AZA v Department of Family and Community Services [2014] NSWCATAD 82 | Case summary

NCAT Administrative and Equal Opportunity|2013-11-13

THE APPLICANT'S EVIDENCE 40The applicant relied upon two Affidavits. Both those Affidavits had a number of attachments to which we will refer. By that material the applicant responds to the allegations made against her. We will consider the applicant's response to the allegations in order and in the detail provided. 41The applicant explains that when she struck the child L on her face with her hand, she was in the process of smacking her on the leg due to the child misbehaving in the car. She says that she was in a state of panic and distress, she opened the back door and she smacked the child on the leg and in that process she struck the child on the face with her hand. In cross-examination the applicant said she was in a 'highly distressed state'. 42With respect to the incident at the bus stop where it is alleged that the applicant put the child L, then aged 6, out of the car and made her stand at the bus stop and told her that she was not wanted - the applicant agrees that on one occasion when she was driving the car, the child was throwing a tantrum, she stopped the car, she exited the vehicle and walked to the rear passenger side and tried to talk to the child. She says the child exited the vehicle herself walked past her and sat at the bus stop, which was five metres away. She stated that later the child walked back to the car and they drove away. 43With respect to the allegation that the applicant punished L by putting her in a darkened room and not allowing her out, the applicant says that L was having a tantrum and the applicant requested that she go to her room until she calmed down. L continued to leave her room. The applicant says she contacted a family day carer support person who advised her to hold the doorknob to keep the door closed. She says that she kept the door closed while talking to the child to keep her calm. She says that at no time was the child in the dark. The applicant says that she reassured the child she was on the other side of the door and when she calms down she will open the door. She says the child calmed down after about 2 minutes and left the room and ate her dinner. At the interview that was held with the applicant on 24 May 2013 it was noted that the family day care support person was at the meeting and that she says that she did not tell her to hold the door but she did tell her to leave the child in the room. At this same meeting, the applicant explained an event where L was locked in the car in the evening and refusing to get out of the car. The applicant stated that she left L in the car and walked inside. The applicant said that she checked on the child and after a while the child agreed to come inside. 44In response to allegations that she was pulling the child's hair, the applicant says that on occasions when she was doing the child's hair and securing the bun on the back of the hair, the child bent down to pick up an item from the floor and in so doing, her hair was pulled as the applicant was still holding the bun. The minutes of the meeting of 24 May 2013 record the applicant saying to L that she either brush her hair at night or 'we can cut your hair'. 45In response to the allegation of videoing the child, the applicant confirmed that she had done this. She says it was made to show the child the damage she had made to her room whilst having a tantrum. She said that the family day care worker had recommended that videoing during a tantrum and showing the behaviour was a tried and tested strategy. She says the video was never shown to anyone other than the child and herself. 46The applicant stated that the challenging behaviour of the child L increased after D had left the placement. She said that she had raised her voice at times and had sworn but not at the children. The applicant considered that the major reason why she was not coping was because of the loss of her "son" in January 2013. 47The applicant states in her affidavit that there was only on one occasion where the child E did not have his lunchbox with him and that was because he had forgotten to place his sandwich in his lunchbox. In the notes of the meeting of 24 May 2013, the applicant is reported to have said there were 3 times when he went without his lunch. 48With respect to the respondent's concerns with the applicant's home environment, the applicant says that she had made arrangements for the damage to the home to be repaired, but it took longer than anticipated. The applicant says that she sought assistance from the Department to pay for the repairs but was refused. It is noted that the foster child, who is said to be responsible for much of the damage in the home, left the home in January 2013. The home visits occurred throughout early 2013. The tradesperson that the applicant sought to repair the damage at the home provided a statement dated 28 October 2013. He was not cross-examined, presumably he was not required for cross-examination. He states that he had been requested to do the work but unfortunately due to commitments from his then employer, he was unable to attend to the job. It seems that the work on the house has subsequently been completed including the repairing of the pool gate. 49The notes from the meeting on 24 January 2013 indicated that the applicant confirmed that L's room had no light and no light globe, that an electrical cord lay across the door, that E's room had no light and no light globe, that the ceiling fan was in reaching distance from the top bunk, that the bottom bunk was an empty wooden frame, that there was a broken drawer on the floor with rusted nails exposed, that the children's play room was cluttered, that the pool fence had not been fixed at the time and that a dirty mattress and broken door lay in the front yard.

FINDINGS AND ORDERS 50The onus falls on the applicant to satisfy the tribunal that the care and attention provided by her to the children in her care was of an adequate standard and would in the future be of an adequate standard such that should the children be placed back into her care there would not be an unacceptable risk that the children would be exposed to abuse or neglect. The respondent did not ask the Tribunal to make a positive finding that the allegations concerning AZA be proven. Many of the allegations made were conceded by the applicant to have occurred and in circumstances which, she attempted to explain. 51The issue for determination in these proceedings is not whether or not the various allegations can be proven. The issue is whether or not there is an unacceptable risk to children or young people that they would be exposed to neglect or abuse should the children be restored to the care of the applicant. The respondent determined that the risk was unacceptable. We have to determine if, on the evidence now available, the respondent made the correct and preferable decision. The assessment of that risk involves an evaluation of the nature and degree of risk and whether, with or without safeguards, it is acceptable (Warsow v Warsow [2010] FamCA 591 as referred to in Fairfield City Council v WI [2012] NSWADTAP 39 at [50]). The assessment of that risk requires an objective consideration of the nature of the allegations, the circumstances in which the allegations were made, the nature and content of any response from the applicant to the allegations, and the nature and content of any investigation by the respondent in the context of the relevant legislative framework. 52After having had regard to the evidence and submissions and the circumstances of the case, we find that the decision not to restore the children to the care of the applicant to be the correct and preferable decision. 53The removal of young children from the care of a long-term carer is a decision which must be taken with caution and consideration. We do not ignore the opinion given by the assessor in 2012 that should the placement break down the children would find it difficult to cope with the attachment disruption to the applicant as the primary carer. However we have determined that on balance the children would be at a greater risk, both immediate and long term, remaining in the care of the applicant than if that placement was disrupted. 54We were not impressed by the evidence that the applicant gave in response to the allegations raised regarding her care of the children. The applicant did not show any tangible insight that the circumstances of her care for the children at the relevant time required attention. Nor did she appear to consider the impact of her behaviour, her action and in some cases lack of action, on the children. 55The applicant's case seemed to be that because of the breakdown in the placement of D in January 2012, that she was not coping, that she was suffering grief and loss over him leaving her care and that as a result, this impacted on her ability to properly care for the children L and E. 56The applicant submitted that when she had struck L on her face with her hand she was in the process of smacking her on the leg due to her misbehaving. The use of corporal punishment of any form by a foster parent on a foster child is unacceptable and falls well below the standard of care that should be provided to vulnerable children in care. 57The applicant agrees there was an incident at a bus stop involving L, but does not agree with the version of events given by L to the officers of the respondent. The applicant agrees that she punished L by putting her in her room and holding the door restraining her from leaving the room. She does not agree the room was darkened although at the time it appears there was no light nor light bulbs in the room. The applicant identified an occasion one evening when L would not get out of the car. The applicant's response to the situation was to leave her in the locked car, unattended for a period of time until the child agreed to come inside. 58The applicant agrees that she may have pulled L's hair but describes the circumstances as a consequence of L bending down to pick up an item off the floor. She did not agree that she 'dragged' L from room to room by her hair. She agreed that she had videoed L during a tantrum citing advice from a family day care worker that this was a 'tried and tested' strategy of child discipline. 59It is not clear whether or not the videoing of a young child during a time of tantrum is an accepted method of disciplining the child. We do not consider that restraining a young child in a room or leaving a young child unattended in a vehicle to be accepted discipline methods for young children. There is no doubt that young children of 4 or 5 can present unique and challenging in terms of behaviour and discipline needs. However, the approach taken by the applicant in her disciplining of a foster child placed in her care is unacceptable. 60In response to the allegations of the poor home environment, the applicant stated in the May 2013 interview that the state of the home was due to the placement breakdown of D. The applicant states that she had 'no control' over the tradesperson as to when he completed his work with respect to the repairs. We do not agree. At any stage she could have engaged alternate tradespeople to complete the work. She made no response to the allegations concerning the state of the yard. She disputes that the beds had no sheets. She provides a number of photos that show some bedding on some beds. She provides photos of wall areas that are clearly damaged. A very serious issue in this case is that a pool gate has been left broken for a period of months in circumstances where there were 2 young children on the property. 61By her evidence the applicant is critical of the behaviour of the officers of the respondent who came to her home for a home inspection. She describes their behaviour as inappropriate. She agreed that she swore at the caseworkers. She says she apologised for this. She does not address the allegations that the home environment was reported as being consistently unkempt for a period of months during the first half of 2012. She agreed that she swore in front of the children but not at the children. 62With regard to the allegation that the applicant left the child in the care of persons not authorised, the applicant confirmed the occasions when that had occurred and provided an explanation for her actions. The applicant states that she made a decision not to purchase a booster seat for the child after she had a conversation with a family day carer support person who is reported to have said to her: "I have lots of kids who are really big and I do not use a booster seat ...". 63The applicant relied upon a report from a clinical psychologist dated October 2013. This this psychologist opined that the applicant presented with acute adjustment disorder with mixed anxiety and depression and stated that the applicant reported to her that she was not coping well in the months leading up to the two young children being removed from her care. The psychologist further states that the removal of the children exacerbated her psychological difficulties and her mood was very low and level of distress and anxiety was significant. Quite clearly the applicant was having considerable difficulties at the time that the two young children were taken from her care. 64The applicant attached a document at the hand of Jacqueline Burns, Senior Clinician Macarthur Sexual Assault Service. It was difficult to glean from the two page document what opinion Ms Burns was giving, but the impression is that Ms Burns was of the opinion that if the applicant's grief and loss over the loss of C and subsequently D was acknowledged she may not have deteriorated and the removal of the other children may well have been avoided. We do not know what information Ms Burns had in the preparation of the report. We are not assisted by this opinion. 65The applicant further relied upon a one-page document, which appears to be a statement from the foster father RN in a handwritten document where he states that L never said anything to him on a supervised contact visit that the applicant had hit her or pulled her hair. He says that L always talked about the applicant in a loving way. 66It cannot be said that this is case of isolated and unique incidents of poor hygiene in the home environment or isolated responses to a situational stress. The evidence discloses concern regarding the care of the children by the applicant over a period of years. Despite one of the recommendations made in 2012 that the applicant undergo further training provided to foster carers, no evidence was provided by the applicant that she had undergone any training. 67In conclusion, having regard to all of the evidence and submissions with regard to all of the allegations made against the applicant, we find that the respondent's decision not to restore the children to the applicant is the correct and preferable decision.

Orders 68The decision not to restore the subject children to the care of the applicants is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 June 2014

STATUTORY PROVISIONS 9The decision the subject of these proceedings is a decision taken under the Children and Young Persons (Care and Protection) Act 1998 ("the CYPCP Act") and regulations. 10The objects of the CYPCP Act are set out at s.8 and provide as follows: (a)that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and (b)that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and (c)that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment. 11The principles to be applied in the administration of the CYPCP Act are contained at s.9 and provide as follows: (1) This Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount. (2) Subject to subsection (1), the other principles to be applied in the administration of this Act are as follows: (a) Wherever a child or young person is able to form his or her own views on a matter concerning his or her safety, welfare and well-being, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child or young person and the circumstances. (b) In all actions and decisions made under this Act (whether by legal or administrative process) that significantly affect a child or young person, account must be taken of the culture, disability, language, religion and sexuality of the child or young person and, if relevant, those with parental responsibility for the child or young person. (c) In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child's or young person's development. (d) If a child or young person is temporarily or permanently deprived of his or her family environment, or cannot be allowed to remain in that environment in his or her own best interests, the child or young person is entitled to special protection and assistance from the State, and his or her name, identity, language, cultural and religious ties should, as far as possible, be preserved. (e) If a child or young person is placed in out-of-home care, arrangements should be made, in a timely manner, to ensure the provision of a safe, nurturing, stable and secure environment, recognising the child's or young person's circumstances and that, the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement. (f) If a child or young person is placed in out-of-home care, the child or young person is entitled to a safe, nurturing, stable and secure environment. Unless it is contrary to his or her best interests, and taking into account the wishes of the child or young person, this will include the retention by the child or young person of relationships with people significant to the child or young person, including birth or adoptive parents, siblings, extended family, peers, family friends and community. 12Chapter 8 of the CYPCP Act provides for the creation of a high standard in the provision of out-of-home care, a model for the organisation of out-of-home care for children and young people and clarifies the roles and responsibilities of those involved in out-of-home care for children (s.134). 13The respondent, Director General, Department of Family and Community Services is the state government department that exercises 'parental responsibility', provides services and promotes the development of policies and procedures with respect to children the subject of the statutory child protection system. 14The CYPCP Act defines a designated agency as the organisation that arranges the provision of out-of-home care (s.139(1)). The designated agency that places a child or young person in out-of-home care of an authorised carer has a responsibility to supervise the placement (s.140). Pursuant to Chapter 8 Part 4 of the CYPCP Act the authorised carer of a child or young person has defined authority with regard to the daily care and control of the child and with regard to physical discipline of a child or young person. 15The CYPCPA Act and Regulations make provision for the making and determination of applications for the authorisation of persons as authorised carers (s.137(2)(a)), for the imposition of conditions of authorisation (s.137(2)(c)) and for the cancellation or suspension of an authorisation (s.137(2)(e)). The Children and Young Persons (Care and Protection) Amendment (Out-of-Home Care) Regulation 2003 provides for the authorisation of authorised carers and sets out the requirements and the code of conduct for authorised carers (now repealed and replaced by Children and Young Persons (Care and Protection) Regulation 2012). Regulation 31 provides for the cancellation or suspension of the authorisation of an authorised carer. 16The decision to remove children from the daily care and control of a foster carer is reviewable by this Tribunal (s.245 (1)(a) and (c) CYPCPA read in conjunction with s.38 Administrative Decisions Tribunal Act 1997 and s.28 Community Services (Complaints, Reviews and Monitoring) Act 1993). 17In conducting this review, the Tribunal stands in the shoes of the decision maker and is required to determine what is the correct and preferable decision having regard to all relevant material. We may have regard to all material that was relevant at the time the original decision was taken as well as any further material that is relevant as at the time of the hearing (Administrative Decisions Review Act 1997 ss.63 and 115; YG & GG v Minister for Community Services [2002] NSWCA 246 at [25]). 18On review, we may decide to affirm the decision, to vary the decision, to set aside the decision and make a decision in substitution for it, or to set it aside and remit it back to the decision maker (Administrative Decisions Review Act 1997 s.63(3)).

AZA v Department of Family and Community Services

At a glance

Court

Decision date

Source

Judgment (4 paragraphs)

Parties

Cases Cited (2)