risk’, ‘serious’, ‘abuse’ and ‘neglect’ should be given their ordinary meaning;
b)Reference to ‘at risk’ should be understood to mean that there is a current risk;
c)Explanations of terms such as ‘neglect’ and ‘abuse’, set out in Appendix D to the Guide, and taken from standards developed by the NSW Department of Family and Community Services, should be adopted or followed;
d)The child may have been at risk when in the custody of her parents but has been removed from that environment; continuing problems are the result of previous abuse or neglect, not of current risk;
e)Part C.6 of the Guide suggests that where a child has been removed from an environment at risk, or where a carer is seeking additional support, SCCB should not be paid; and this case ‘falls squarely within these circumstances’;
f)Part C.2 of the Guide suggests that developmental delay is not of itself a reason for paying SCCB;
g)If the matter is viewed in the light of Mr Barron’s financial circumstances, then the decision should be decided by first considering whether in the absence of SCCB the child would be kept away from child care; if not, the child is not at risk; if so, there is a further question whether in those circumstances there is a risk of serious abuse or neglect, and in the Secretary’s contention, the Guide suggests there is not;
h)Any risk the child faces is a future risk and that is a hypothetical risk which is insufficient to warrant the granting of the benefit.
I cannot accept all of the above contentions. Point (c) above, for example, seems to be potentially inconsistent with point (a): if common and usual meanings are to be adopted, that would not align with the technical meanings adopted by a State department for its own purposes. The argument for the application of Part C.6 is at risk of fettering the Tribunal’s decision on the particular merits of the individual case. With regard to point (h), all statements about risks contemplate the possibility of something happening in the future, and therefore they are inevitably hypothetical. On the other hand, point f) is correct. Developmental delay is not itself a basis for awarding SCCB because its presence does not of itself speak to the existence of risk of serious abuse or neglect. But as the Guide recognises, where there is developmental delay, an assessment may conclude that the statutory test is met, based on ‘what it is that the caregiver has failed to do and what harm or potential harm this has caused.’ In the event, I have not drawn a conclusion about developmental delay per se. Other arguments above are dealt with later in these reasons.
At the hearing the Secretary drew back somewhat from some of these contentions, effectively abandoning point (h) and acknowledging that the policy guidance set out in Part C.6 of the Guide was in rather softer terms than the argument suggested: the guidance regarding ineligibility in that part of the Guide is prefaced by the remark that the examples show ‘some circumstances where children in foster/kinship care may/may not be eligible for SCCB’ (emphasis in original).
The respondent’s argument
Mr Barron asked a number of questions and made some arguments in his opening submission. I will paraphrase the questions in the form of arguments for the purposes of considering their application to the matter:
a)Three professional opinions – that of the child’s doctor, of the child care centre and of the SSAT – agreed that the child was at risk and SCCB should be paid, and there was no professional advice to the contrary;
b)The benefit was paid for January – March 2014, and there was no change in circumstances in the following quarter, so there was no reason to stop the payment;
c)The child almost died before her first birthday; there is no available estimate of how long a child might take to recover from such an episode;
d)The Government should be unwilling to take the risk of her going backward at this stage of her development;
e)It would be preferable to reduce any risk by intervening at this stage of the child’s development and putting her on the right path, to the extent possible; and
f)The ARO had come to a decision before all the evidence was available.
Some of these arguments can be put to one side. In point a) the decision of the SSAT is the decision under review – it does not influence the decision I take in the way Mr Barron suggests. The letters from the child’s doctor and child care centre are evidence relating (among other things) to risk, but the decision about whether the statutory test is met is one for me to take making use of that evidence, evaluating and weighing it appropriately. As for point b), as the Secretary pointed out, I have no evidence about that quarter, and in any case the question is whether the statutory test is met for the second quarter of the year, whether or not it was met at any other time. Any previous failures of procedural fairness, as suggested by point f), have been cured by subsequent reviews, including this one. Points c), d) and e) are all arguments that I take into account below.
Mr Barron’s financial circumstances
The Secretary is certainly correct in noting that in this case the question of risk does not even arise unless there is some circumstance that keeps the child out of child care. If despite the withdrawal of the benefit Mr Barron would have continued to send the child to child care in the relevant period, then the risks associated with poor nutrition and sleeping habits would not arise. Mr Barron’s intentions and his financial circumstances are therefore relevant to the question.
There is a certain artificiality about the question some months after the event. If SCCB had been denied, what would Mr Barron have done? When asked, Mr Barron said he would have been forced to cut back on the number of days the child attended child care. Without any reflection whatsoever on Mr Barron’s honesty, it is hard to place too much weight on that answer, as it is difficult for him to make an impartial judgment.
Looking at Mr Barron’s circumstances, his gross income is perhaps $40,000 -$50,000 annually; the annual benefit for the financial year 2012-13 was $15,110 (T10). Even with other benefits added in, child care seems a very large proportion of Mr Barron’s income and it is entirely credible that the payments as they fell due could present him with a significant cash flow problem.
The benefit in question is clearly aimed at vulnerable children at a critical stage of their development, and it is surely preferable to be cautious about assuming that the Barrons would continue to send the child to child care regardless. I found Mr Barron to be sincere and concerned and a witness of truth. I find that if the benefit had been denied him the most probable outcome is that the child’s time at child care would have been cut back.
Was the child at risk of serious abuse or neglect?
I therefore have to consider whether the child was, in the April-June 2014 quarter, at risk of serious abuse or neglect, taking the Guide into account in that process. The case law is of little help in addressing this question. There is only a single reported decision relating to this provision: Larcombe and Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 648. That decision is of limited relevance to the present case because the facts of the matter were significantly different and did not raise the same issues.
A first question is whether the word ‘serious’ is intended to qualify both ‘abuse ‘ and ‘neglect’. The phrase as it occurs in s 81(3) could be understood to mean ‘serious abuse or serious neglect’ or else ‘neglect or serious abuse’. I am in no doubt that the former is the intended meaning; it was open to the legislature to adopt the latter approach to drafting if that was the intended meaning. There is no apparent reason why a distinction should be made between the seriousness of the abuse and the seriousness of neglect attracting eligibility.
The question of abuse does not arise in this case: whether or not the child has been abused in the past, there is no suggestion that there is a current risk of abuse. The question is therefore limited to whether there was a risk of serious neglect.
Part C.6 of the Guide deals with the risk of serious abuse or neglect in kinship or foster care. It notes at the outset that eligibility for SCCB may arise where a child ‘is at continuing risk of abuse or neglect in their current foster or kinship/relative care placement’. A table then presents ‘some circumstances where children in foster/kinship care may/may not be eligible for SCCB’. The relevant parts of the table for present purposes are as follows (original emphasis):
Circumstances
Comments on Eligibility for SCCB at Risk
Ongoing impact of the abuse or neglect on a child after they have been removed from the situation.
Not eligible.
While child remains very vulnerable this is not the intent of SCCB or legislative base as abuse or neglect is not current.
Foster/kinship carer is seeking additional (financial) support
Not eligible.
While child remains very vulnerable they are not at direct risk of abuse and neglect.
These table entries present a problem of consistency with the statute. Although they need to be understood in the context of the preambular text, there remains a risk that these entries could encourage a decision-maker to apply the wrong test or to overlook relevant questions. The first of the above entries, in the right hand column, is drafted as if the test is whether there is abuse or neglect currently occurring, and without the qualifier ‘serious’; yet the statute sets ‘a risk of serious abuse or neglect’ as the test. Second, the table does not encourage the decision-maker, in the first entry, to consider those cases where despite the removal of the child from a situation of risk there is either a continuing risk or a new risk, although at least the first of those possibilities seems to be contemplated in the preambular text to the table. Similarly, the assessment of a request for further financial support from the carer would need to be considered in the context of whether that support was necessary to prevent or avoid a risk that fell within the statutory test. If so, it would seem that in the absence of that additional support, a risk of the kind contemplated by the statute might arise.
The Secretary argued that in the table the left hand column is to be understood as the only relevant circumstance – so in the first entry the risk has been removed, and in the second the carer is seeking support, and no other relevant circumstances obtain. That seems a strained understanding, and it is not clear that that is how someone using the Guide would understand it. It also reduces the utility of the table for circumstances like the present, when other considerations must be taken into account.
Accordingly, it would seem that the Guide allows room, or ought to allow room, for an assessment of current circumstances not against the broad exclusions set out in the table, but against the statutory test itself: in current circumstances, is the child at risk of serious abuse or neglect?
Was the child at risk?
It is common ground that if the child stops attending child care there will be consequences: she will eat less, her sleeping will be affected, and she will not be socialised as effectively. Her eating seems likely to be the primary issue here, with reduced weight gain and further developmental delay. Thus there is clearly a risk if she were to stop attending: is this the kind of risk provided for in the statute? Do these likely consequences constitute a risk of serious neglect?
The Secretary argued that the legislation required the underlying circumstances to be the source of the neglect. The dictionary definition of neglect implied that there was an omission by the carer, a failure to meet a need. The Secretary contended that was not the case here. There was no basis for a broad construction of the provision; it was simply a matter of meeting the criteria. The provision was aimed at a particular situation, which should be understood in the context of child protection as it is understood by those in that field, for example in the States and Territories
In the Secretary’s contention there was evidence of an eating disorder, but no evidence that child care was the only remedy. The care provided by the Barrons seemed to be attentive to the child’s needs, and it cannot be assumed that they would not be able to address the eating disorder in other ways. The Secretary further encouraged Mr Barrron to seek reassessment for child care benefit (as opposed to special child care benefit), as his income has dropped and he may now be eligible.
Some of the Secretary’s arguments can be immediately rejected. How the provision of this kind of benefit is understood in child care circles is obviously important but it is not something I can take into account unless that understanding is reflected in the statute or, consistently with the statute, in the Guide. Whether the Barrons might find some other means of addressing the child’s eating disorder is again outside the statutory scheme, which makes no provision for the examination of alternatives to SCCB in addressing a risk of serious abuse or neglect. Mr Barron’s eligibility for child care benefit is something he may wish to explore, but it is not something I can take into account. The scope of my inquiry is limited to whether the child is at risk of serious neglect.
Was the child at risk of neglect?
Turning then to that question, how should ‘serious neglect’ be understood? The Secretary has argued first that the words should be given their ordinary meaning, but has also pointed to the definitions of ‘neglect’ used by the NSW Department of Family and Community Services. These two arguments are not completely consistent unless the NSW Department has adopted the ordinary meaning of the words. Principles of statutory construction suggest that the words should have their ordinary meaning unless they are given a specific and technical meaning in the statute. That is not the case here, and so ‘serious’ and ‘neglect’ should have their ordinary meanings.
The Guide suggests that the ordinary meaning of ‘serious’ is ‘significant, not slight or negligible’. The Secretary suggests that the Macquarie Dictionary definition of ‘neglect’ should be adopted, namely ‘pay no attention to; disregard’; ‘to be remiss in care for or treatment of’ (Macquarie Dictionary online edition). While caution is needed in relying on dictionary definitions, I think the Secretary’s suggested meanings capture what is the usual understanding of the word in this kind of context.
It is accepted that the child has foetal alcohol syndrome; that poor early parenting has left her with an eating disorder; that she ‘has had severe issues with nutrition’ (R1); that she has ‘poor oral intake at home’; that it is ‘important for her to develop good eating habits as she is in the most important time of her development’; that if she were withdrawn from child care ‘her health would be put at risk’, and that ‘she could become malnourished’ (T6). Her child care centre believes that without child care she is ‘vulnerable to potential health risks such as stress induced anorexia’ (T6).
The Guide provides in Appendix D, among other things, a list of risk factors and protective factors for children with regard to neglect. Among the social risk factors is ‘social isolation and limited access to support networks’. The factors are intended for use in a supplementary context and the Guide makes it clear that they are not in themselves determinative. They are not very useful, in the present perhaps atypical circumstances, in deciding whether the kind of risk provided for in the statute is present.
The Secretary argues that ‘neglect’ must arise because someone is neglecting the child, and that is not so in this case because the Barrons are good carers. I am not sure that our understanding of the word is so narrow. If someone is unable to supply a level of care and attention, and the child suffers as a result, in my view that would fall within the normal understanding of the word: that child could be described as suffering from neglect in that aspect of their life. Their carer, through inadequate resources, would have been ‘remiss in care for or treatment of’ the child. I have accepted that the Barrons would be unable to supply child care at current levels if denied SCCB. It is clear to me that the child would be at risk of neglect in the absence of the benefit, and the provision of the benefit would allay that risk. That is surely what this part of the FA Act sets out to achieve.
Was the child at serious risk?
The statute not only requires that there be risk of neglect, but there be risk of serious neglect. The seriousness of neglect is to be judged by the likely consequences; it is those consequences that distinguish a trifling neglect from one that is significant. In the current circumstances, it is accepted that the child might become malnourished if she did not have the benefit of the child care environment. Malnutrition surely falls within the usual understanding of what is ‘significant, not slight or negligible’.
I find that the child is at risk of serious neglect.
Conclusion
The FA Act is beneficial and remedial legislation. It is well understood that such legislation is to be interpreted generously so as not to deny the benefit to those for whom it was intended, provided the construction is reasonably open on the words of the statute: IW v The City of Perth (1997) 191 CLR 1. The construction of s 81(3)(c) I have preferred is in my view reasonably open and would provide the intended benefit in circumstances where both the statute and the Guide contemplate its provision.
The Secretary was keen to ensure that the Guide was applied in the making of this decision. I have done so, but have encountered some difficulties, in particular with the table in Part C.6. The Secretary may wish to consider whether the first two entries in that table might by suitable redrafting avoid the risk of encouraging decision-makers to apply a test that departs from that required by the statute.
DECISION
The decision under review is affirmed.
I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Mark Hyman, Member ................................[sgd]........................................
Associate
Dated 24 October 2014
Date of hearing 22 September 2014 Advocate for the Applicant Will Sharpe Solicitors for the Applicant Sparke Helmore Lawyers Respondent In person
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