In his written submissions, the solicitor of the applicant contended that on the evidence before us at the hearing and our positive findings in regard to the applicant's care of the child we could comfortably find that the applicant was a 'suitable person' to be authorised as a carer. In support of this contention, the solicitor relied on specific sections of the transcript of the hearing on 8 and 9 March 2019, the fact that there was no evidence of the Child having been placed at risk and the applicant's acknowledgement that she should have disclosed her relationship with Mr AB and her regret in failing to do so.
The solicitor for the applicant went on to contend that, in the circumstances, the conduct of the applicant in having maintained a relationship with Mr AB after October 2018 alone was not sufficient to warrant a cancellation of her authorisation.
[2]
Barnardos' submissions
The solicitor for Barnardos submitted that, there were a number of bases to support our original decision in affirming its decision to cancel the applicant's authorisation.
In this regard it was submitted that the applicant was no longer a 'suitable person' to be authorised as a carer. As to the test of a 'suitable person' the solicitor relied on the remark made by the Appeal Panel, at [37] of its first decision, that the terms 'suitable person' and 'fit and proper person' were interchangeable. As to the meaning of the latter term, the solicitor referred to the meaning given to that term in Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127, at [9] and McBride v Walton, NSW Court of Appeal. Unreported, 15 July 1994, [21] to [26] and [59] to [73].
The solicitor went on to identify conduct of the applicant which she contended demonstrated that she was not a 'suitable person', which included the following:
1. the applicant's failure to report to Barnardos the 2018 police investigation that involved Mr AB;
2. her continuance of a relationship with Mr AB (including ongoing contact with the Child) until Barnardos intervened on 10 January 2019;
3. her ongoing contact with Mr AB on 12 January 2019 and again on 29 January 2019, despite the Safety Plan that she had signed; and
4. being on notice as to the character and violent tendencies of Mr AB following his alleged assault on her in early September 2017, yet deciding to resume a relationship with him subsequently.
We have disregarded the remaining grounds as they seek to re-argue findings we made in our earlier decision and which were not the subject of appeal. Nor were they criticised, or commented upon by the Appeal Panel.
In conclusion the solicitor for Barnardos submits that:
… [there) is no trust between the Applicant and the Respondent, such that the integrity of the relationship is so diminished/fractured that it cannot be repaired. It follows that the correct and preferable decision is to formally sever that relationship by affirming the Respondent's decision in respect of the carer authorisation decision. …
Although this is not a specific ground on which an authorisation can be cancelled, we appreciate Barnardos has at all times contended that the applicant cannot be trusted. In her evidence, the applicant accepted that she made mistakes. She did not seek to blame anyone but herself and sought to be given another chance.
[3]
Our findings in our earlier decision
It is convenient to briefly set out the findings we made in our earlier decision.
[4]
Finding as to credit
In regard to the credit of the applicant as witness, at [130] of our earlier decision, we found:
130 First, we find that the applicant did on the whole give open and frank evidence. On a number of occasions her evidence was against her own interests. We did not find that she was at all evasive or deceptive in the responses she gave to questions asked of her by the solicitor for the respondent.
[5]
Findings in regard to the applicant's relationship with Mr AB
At [133] to [52] of out earlier decision, are our findings in regard to the applicant's relationship with Mr AB and her failure to disclose that relationship to Barnardos when asked about people with whom she had been in a significant relationship. At [140], we said:
140 We accept the evidence of the applicant that her 2015 expression of interest was genuinely made on the basis that she alone was seeking to be authorised as a prospective carer and adoptive parent. Her motivation for doing so was recorded as being the break-up of her long term relationship with her last partner with whom she had hoped to have children. There is no evidence that she was otherwise motivated, or that she intended, wanted or sought to share this role with Mr AB, who, at the time, was married and living with his wife and children.
At [147] to [150] we said:
147 … [in] her 13 September 2017 statement to police (EX A1, 70), the applicant described her relationship with Mr AB as being a boyfriend/girlfriend relationship, we do not find that her responses in the Authorised Carer Review were either deliberately false, or false. On the evidence before us, there were no significant changes in her personal or family circumstances of the kind described in the Review form. Nevertheless, on the evidence of the applicant, her relationship with Mr AB appears to have intensified from March 2017, when, to the knowledge of the applicant, Mr AB's wife left the family home with their children. It was after this date that the applicant said she stayed with Mr AB at his home for several nights every week. We understand the applicant to say that even though there was more regular contact the nature of the contact did not change. In her oral evidence, the applicant did acknowledge that she cared for Mr AB but she did not at any time consider him to be a partner or life partner.
148 We understand the position of the respondent that it has an expectation that persons expressing an interest in becoming a prospective authorised carer and adoptive parent disclose all aspects of their personal life, including any current or long-term sexual relationship with any other person who might have direct contact with any child that is placed into the care of that person. Depending on a person's individual circumstances, this expectation will be easily recognised.
149 In our opinion, on the evidence before us, at the time the applicant lodged her expression of interest, she did not have this understanding, but nevertheless answered the questions asked of her truthfully to the best of her understanding. She was a first time applicant, with no children of her own, and at no time was she asked whether she was involved in any current relationship of a personal or sexual kind with another person. This is understandable, as her expression of interest was made on her behalf alone and she identified her support network as being her family and a former long-term partner. Nevertheless, we consider this an appropriate question that should be asked of all prospective applicants.
150 In her oral evidence, the applicant acknowledged this to be the case and, given the circumstances she now finds herself in, she wishes she had done so as she now understood why the respondent would need to know such information.
At [151], we concluded by saying:
151 Accordingly, for the reasons set out above, while we agree that information of this kind was relevant personal information about the applicant, we do not find that it was information the applicant was specifically required or requested to disclose. Nor, in our opinion, on the evidence before us, do we find that the applicant was deceptive, or deceitful in failing to disclose this relationship in her expression of interest or during her subsequent assessment. We accept her evidence that she did not consider this relationship as a 'significant relationship' within the context of the questions asked of her by the respondent. Nor is there any evidence that Mr AB played a role in the applicant's decision to lodge her expression of interest, or that he was involved in or influenced the decisions the applicant made about the day-to-day care of the Child.
[6]
Findings in regard to the applicant's failure to report the September 2017 alleged assault
At [154] we found that the September 2017 alleged assault by Mr AB of the applicant had not occurred in the care environment as she did not have a child in her care at that time. We also noted that:
… [In] her oral evidence, the applicant acknowledged the importance of the respondent being informed of such incidents, but in this case, at the time, she did not believe it was relevant because she did not have a child in her care and she was so shaken with what had happened that she did not intend to see Mr AB again.
[7]
The October 2018 incident and lack of insight
While we did not accept the contention of Barnardos that the applicant was 'directly involved in a Police homicide investigation', at [156] and [157], we found:
156 … At [In] our opinion, regardless of what she believed, once she had been informed that Mr AB was a person of interest in a homicide this was an incident of such seriousness that she should have realised that she needed to report this to the respondent, as it and not she was the person responsible for supervising the placement of the Child on behalf of the Minister, who had parental responsibility of the Child. The respondent also had many more avenues open to it to assess risk to the Child if the applicant were to [have] any further contact with Mr AB. The fact that Mr AB was one of several persons of interest did not, in our opinion, make any difference.
157 In this case there was even more reason to report the incident to the respondent, as the police had taken her mobile phone to verify what Mr AB had told police his movements had been at the relevant time. While the applicant explained that she specifically asked police whether she needed to be concerned about having contact with Mr AB, in our opinion, this did not absolve her from reporting the incident to the respondent.
At [162] and [167] we agreed with the contentions of Barnardos, that the applicant's failure to inform it of the October 2018 incident 'demonstrated a lack of insight and understanding of her role as an authorised carer to ensure that the safety, welfare and well-being of the Child is paramount at all times'.
At [163] to [166], we noted the following:
163 … [what] is of concern is the number of times the applicant met with Mr AB after 26 October 2018. She met with him six times and of these, five occurred in December. On her own evidence this was a significant increase in the number of meetings she had with Mr AB in any month since she had reconnected with him in December 2017.
164 From the material produced under summons by Family and Community Services and NSW Police, Mr AB's separation from his wife appears to have been very acrimonious where police were called on a number of occasions over during 2016 and 2017 (EX R5, R6 and R7). The material also indicates that there were issues concerning Mr AB's mental health and his life style choices. It is the evidence of the applicant that she was unaware of these issues, other than Mr AB having difficulties in his separation with his wife. She said she understood the applicant and his wife had separated in 2016 but continued to live in the same home until March 2017.
165 We note that in the 3 January 2019, Safety Assessment Decision Report of Family and Community Services, concerning Mr AB's contact with his own children, he was assessed as not posing any risk to their safety (EX R8, 35 - access to this EX was limited to the Tribunal and the legal representatives of the parties). …
166 While the evidence would indicate that Mr AB did not pose a real and appreciable risk to the safety of his own children, this does not absolve the applicant of her responsibility as the authorised carer of the Child to protect her from any possible risk of harm. Based on the information she was given by the Detective Sergeant in October and November 2018, it was incumbent on her to ensure that the Child was safe. While her evidence in these proceedings is that she understands that any risk to her was a risk to the Child, in our opinion, this shows a lack of understanding of her protective role as an authorised carer. … Hence, it is difficult to see how she took protective action to minimise her contact with Mr AB after being told he was a person of interest in a homicide.
At [169] we concluded that: 'during November and December 2018, the applicant demonstrated a serious lack of insight and understanding of her protective role as an authorised carer. Had she informed the respondent of the October 2018 incident this would not have arisen'.
[8]
Meaning of suitable person
As noted above, a ground for cancelling a carer's authorisation is that the carer is no longer a 'suitable person' person to be an authorised person: Care Regulation, cl 42(a). At [37] and [38] of its first decision, the Appeal Panel said the following in regard to the meaning of suitable:
37 In other legislation, the term "fit and proper person" rather than "suitable person" is sometimes used. We see these terms as interchangeable. In discussing the meaning of the expression "fit and proper person", Toohey and Gaudron JJ said in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321:
The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
38 In this case, although the Tribunal did not use the word "improper", it was clearly determining whether any untoward conduct had occurred. That is a legitimate question in the context of deciding whether a person is no longer a suitable person to be an authorised carer. The Tribunal does not have to go further and determine whether such conduct is likely to occur again. …
These remarks were made in the context of the applicant's ground of appeal that we had erred in relying on the objective seriousness of the applicant's conduct, rather than asking ourselves whether, given what happened, would the applicant be a suitable person to be an authorised carer in the future.
As we noted in our earlier decision, at [90], cl 30(4) of the Care Regulation provides that a designated agency must not authorise an applicant for an authorisation, unless the agency has determined that the person is capable and suitable to be an authorised carer. Clause 30(5) of the Care Regulation prescribes a number of matters the designated agency is to be satisfied of, or obtain, before it before it determines whether a person is capable and suitable to be authorised as a carer. As indicated by the Appeal Panel, the prescribed matters are consistent with those relevant to the 'fit and Proper test' as described in Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.
As we have noted above, at [43], cl 30(5) of the Care Regulation prescribes the matters a designated agency must be satisfied of and taken into account before determining that a person is capable and suitable to be an authorised carer. The matters of which the designated agency is to take into account includes, the functions of an authorised carer and any risk that the applicant would be unable to properly perform those functions, any risk to a child or young person were the applicant to be authorised, and any relevant information available to the agency: Care Regulation, cl 30(5)(f).
In this case, the out-of-home care the applicant was authorised to provide was statutory out-of-home care, which is taken to have commenced immediately the Child was placed into her care and from that time she became personally responsible for carrying out the functions and duties of an authorised carer: Care Act, s135A(2)(b) and Care Regulation, cl 36.
Section 157 of the Care Act sets out the care responsibilities and functions of an authorised carer. These are subject to a written direction given by the designated agency or the Children's Guardian. Included in the functions and responsibilities is consenting to medical and dental treatment not involving surgery on the advice of medical practitioner or dentist, correct and manage behaviour (subject to the regulations), give permission to participate in school activities organised for the child (e.g. excursions) and to make decisions that are required in the day-to-day care and control of the child in care of the authorised carer.
In exercising his or her functions and responsibilities, an authorised carer is subject to the supervision of the designated agency that placed the child in the carer's care: Children's Guardian Act 2019 (NSW), s 82 (prior to the commencement of the Children's Guardian Act, a similar provision was contained in s 139 of the Care Act).
As we have already noted, any decision (including any action) made by an authorised carer about the child, in his or her day-to-day care and control of the child, are to be made under the principle that the safety, welfare and well-being of the child is paramount: Care Act, s 9(1). That is, the role of an authorised carer is protective, including protecting the child from risks of harm. That role is also consistent with the s 8 objects of the Care Act and s 134 of Chapter 8 of the Care Act.
As noted by the Tribunal, in AIR v Department of Family and Community Services [2013] NSWADT 141, at [70], authorised carers are required to provide the children in their care with a safe and stable and nurturing environment.
[9]
The October 2018 failure to notify incident
We reiterate our findings, made in our earlier decision, about the applicant's obligation, as an authorised carer, to notify Barnardos of the information she had been given by the NSW detective, in October 2018, that Mr AB was a person of interest in a homicide, together with the request of the detective to give him her mobile phone so as to assist in his enquiries: see at [156], [157], [162], [163] and [166] of our earlier decision and at [65] to [66] above.
The evidence is that the applicant, and on some occasions together with the Child, had regular contact with Mr AB during 2018, with the most recent contact being an outing with the Child, on 13 October 2018. The evidence is that, at the time the detective approached the applicant, she had no intention to cease her contact with Mr AB. However, on being informed that Mr AB was a person of interest in a recent homicide, this, on any view, raised a serious question about Mr AB posing an unacceptable risk of harm. Given the seriousness of what the applicant was told and the fact that she and the Child had been having regular contact with Mr AB, in our opinion, she should have notified Barnardos immediately. In our opinion, her failure to do so demonstrated a serious lack of judgment.
As pointed out by the solicitor for Barnardos, in September 2017, the applicant herself had been the victim of Mr AB's violent conduct. On that occasion she reported the alleged assault to police, yet when informed that Mr AB was a person of interest in a homicide she did not notify Barnardos, the agency responsible for the supervision of the Child's placement.
In her evidence at the hearing, the applicant acknowledged that a person of interest in a homicide is a potential risk to her and through her a risk to the Child: see at [113] of our earlier decision. In our opinion, this demonstrated a misguided view of the Child being protected by her being present if Mr AB were to become violent. Her experience in 2017, should have told her otherwise.
[10]
The maintaining the relationship conduct
We reiterate our findings at [166] and [167] of our earlier decision that the applicant's ongoing contact with Mr AB after she had been informed that he was a person of interest in a homicide was a further demonstration of her lack of insight as to her protective role as an authorised carer. In our view, in light of the increased number of contacts with Mr AB from November to December 2018, it was a serious lack of insight, almost a disregard of her role as an authorised carer.
In her evidence at the hearing (see at [113] of our earlier decision), the applicant having acknowledged the risk Mr AB posed to herself and, hence the Child, went on to say that she decided, in response to that risk, to minimise Mr AB's contact with the Child by not allowing Mr AB to visit her home when the Child was also present. Her understanding of the Child not being present was that the Child was not physically within the presence of Mr AB, yet her evidence was that on two occasions the Child was asleep which Mr AB was at her home.
Once again, in our view, the applicant's focus on minimising contact between the Child and Mr AB, rather than no contact, was misguided, and, also demonstrative of the applicant having a a lack of judgement and a lack of insight into her protective day-to-day role as an authorised carer with a foster child in her care.
[11]
Is the applicant no longer suitable to be an authorised carer?
As noted above, to be suitable to be an authorised carer, a person must be able to properly perform, to a high standard, the functions of an authorised carer. Those functions mainly relate to decisions made and actions taken during the course of the day-to-day care and control of the child placed into the authorised carers care. In making these decisions and taking these actions, the safety, welfare and well-being of the child are to be paramount so as to protect the child from a risk of harm.
For the reasons set out above, we are critical of the applicant failing to notify Barnardos, in late October or early November 2018, that the detective had informed her that Mr AB, a person she knew and had contact with the Child, was a person of interest in a recent homicide.
It is the conduct of the applicant in continuing to have contact with Mr AB, after being told he was a person of interest in a recent homicide, which we find to be of greatest concern. In our opinion, that conduct, on its own, establishes that the applicant is no longer suitable to be authorised as a carer, because she failed to perform a core function of an authorised carer, namely to protect a child placed into her care day-to-day care from a risk of harm. Instead, she exposed the Child to a risk of harm, a risk of harm that only ended with the intervention of Barnardos on becoming aware of the applicant's relationship with Mr AB and that he was a person of interest in a recent homicide.
[12]
What is the correct and preferable decision?
We note that even where one or more of the grounds for cancellation or suspension has been established, the power to cancel or suspend an authorisation under cl 42 is nevertheless discretionary.
There is no dispute that the applicant loved the Child and that the Child had flourished in the year and three months she was in the care of the applicant. We also found, at [173], that there was no evidence of any actual harm to the Child.
As we have already noted, we found the applicant to be open and frank in her evidence.
At [170] of our earlier decision, we also found that the applicant's conduct and her lack of insight as to her role as an authorised carer was largely due to her naivety and a misguided sense of loyalty. We reiterate that finding and have also question her judgment when faced with a challenge, which authorised carers are often faced with; see at [73] of our earlier decision.
At [171] of our earlier decision, we accepted that:
171 ... the applicant deeply regrets that she did not disclose, from the beginning, her relationship with Mr AB. She also regrets that she did not report to the respondent the subsequent 2014 assault and the October/November 2018 incident. …
Even though we accept that the applicant regrets what she failed to do, this does not mean that she has the requisite insight and judgment to deal with the many challenges an authorised carer soften faces in the day-to-day care of a foster child. Nor is there any evidence of such. Hence, we find that the correct and preferable decision is to cancel her authorisation.
This does not mean that at some time in the future, the applicant is prevented from again seeing authorisation. However, before she does so, she must be able to demonstrate that she does have a proper understanding of the role, functions and responsibilities of an authorised carer.
[13]
Conclusion and Orders
For the reasons set out above, we find that the decision of the respondent to cancel the applicant's authorisation is the correct and preferable decision: ADR Act, s 63(1).
On this basis, it is unnecessary for us to reconsider our earlier decision to affirm the decision of the respondent to remove the Child from the applicant's care
Hence, we make the following orders:
1. A hearing is dispensed with pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW).
2. The decision of the respondent to cancel the applicant's authorisation is affirmed.
3. The decision of the respondent to remove the Child from the applicant's care 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: 17 December 2020
Parties
Applicant/Plaintiff:
DRZ
Respondent/Defendant:
Barnardos Australia
Legislation Cited (10)
Children and Young Persons (Care and Protection) Regulation 2012(NSW)
Children and Young Person (Care and Protection) Regulation 2012(NSW)
Children and Young Person (Care and Protection) Act 1998(NSW)
On 18 January 2019, the applicant, DRZ, made an application seeking external administrative review of the decisions of the respondent, Barnardos Australia ('Barnardos'), to:
1. remove the foster child ('the Child') that had been placed into the day to day care of the applicant in September 2017. Barnardos had placed the child with the applicant under its FaF program (i.e. the Find a Family permanent carer with a view to adoption program);
2. cancel the applicant's authorisation as a carer under cl 42 of the Children and Young Person (Care and Protection) Regulation 2012 (NSW) ('Care Regulation'): see also, s 137. To have the Child or any other foster child placed into her day-to-day care, the applicant needed to have her authorisation as a carer restored: Children and Young Person (Care and Protection) Act 1998 (NSW) ('Care Act'), s 136 and 137; and
3. revoke the applicant's approval as being suitable to adopt the Child under cl 50 and 54 of the Adoption Regulation 2015 (NSW) ('Adoption Regulation').
We heard the applicant's application over three days in March 2019.
We determined the applicant's application on 7 August 2019 (DRZ v Barnardos Australia [2019] NSWCATAD 157 ('our earlier decision')) and made orders affirming the decisions of Barnardos to cancel the applicant's authorisation and to remove the Child from the applicant's care. We also found that the Tribunal had no jurisdiction to review Barnardos' decision to revoke the applicant's approval as being suitable to adopt the Child.
As she was entitled to do, the applicant lodged an internal appeal against the orders we made: Civil and Administrative Tribunal Act 2013 (NSW) ('NCAT Act'), s 80.
On 17 March 2020, the Appeal Panel upheld the applicant's appeal in part in regard to our decision to affirm the decision of Barnardos to cancel her authorisation: DRZ v Barnardos Australia [2020] NSWCATAP 47 ('the first decision'). However, the Appeal Panel did not make final orders. Instead, it made orders for the filing and serving of submissions as to the orders the Appeal Panel should make.
On 10 June 2020, the Appeal Panel determined the applicant's appeal and made orders, that included the following (DRZ v Barnardos Australia (No 2) NSWCATAP 105) ('the second decision'):
(2) In accordance with this decision, the Tribunal is to reconsider the case based on the evidence before it and the factual findings it made, but without making the "Code of Conduct error."
(3) If the Tribunal sets aside the decision to cancel DRZ's authorisation, it should go on to consider whether the decision to remove from DRZ the responsibility for the daily care and control of the child is the correct and preferable decision. That decision may be made with or without further evidence, as the Tribunal sees fit.
We have now reconsidered the case, as ordered by the Appeal Panel. For the reasons that follow, we find that the correct and preferable decision is to cancel the applicant's authorisation as a carer. Hence, it is unnecessary for us to go on and consider whether the decision to remove the Child from day-to-day care of the applicant is the correct and preferred decision. On the bases of our findings we have affirmed the decisions of Barnardos.