CBF v Tamworth and Armidale Aboriginal Children's Services - [2016] NSWCATAD 103 - NSWCATAD 2015 case summary — Zoe

NSWNSWCATAD

CBF v Tamworth and Armidale Aboriginal Children's Services

[2016] NSWCATAD 103

NCAT Administrative and Equal Opportunity|2015-11-05|Before: Young P

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2015-11-05

Before

Young P

Source

Original judgment source is linked above.

Judgment (20 paragraphs)

[1]

The Applicant's evidence about events preceding the children's removal from the Applicant

In an affidavit dated 3 September 2015 the Applicant raises matters to the following effect: 1. The letter sent to her on 17 February 2015 did not include the specific allegations made against her. 2. The reasons for the removal of the children cited in the letter sent to her on 24 March 2015 were not raised with her on 17 February 2015. 3. She was not given a proper opportunity to respond to allegations of unauthorised people having contact with the children. 4. The investigation by TAACS of her alleged mistreatment of the children was conducted after the children were removed from her. 5. On the day of the alleged mistreatment: 1. The children were misbehaving at the dental clinic. The dental technicians expressed the view that the children were behaving and wanted to give them a reward, however the Applicant said she did not want the children rewarded for bad behaviour. 2. Child A was having an x-ray and Child B tried to get back into the x-ray room. She grabbed Child B by the jacket to pull her back. She did not pull any child to the ground and did not pull a child's hair. 3. She believes that the witnesses had colluded because of her disagreement with the dental technician.
The Applicant gave sworn oral evidence to the following effect regarding some matters raised in the documents outlined above. 1. She said that her male friend had a WWCC clearance and was waiting for his clearance number at the time he was visiting her house. 2. She denied hitting the children with an egg flip. 3. In respect of the complaints about her alleged behaviour towards the children at the dental clinic: 1. Child A was sitting in a chair with her legs open and she reprimanded her about that. 2. When Child A was having her teeth x-rayed, Child B "took off" and she "grabbed her on the collar" and pulled her back because she was running towards the room where the x-rays were being taken. 3. The only person present at that time was a woman who was in front of her and Child A, about four metres distant, who could not have seen her hand pulling the child's collar. 4. The dental technician expressed the view that there was nothing wrong with the children's behaviour and tried to give them a reward but the Applicant intervened and said that she did not reward bad behaviour because they would get into trouble at school.

[2]

The Respondent's evidence about matters since the decision to remove the children

A record of the meeting with the Applicant on 24 February 2015 records matters to the following effect: 1. When she was asked about her behavioural expectations of the children the Applicant said words to the effect that she expects general "kid behaviour" and the children are well behaved. 2. When she was asked about dealing with behaviours at home, the Applicant said that she has a "naughty chair" in the dining room with two minute "time outs". 3. When she was asked if she allows the children to be curious and whether she answers questions from them, she replied with words to the effect that they ask questions which she answers honestly, that they read books and have a craft box. 4. When asked: 1. Whether she ever gets frustrated or annoyed with the girls; and 2. If so, what behaviour prompts this and how she speaks to the children 3. She said words to the effect that: 4. It's hard to get frustrated because they are her nieces. 5. When Child A gets too loud she asks her to sit beside her. 6. If she is tired they have "time out"' on the lounge and if they see her cry she tells them that she is OK. If she is frustrated she has a "smoke" but she does not usually get frustrated with the girls. 1. When asked if she has ever raised her hand to smack the children she said she didn't even smack the children". She is said to have raised her hand physically up near her face to demonstrate how she raises her hand and that is enough to influence their behaviour but she has never smacked the children. 2. When asked if she has ever smacked children with her hand she said that she has never smacked Child A or Child B. 3. When asked, she denied ever having smacked the girls with a wooden spoon, egg flip or any other implement. 4. When asked if she had ever missed or neglected to follow up medical appointments, she said she missed one speech pathology appointment and there was a visit with her mother that she rescheduled. 5. When asked if she had ever grabbed either of the children by her hair and pulled backwards and down, she said she would never have done that, and she had never smacked her own children. 6. When asked about her male friend she named him, but said that he has not stayed at her house and he had met the children at her mother's house.
The Respondent tendered records of interviews dated 3 March 2015 between a FACS Officer, a TAACS staff member and each of the Reporters. 1. Reporter 1 made statements to the following effect: 1. She was taking x-rays at which time Child B was curious and looking in other rooms. Reporter 3 was the person who saw the Applicant pull Child B's hair at that time. 2. Reporter 2 saw the Applicant pull Child B's hair at a different time, when the child was sitting on the Applicant's lap. 3. The Applicant told the children not to speak and said they would go to the naughty chair when they got home. The Applicant told Child B to sit like a lady, which the Reporter thought was inappropriate for the child's age and in her view, the Applicant's expectations of the children's behaviour were too high. 4. In her opinion, Child A was stressed and seemed scared and said that she repeatedly stated: "I've been a good girl". 5. The Reporter was of the view that the children had been well behaved during the visit. She offered them a toothbrush but the Applicant said "No, I don't reward bad behaviour". 1. Reporter 2 said: 1. She saw the Applicant yank at the back of Child's B's hair, and the child's head went back and she cried. 2. She believes that the Applicant's treatment of the children was "unfair" in not allowing them to ask questions, threatening them with the naughty chair when they returned home and telling the youngest child (Child B) to sit like a lady and only speak when spoken to. 3. The Applicant "yanked" Child A by the arm and "yanked her to the ground, hard". 4. In her opinion something was wrong as both girls looked scared and the Applicant pulled the children down aggressively. 5. She recorded the last part of the appointment on her telephone. In two years in the surgery she had not had an experience such as this. 1. Reporter 3 stated: 1. One of the girls was having an x-ray and the Applicant pulled the hair of the other girl who said "ouch". Her head "reefed back" The child started to cry and then stopped crying.
On 6 March 2015 the Applicant attended an interview with the Executive Office of TAACS and another person. The record of that interview provided by the Respondent indicates that matters to the following effect were raised: 1. In answer the question about whether the Applicant's male friend had been coming to her house, the Applicant replied, "he is a friend". She denied knowing that people coming to the house who are over the age of 18 required a WWCC clearance. 2. The TAACS officer explained that children cannot stay overnight with anyone without notifying TAACS and that the person proposed needs a WWCC clearance. 3. The Applicant was asked about her uncle with whom it had been alleged the children had unauthorised contact. She said that he had been in prison and she had not seen him for 2 years. 4. The Applicant denied drinking alcohol excessively at home and said that the children are in bed before she drinks alcohol.
As part of its investigation into the complaints, the Respondent sought information regarding the Applicant from FACS under Chapter 16A of the Care Act. The response is dated 13 March 2015.
The response from FACS indicates that it had received a number of notifications regarding the Applicant's care of the children. These included the following: 1. 28 February 2013: Allegations that the Applicant and her partner use drugs and alcohol and that there is physical abuse. The FACS outcome for this matter was: non-Risk of Serious Harm - contact forwarded. 2. 30 April 2013: Allegations that the Applicant supplied her son with marijuana and allowed him to smoke it whilst in her care. 3. 17 April 2013: 1. Allegations by the children's birth parents that: 1. the Applicant had allowed unsupervised contact between the children with their great grandfather who had recently been released from custody on a murder charge. 2. The Applicant regularly has no food in the house and goes out at night drinking. 1. In respect of each of these allegations, the FACS report states that FACS Tamworth was providing support regarding the placement of the children and the most recent home visit did not identify any concerns. 1. 20 May 2015: Information received from a real estate agent that the Applicant had been given an eviction notice due to ongoing complaints from neighbours about noise, parties and fighting and unsubstantiated allegations of drugs and alcohol in the home and prostitution. The real estate agent and another housing provider had reported that the Applicant had previous tenancies terminated due to tenancy breaches. 2. 3 October 2014: 1. A caller said he/she had witnessed concerning behaviours by the children. The issues were classified as "non risk-of-serious-harm" and were not followed up. The issues included: 1. Acting protectively around food and trying to steal from other's plates as if they had insufficient food. 2. Child A behaving fearfully about possibly being hit after she dropped food on the floor. 3. Child A saying that she would get her older cousin to "bash" someone. 4. The children seemed insecure in their relationships and often said that they loved their grandparents. 5. Child A did not want to return to the Applicant's home and said she did not want to live with the Applicant and did not love her anymore. Child A was said to have been concerned when told that she must return to the Applicant's house. 6. The children appeared healthy but seemed to have insufficient clothing. 1. The FACS outcome for this matter was: non-Risk of Serious Harm - no follow up because they were allegations only. 1. 27 October 2014: a report that Child B had bruises on her forehead. The matter was investigated and closed.
In an affidavit dated 27 August 2015, the Executive Officer of TAACS refers to the following two matters that were included in the FACS responses received on 13 March 2015. The Respondent submits that these matters had not been properly finalised by FACS when the management of the placement was transferred to TAACS: 1. 21 April 2014: It was reported that the Applicant's mother, and not the Applicant, collected the children from an overnight contact visit with their parents and grandfather and it was alleged this was so that the Applicant could go out "partying". Concerns were also raised that the Applicant had not advised FACS that Child B had a broken leg. In respect of those matters the FACS note was to the effect that the children were in need of care and protection and there would be ongoing work undertaken by them. 2. 6 November 2014: It was alleged that the Applicant often had parties and bought her son drugs and alcohol. It was alleged that the Applicant had hit Child A and that she had also screamed at Child A who had gotten onto the ground, put her hand over he head and said "no, no" . The FACS response was that further assessment was to be undertaken due to a risk of serious harm.
The Applicant provided the Tribunal with a copy of a letter dated 3 December 2014 from the Manager, Reportable Conduct Unit, FACS, which notes that four allegations that had been made against the Applicant had not been sustained, and which indicates that the meaning of "not sustained" is that on balance the evidence did not support a finding that the alleged conduct had occurred. These allegations were: 1. She provided her son with marijuana and allowed him to smoke it whilst in her care. 2. She neglected the children by allowing them to have contact with their great grandfather who had recently been released from custody charged with murder. 3. She neglected the children by allowing them to have unsupervised overnight contact with their biological parents contrary to their care plan. 4. She smacks Child A if the child says "naughty" words.
In her sworn evidence the Applicant asserted that it was necessary that the allegations included in the s.16A response from FACS be found to be unsubstantiated before the management of the placement was transferred to the Respondent.
Attached to the Applicant's affidavit of 3 September 2015 is a series of email exchanges between FACS staff members regarding the transfer of the management of the placement to TAACS which would be delayed pending the completion of a FACS Reportable Conduct Unit investigation. The most recent of those emails, from the Manager of Casework at the Tamworth FACS office indicates that she would discuss the matters with "(first name of Executive Officer) from TAACS" and get her thoughts "because these are malicious complaints. She may be happy with a copy of this email for transfer".
The TAACS Executive Officer said in her sworn evidence that she had not been aware of the allegations against the Applicant until receiving the responses to the s.16A application. It was put to her in cross-examination that she had known about these matters previously as indicated in the emails attached to the Applicant's affidavit, however she said that whilst she acknowledged the email path she had not been advised of the specific allegations.

[3]

Contact Reports and Case Notes

The Respondent provided copies of Contact Reports subsequent to the removal of the children. The notes include the following matters: 1. A note of a visit by a caseworker to the children on 20 February 2015 when they were staying with a temporary carer refers to the children being concerned that if they were naughty they would be smacked. 2. A case note indicates that in a telephone call on 25 February 2015 the temporary carer said that the children had mentioned the Applicant "only once or twice". 3. A Child Contact Note headed "Changing Carers" notes that on 27 February 2015 the children met their current carer and left the TAACS office for her home. 4. A case note dated 2 March 2015 indicated that Child B had been a little teary the previous evening but had settled. 5. Notes of a contact visit between the children and the Applicant and others on 6 March 2015: 1. Record that Child A was reluctant to commence the visit, but Child B was happy and ran to cuddle and kiss the Applicant. 2. According to the caseworker during the visit the Applicant was chastising Child A for certain behaviours but did not chastise Child B for similar behaviours. 3. At the end of the visit Child B cried when told that she was going on a "holiday" again rather than returning home with the Applicant. 4. At the end of the visit Child A said that she wanted to see "mum and dad". 1. Notes relating to the car trip home from the contact visit on 6 March 2015: 1. Refer to Child B saying she wanted "mummy" and stating that she meant not "mummy and daddy" but the Applicant (using her pet name for the Applicant). 2. Note that Child A said "we are going home to (the current carer) and "she is better". 1. The record of the interview between the Applicant and TAACS and FACS officers on 6 March 2015 also refers to the contact visit held on 6 March 2015 in the following terms: 1. After the interview the interviewer approached Child A to take her to a contact visit with the Applicant and grandmother. Child A said "no" and then asked if she was to be taken home. The interviewer said no, that she was still on a "holiday". Child A did not proceed to the contact visit room. 2. Child A was told that another worker would be in the room and Child A held that worker's hand and entered the room. She needed encouragement to enter the room and cuddled with the grandmother. 3. At the commencement of the visit, Child B cuddled with the Applicant. 1. A case note dated 17 March 2015 is to the effect that the childcare centre advised that Child B had settled well into the centre and was happy with no behaviours of concern. 2. At a meeting between the Applicant, her mother, the TAACS executive officer and FACS Casework Manager on 18 March 2016: 1. The Applicant is reported as saying that at the previous contact visit, Child A said that she did not want to go to the current carer's house. 2. The Applicant and her mother expressed concern at how the children were dressed and the Applicant said that Child A had food on her dress and looked as if she had not been bathed. 1. Notes of a contact visit on 18 March 2015: 1. Include comments by the case worker to the effect that the Applicant's attention seemed focussed on Child B and describes the actions and reactions and statements of the Applicant and her mother in such a way that they seem to have been more critical of the behaviour of Child A than of Child B. 2. State that during the visit Child A said "I didn't miss any of you". She also said that she wanted the Applicant, her mother and the Applicant's daughter to go home and that she wanted to go to the home of (the current carer). 3. At the end of the visit Child B appeared upset. 1. Notes of a contact visit between the children and the Applicant and others on 21 April 2015 include that towards the end of that visit Child A told the Applicant that she did not want her to leave yet. During that visit the Applicant's mother commented on ringworm on the jaw of Child B. 2. Notes of a home visit to the current carer by the caseworker on 22 April 2015 include: 1. That the lounge room was cluttered and the carpet was very dirty and stained and had food squashed into it. 2. There were a number of dogs in the house, including on the children's bed. 3. The carpet in the children's room was very dirty, as was the wall, which had hand/finger prints all over it. 4. The ringworm on the face of Child B was considered less red than on the previous day. 5. Child B said that she loves being at the current carer's house and Child A said that she loves playing with the dogs and animals at the home of the current carer who takes them to lots of places. The children referred to the current carer as "aunty". 1. Notes of a home visit on 11 May 2015 include that the children's room was "neat and tidy". 2. Notes of a Child Contact visit on 26 May 2015 note that: 1. The Applicant's mother expressed dissatisfaction with how the girls were dressed. 2. In the opinion of the caseworker, the girls were well dressed for the visit. 3. The children became upset when the Applicant and others left the contact visit without saying goodbye. 1. Notes of a Child Contact visit on 29 October 2015 include comments to the effect that: 1. Child A seemed to engage in the visit less than Child B who also seemed to be praised and attended to more than Child A. 2. During the visit Child B referred to the Applicant as "nanny" and the children also referred to her as "aunty" and seemed not to recall a number of people in their extended family. 3. Child A commented that the children sometimes call the Applicant "mum". 1. Notes of a contact visit on 22 December 2015 indicate that Child A called the Applicant "mummy". 2. Notes of a contact visit on 27 January 2016 record that: 1. The Applicant showed the girls photographs of her dog giving birth and made what the casework manager considered to be inappropriate comments about the birthing process. 2. The casework manager also intervened when the Applicant's mother showed Child A photographs of the Applicant's residence and their previous rooms. 3. At the end of the visit the children needed to be encouraged to say goodbye to the Applicant's mother and aunt. 4. When the Applicant said goodbye, Child B said for her to "come back later".
In respect of the visit on 27 January 2016, The Applicant's mother gave sworn evidence to the following effect: 1. During the visit the Applicant gave details about the birth of the pups, including that she needed to pull them out of the mother and she thought the comments were inappropriate. 2. Child B said to the Applicant that she wanted to come home and that is was said loudly enough for the Guardian to hear the comment.

[5]

Psychologist Report

The report of clinical psychologist dated 20 October 2105 provides information and opinion to the following effect: 1. His report is informed by a telephone conversation with a TAACS manager, a copy of four supervised contact reports from 26 May 2015, an interview with the children in his office and a home visit with the children at the home of their current carer. 2. The request to undertake the assessment was received on 12 October 2015 and the report was requested by 21 October 2015. Whilst that time frame is "less than optimal" for a thorough consideration of the referral questions, the clinical psychologist states that he has addressed those matters in the general content of the assessment and also more specifically in his report. 3. When asked to trace an outline of her hand and attach names to the fingers, Child A mentioned her current carers and then the dog at the property of her current carers. Child B named her birth mother and father and then added a dog and a cat. 4. Neither of the children responded when asked directly if they enjoyed living with the current carers. 5. During a home visit the interactions he witnessed between the current carer, her husband and the children were appropriate and the children often sought out close and appropriate physical contact with the current carers. 6. The current carer's husband said that if the children need "quiet time" they are taken to their room. He said they do not smack children or use a 'naughty corner'. 7. The current carer's husband said that the children had asked questions that suggested that they might have experienced smacking and the naughty corner in their former placement and that Child A had said that when in that placement if they neglected to clean their rooms they were smacked. 8. The current carer said that when Child B came to the house she wore "Kimbies" but both girls were able to toilet themselves at the time of the interview. 9. The children usually called the current carers 'aunty' and 'uncle' and sometimes 'mum' and 'dad' though the current carers discouraged those terms. 10. The current carers expressed the view that the children were "too comfortable with people, particularly males". 11. In respect of specific referral questions it was difficult to ascertain the views of the children about their placements because of the time limitation for the assessment. However, within that context: 1. The work undertaken with the children suggested that they were comfortable with the current carers and when asked to list names of significant people neither child listed the name of the Applicant. 2. The children seem to have developed a strong and secure attachment to the current carer and her husband and were observed to seek them out for physical and emotional comfort and appeared well integrated into the extended family of the current carer and her husband. 3. The carer and her husband appeared to respond to the children appropriately in ways that met their needs. 1. In summary, at the time of the psychologist's report on 20 October 2015: 1. The children had been with the current carer and her husband for almost eight months and have had contact with extended family and their previous carers. 2. The children did not express directly or by their behaviour that they did not want to stay with the current carers. 3. The children's level of attachment with the current carers appears to be secure and their needs were adequately met by their carers. 4. The carers have said that they are happy to provide long term care for the children if necessary.

[6]

The views of the Guardian

The Guardian said that she has observed the children on two occasions at the home of the current carer, and also during the contact visit with the Applicant and others on 27 January 2016.
The Guardian said that during her first visit: 1. Child B was playing with a doll, which she hit on the back of the head and said that Aunty (the Applicant) does that. 2. Child A was very subdued during the visit. 3. The children said that they were staying on a farm and were happy to talk about the animals and activities on the farm.
The Guardian gave evidence to the following effect regarding the most recent home visit: 1. The children were "chatty" and played and talked during the visit. 2. The children were affectionate to the current carer and her husband and sat in their laps when talking. 3. During the visit the current carer's husband said that when Child A arrived she used wake up at night screaming and shouting, and that this had recently stopped. 4. The current carer said that the children had had colds and earaches and she takes them to the doctor. 5. When giving instructions to Child A the current carer's husband was gentle but firm. 6. The current carer's husband, who is an Aboriginal man, spoke "Aboriginal English" and spoke about family in a way that it was consistent with Aboriginal culture. 7. When preparing for their contact visit with the Applicant and others the children were "matter of fact" and did not say anything about the proposed visit.
The Guardian gave evidence to the following effect regarding the contact visit on 27 January 2016: 1. She was of the view that the Applicant's description of the dog's birthing process was inappropriate. 2. The children were not upset at the end of the visit. 3. In her opinion the children appeared healthy and well dressed when she visited them.
Under cross-examination the Guardian: 1. Stated that at the end of the visit on 27 January 2016 the children said goodbye and did not cry or want to go with the Applicant and other visitors. 2. Agreed that Child A was crying but said that was because she wanted a toy that Child B had, not because the Applicant was leaving the visit. 3. Said that she did not hear a child say that she wanted to go home and that she was of the opinion that her "ears would have pricked up" had a child made that comment.
When asked her view about the best interests of the children, the Guardian gave evidence to the following effect: 1. Her observations suggest that the children are happy in their current placement. 2. The children are having contact with the extended family of the carer and her husband and Child B has play visits with a great niece of the carer and her husband who is the same age as Child B. 3. In her view the current carer was gentle and able to explain things appropriately to the children and this was in contrast to the inappropriate communication by the Applicant regarding the birthing process of the dog. 4. She believes that the children have an established routine at the home of the current carer. 5. She does not believe that the children would cope with a change such as being returned to the Applicant. 6. The current carer told her that she was able to continue to care for the children forever. 7. She believes that if the children remain with the current carer the monthly visits with the Applicant and other family members should continue. 8. If the children were to return to the Applicant she believes that their bond with the current carers is such that they should have visits with them.
Under cross examination the Guardian said that she recommended the continuation of the monthly visits with the Applicant because the children are used to them and that she believes that as the children get older they could decide for themselves if the want the visits to continue.

[7]

Additional matters raised by the Applicant

The Applicant provided references from: 1. A friend of 22 years; 2. The preschool at which the children attended when they were in her care; 3. Neighbours; and 4. Approved carers who cared for the children when they were first removed from their mother.
The references attest to the love of the Applicant for the children and her care for them.
In particular, the reference from her friend of 22 years states that she has spent much time with the Applicant and has never witnessed physical abuse of the children.
The Tribunal took these references into consideration in reaching its conclusions.
In her sworn evidence, the mother of the Applicant said that: 1. In her opinion, since the children have been with the current carer: 1. They are always untidy. 2. Child A is "always sick". 3. On one visit Child B had an earache and a temperature. 4. The children had also had head lice. 1. By way of contrast, when they were with the Applicant, the children were always "spotless". 2. She believes that the children's behaviour has deteriorated since they have been with the current carer in that their manners were lacking, they ate "rubbish" before their meal and argued over toys. 3. In her view, if they had an established routine with the current carer they would have good manners and Child A would not look so tired. 4. She would not continue to visit the children if they remain with the current carer because in her opinion the children become too upset when they visit. She said that whilst Child A did not say she was upset during the most recent visit, Child B did so.
The Applicant's aunt gave evidence to the following effect: 1. In her opinion, during the visits Child A is often sick and Child B "grizzles" to come home. 2. She believes the children are dirty. 3. At the end of the most recent visit, she kissed both children 'goodbye' and Child B asked her if she was coming back.
In cross-examination the solicitor for the Respondent put to Applicant's aunt that the observations of the Guardian and the caseworker who was observing the visit did not support her evidence that she had kissed the children goodbye and that the children were upset at the end of the visit. The Applicant's aunt said said that they were lying and that she did kiss the girls and that Child A was upset at the end of the visit, though Child B was not.
The Applicant's aunt said words to the effect that she believes that the Guardian is biased. In respect of this matter: 1. She said that the Guardian had contact with the Respondent and its solicitors just prior to the hearing. 2. When asked by the Tribunal if she was aware of any prior relationship or animosity on the part of the Guardian that would cause her to have a bias or conflict, she said that she was not aware of any reason. 3. Under cross examination she agreed that the Guardian had also spoken to the Applicant prior to the hearing, that she had not heard the discussion between the Guardian and the Respondent, and she was not suggesting that anything "untoward" had happened.

[8]

The Applicant's submissions

In written and oral submissions the solicitor for the Applicant submits that the Applicant was not afforded procedural fairness by the Respondent. In relation to this matter the Applicant's solicitor submitted that: 1. The Respondent did not advise the Applicant of the reasons for the removal of the children. The letter to the Applicant dated 17 February 2015 merely stated that there was an allegation of physical abuse and no specific details were provided. Consequently, the Applicant was not given the opportunity to respond to allegations on that day. 2. The Respondent's letter dated 17 February 2015 indicates that the Respondent had made the decision to remove the children without any prior opportunity being given to the Applicant to respond to the allegations. At the meeting between the Respondent and the Applicant on 24 February 2015 the Respondent again failed to put the allegation squarely and relied on a series of questions that alluded to the allegations. 3. The Respondent questioned the Reporters on 3 March 2015, which was after the interview with the Applicant. Accordingly the Respondent could not have put the detail of the allegations to the Applicant. 4. It was not until the meeting between the Applicant and the Respondent on 6 March 2015 that the Respondent raised issues about the allegation of the children having contact with unauthorised people. These issues were not raised in the letter from TAACS dated 17 February 2015. 5. The allegations regarding social media and drinking alcohol and partying at the house were not put to the Applicant. 6. In the letter dated 24 March 2015 the Respondent referred to grounds having been taken into consideration in the decision-making but did not provide any evidence of why the physical assault matter was substantiated and did not provide any specific details of the allegations.
In relation to the claim that the Applicant had left the children in the care of her mother, who did not possess a WWCC clearance, the Respondent's "contact record" dated 7 January 2015 indicates that the Respondent was informed that the Applicant's mother does have a WWCC clearance.
The grounds relied upon by the Respondent as set out in its letter dated 24 March 2015 are arbitrary and so wide in scope as to be difficult for the Applicant to respond.
The Respondent's claim that it was directed by FACS to remove the children has not been supported by evidence of any direction by FACS and in any case any direction by FACS would have been based on information provided by the Respondent, as the Respondent was the agency with the day-to-day responsibilities for the children.
In their letter dated 27 May 2015, the Respondent refers to 9 allegations of a similar nature between 2013 and 2015. These matters were not raised with the Applicant at prior meetings and, in any case, Johnson J took into account all allegations up until 27 August 2013 in his decision in the Care and Protection Proceedings and allegations from 27 August 2013 to November 2014 were found to be unsubstantiated.
The Respondent also deposed in the affidavit dated 27 August 2015 that the Applicant had a history of physical abuse. During the hearing, however, the Respondent has conceded that the allegations were not substantiated when FACS investigated them. This reflects on the Respondent's credibility in those processes.
The accuracy of the report of the clinical psychologist is questionable because: 1. The Applicant was not given an opportunity to contribute to the referral questions or the assessment. Whilst the clinical psychologist assessed the interaction of the children with the current carers he did not conduct a home visit with the Applicant to assess the care arrangements or assess how the children interacted with the Applicant. 2. Due to the short time available, the clinical psychologist was unable to conduct an accurate assessment. As he states in this report, the views of children were difficult to ascertain in the time available and there could be other information of which he was unaware. 3. The Respondent's credibility is reduced by its insistence that the result of its internal review was posted to the Applicant on 27 May 2015 whereas the entries in the Respondent's mail ledger for that day appears to have been altered.
The orders of Johnston J on 27 August 2013 noted the proposals in the permanency plan in respect of: 1. Permanent placement of the children with the paternal aunt. 2. A minimum regime for contact with other family members. 3. The referral of parties to mediation to assist with family relationships in the long-term interests of the parties.
The Applicant claims that His Honour allocated the care of children to her by way of that decision. The Respondent, however, argues that this was not the case but rather His Honour merely noted the permanent placement plans and this does not constitute an order. In respect of this matter the Applicant argues that: 1. It is dangerous and unreasonable to claim that the Judge's direction does not have to be followed merely on the basis that it was not a formal order. 2. The Respondent's claim does not take into account the history and circumstances of the children coming into the care of the Applicant. 3. Whilst Johnston J did not specifically order that the children be placed with the Applicant, he had intended for the children to be placed with the Applicant and made a notation because the FACS permanency plan referred to such an arrangement. 4. The difference between an "order" and a "notation" is a "technical difference" only. 5. In reaching his decisions, His Honour took into account the following allegations made against the Applicant: 1. That the Applicant has a violent temper and goes out partying and brings men home and inadequately supervises her own children and provides them with alcohol and allows her son to smoke marijuana. 2. The Applicant's relationship with (named person) is unstable, volatile and potentially violent. 3. Allegations of inappropriate behaviour on the part of (named person) include drug taking and drinking, and this person has a criminal history. 4. Reports of inappropriate behaviour by the Applicant's son, including drug and alcohol abuse. 5. The closeness of the Applicant to her mother, who has a history of drug taking and violence, and who once attacked the grandfather. 6. Claims that the Applicant's motives for wanting the children are insincere and are driven by a desire for welfare money. 1. In relation to the allegations listed above, His Honour formed the view that each of the assertions and allegations had not been substantiated and amounted to conjecture, or had been motivated by spite, and were lacking in probity. 2. His Honour also was of the view that the children had developed a positive attachment with the Applicant and her partner and that he was satisfied that she would provide a safe, caring and nurturing environment for the children.
The Applicant argued that the Tribunal should find that the Respondent has not afforded the Applicant procedural fairness and as such the Respondent's decision to remove the children was without justification, without basis and an error, and in order to remedy the error the children should be returned to the Applicant.

[10]

The Submissions of the Respondent

The Respondent submitted that the children were placed under the parental responsibility of the Minister pursuant to the order of Johnston J on 27 August 2013 and the day-to-day decisions making about the children was the responsibility of TAACS.
In respect to the Applicant's submissions that the Respondent did not extend procedural fairness to the Applicant, the Respondent submitted: 1. The letter from the Respondent to the Applicant dated 17 February 2015 outlined what occurred and invited the Applicant to a meeting following week. 2. The Applicant attended the meeting where allegations were put to the Applicant relating to: 1. Behavioural expectations of the children. 2. Dealing with challenging behaviours. 3. How the Applicant communicated with the children. 4. Feelings of the Applicant when challenging behaviours may be present. 5. Hitting the children, hitting with a hand, hitting with an implement. 6. Addressing the children's medical needs. 7. Pulling the children by the hair. 8. Questions asked about the Applicant's male friend, including whether he stayed overnight, the interaction he had with the children and whether it was physical. 1. This meeting was on 24 February 2015, seven days after the report was received from staff at the dental surgery, and it is the submission of the Respondent that it acted quickly and without delay in the investigation process. 2. The Respondent then sought s.16A material from FACS which indicated that at the time the children were transferred to the Applicant's care under the management of the Respondent, there were two open reports about the Applicant's care of the children. The Respondent submits that these matters may have been dealt with prematurely to ensure a transition of management to the Respondent with the result that it was placed in a position of having a carer who might not have been approved under its own guidelines. 3. At a second interview with the Applicant on 6 March 2016 further matters were put to the Applicant regarding: 1. Whether she had put information on social media. 2. Further issues regarding her male friend. 3. The WWCC check requirements for anyone coming in contact with children. 4. Queries about relatives and other males in the house. 5. Queries about drinking and partying. 1. The Respondent also interviewed the Reporters and the children. 2. At all times the Applicant was provided with an opportunity to respond to allegations and was provided with procedural fairness.
The Respondent also submitted that: 1. Since the children were removed they have been placed with an authorised carer and the placement has been stable for eight months (at the time the Submissions were filed, being 23 October 2015). The children were enjoying their placement and were progressing well. 2. The contact records of contact between the Applicant and the children since the removal indicate that one child is "scapegoated" in relation to the other, and this is not in the children's best interest. 3. The children appear reluctant to spend time with the Applicant and her family and have indicated that they would prefer to remain on "holiday" which is how they describe their current placement. 4. The application should be dismissed with costs.

[11]

Decision of Johnston J

The Tribunal considered the submission of the Applicant that in removing the children from the Applicant the Respondent had breached an order of Johnston J that the children reside with the Applicant.
In the matter of AQY & AQ v Administrative Decisions Tribunal of NSW & ors [2013] NSWSC 1028 (24 July 2013) the Supreme Court per Campbell J considered whether a decision made by the Minister was a decision "in relation to either the preparation of a permanency plan or the enforcement of such a plan that has been embodied in, or approved by, an order or orders of the Children's Court". In that matter the magistrate at first instances said in his judgement "I am satisfied the Care Plan has adequately and appropriately addressed the issue of permanency planning for (the subject child)."
In AQY (supra) His Honour: 1. Refers to s83(8) of the Care Act, and notes that whilst in all cases of applications for care orders there must be a permanency plan, and that plan must be found to be adequate and appropriate, it is only enforceable if it is embodied or approved in the order of the Children's Court. 2. States further (at paragraph 60) that it is necessary that "a particular proposal, aspect or requirement of the permanency plan is picked up and expressly incorporated into the order of the Children's Court …" and with respect to "approval" of the plan he distinguishes the situation of a court making a finding in accordance with a plan from a court making an order approving the contents of a plan.
In his judgement regarding the children, Johnston J makes orders in which he allocates all aspects of the parental responsibility of the children to the Minister for Family and Community Services. The order makes no reference to the permanency plan. His Honour also includes "notations" referring to the permanency plan and notes that permanent placement of the children is to be with the paternal aunt and that there is to be a minimum regime for contact with other family members.
Taking into account the decision of Campbell J in the matter of AQY (supra) and the wording of the orders and notations in the judgement of Johnston J regarding the children, the Tribunal is not satisfied that His Honour incorporated the permanency plan into the orders, or expressly approved of the plan in his orders.
Having reached the conclusions set out above, the Tribunal is not satisfied that the orders of Johnston J require that the children remain with the Applicant.

[13]

Physical punishment

As indicated above, the Code of Conduct for authorised carers includes that: The use of any physical punishment or coercion, immobilisation, force-feeding, deprivation of food or any punishment intended to humiliate or frighten a child or young person is not permitted
As is outlined in the preceding sections of these Reasons, the material provided to the Tribunal includes a number of references to possible physical means of discipline being used with the children. This includes: 1. The reports by the Reporters to the effect that whilst the children were at the dental surgery, the Applicant pulled the hair of Child B. 2. A TAACS child contact report dated 17 February 2015 reports that Child A said that Child B was smacked "on the bum" when she kicked a ball that broke a lamp. 3. A report of an interview on 17 February 2015 with the children that reports Child A as saying that she was naughty and got hit "on the bum with an egg flip". 4. An allegation made on 6 November 2014 and apparently left open by FACS to the effect that when the Applicant yelled at Child A she put her hands over her head and said "no, no". 5. A note of a visit by the caseworker when the children were placed with a temporary carer to the effect that the children expressed fears that they would be smacked if they were naughty. 6. The comments of the current carer's husband to the effect that the children had asked questions which suggested that they expected physical discipline techniques to be used in addition a 'naughty corner'.
The Tribunal accepts that the only direct evidence of physical abuse of the children by the Applicant is the evidence of the Reporters and the Applicant asserts that they could not have seen what they described because of the layout of the premises and the location of the children and staff at the time. In assessing the evidence of the Reporters the Tribunal takes into account: 1. In their responses to the questions asked at interview on 3 March 2015 each Reporter describes what she saw, except for Reporter One who comments on what she believes others saw and on her own view of the Applicant's expectations of the children. 2. The Reporters were sufficiently concerned to make a formal notification to TAACS and FACS. 3. There was no credible evidence provided to the Tribunal to support the assertion that the Reporters were biased against the Applicant because she had disagreed with them about the children's behaviour. 4. The Reporters were not subjected to cross examination and therefore the Tribunal places less weight on their evidence than it would if they had given oral evidence.
As outlined above, in addition to the evidence of the Reporters, there is indirect evidence that the Applicant has subjected the children to physical means of discipline.
The Tribunal also took into account the Applicant's denials that she has used physical discipline with the children, and the content of the references provided as annexures to her affidavit dated 3 September 2015.
The Tribunal is satisfied that despite the Applicant's claims to the contrary, the evidence supports a conclusion that the Applicant has used physical means of discipline with the children and this is in contravention of the Code of Conduct for carers.
The Reporters described the Applicant as having inappropriate expectations about how the children should behave. The Tribunal places limited weight on those views as the Reporters were not subjected to cross examination and also because there is no evidence that they are experts in what would be age appropriate behaviour for the children. However, in considering whether the Applicant has an understanding of what is appropriate for the age of the children the Tribunal notes that both the caseworker and the Applicant's mother were of the view that the detail she provided regarding the birth of the pups was inappropriate.
The Tribunal is satisfied on the evidence that it is more likely than not that the Applicant lacked a proper understanding of age appropriate expectations about the children.
The Tribunal is also of the view that it is a matter of concern that the Child A said that she kissed the Applicant's male friend on the bottom and on the lips and that both children said he stayed overnight at the Applicant's home, whilst this was denied by the Applicant.
In reaching a decision as to whether or not the children should be removed from the Applicant, the Tribunal notes that Code of Conduct for Authorised Carers includes that the authorised carers are to be respected for their opinion and consulted about decisions about the care of children in their care and should be provided with support and training in ways to encourage positive behaviour of children and how to respond appropriately to challenging behaviours.
The Tribunal is of the view that it was open for the Respondent to provide the Applicant with support and training regarding how to address the children's behaviour and also about contact with others, including her male friend. There is no evidence that the Respondent sought to do so.
In considering the failure of the Respondent to provide the Applicant with support and training the Tribunal notes that the Applicant at all times denied that she used physical means of discipline, and that she had inappropriate expectations of them for their age, and that the male friend stayed in the house.
The Tribunal is satisfied that taking into account the Applicant's denial that these issues existed, there is some doubt about the likely success of support or training.
In any event, the task of the Tribunal is to decide the correct and proper decision at the time of the hearing. By the time of the hearing, the Applicant had not received training in the matters outlined.

Parties

Applicant/Plaintiff:

CBF

Respondent/Defendant:

Tamworth and Armidale Aboriginal Children's Services

Legislation Cited (4)

Children and Young Persons (Care and Protection) Act 1998(NSW)

Administrative Decisions Review Act 1997(NSW)

Civil and Administrative Tribunal Act 2013(NSW)

Community Services (Complaints, Reviews and Monitoring) Act 1993(NSW)

Cases Cited (3)

Role of Tribunal

The role of the Tribunal in hearing and determining the application is to decide the correct and preferable decision, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law (Administrative Decisions Review Act 1997, s 63(1)).
The Tribunal sits in the shoes of the Respondent and considers the matter afresh at the time of the hearing.
The guiding principle to be applied to practice and procedure in the Tribunal "…is to facilitate the just, quick and cheap resolution of the real issues in the proceedings…" consistent with the objects and principles under the Act (Civil and Administrative Tribunal Act 2013, s 36).
The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or the Civil and Administrative Rules 2014 do not otherwise make provision. The Tribunal is not bound by the rules of evidence, except in relation to privileged disclosures (Evidence Act 1995, s 128) and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form (Civil and Administrative Tribunal Act, s38 and s 67).
Procedural fairness and other aspects of natural justice, of course, apply to these proceedings and the Tribunal has a discretion to act on material that is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties (Commission for Children and Young People v FZ [2011] NSWCA 111. Roberts v Balencio (1987) 8 NSWLR 436).

(1987) 8 NSWLR 436

[2013] NSWSC 1028