DRZ v Barnardos Australia

Tribunal's decision in more detail

1. The main part of the Tribunal's reasoning is at [168] to [174]: 168 For the reasons set out above, we have found that, in late October 2018, the applicant breached the Code of Conduct in failing to immediately report to the respondent that Mr AB, a person with whom she had a relationship and who had visited her home and had contact with the child, was a person of interest in a homicide. We have also found that this was a serious breach of the Code of Conduct. 169 We have also found 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. 170 In our view, this breach and lack of insight was largely due the applicant's naivety and a misguided sense of loyalty. 171 We accept that 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. However, the question is whether the applicant's breach of the Code of Conduct (compliance with which is a condition of her authorisation) and her lack of insight warrants cancellation of her authorisation as a carer. We appreciate that a decision of this kind will impact on the other decisions of the respondent. 172 We have given considerable thought to this question, but have at all times had regard to the paramount principle in s 9(1) of the Care Act. We accept that there were many factors in favour of the applicant in her role as an authorised carer. However, in our view her conduct in October/November 2018 where she breached of the Code of Conduct and her subsequent conduct in maintaining a relationship with Mr AB were of such seriousness to warrant the cancellation of her authorisation. 173 In making this finding, we do not find that the applicant has in fact posed a real or appreciable risk to the safety of the child, or that there was some ulterior motive in her expression of interest with the respondent. We simply find that given the circumstances of October - December 2018, where the applicant was faced with a challenge of a kind that authorised carers are required to respond to with the s 9(1) paramount principle in mind. Unfortunately, she failed to do so and in our opinion is no longer a person suitable to be an authorised carer. 174 Hence, we find that the decision of the respondent to cancel the applicant's authorisation and the decision to remove the child from her care is the correct and preferable decision: ADR Act, s 63(1). Accordingly, the appropriate order is to affirm the decision of the respondent to cancel the applicant's authorisation and to remove the child from the applicant's care.

Appeal Panel's jurisdiction

1. The Tribunal has internal appeal jurisdiction: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 32. Internal appeals may be made as of right on a question of law, and otherwise with leave of the Appeal Panel: NCAT Act, s 80(2). DRZ appealed on a question of law and sought leave to appeal on grounds other than a question of law. There were eight grounds of appeal. We will not address them in the order adopted by DRZ's legal representatives. Rather, we will begin with the ground of appeal which we have upheld.
2. In its written submissions, Barnardos listed "other reasons" which support the original order. In particular, Barnardos maintained that DRZ was deceptive or deceitful in failing to disclose her relationship with Mr AB. When questioned about this submission, Barnardos clarified that they had not lodged a separate Notice of Appeal. There is no provision for cross-appeals. in those circumstances, we have not addressed this issue.

Leave to appeal on other grounds - grounds 3, 6 and 7

Breach of Carers' Code of Conduct

1. The Tribunal decided at [155] that "the interview with police in late October was an incident which occurred in the care environment" and which DRZ was required to immediately report to Barnardos. At that time, the child had been in DRZ's care for 12 months.
2. At [156] and [157] the Tribunal expanded on its reasoning: 156 On her own evidence in these proceedings, the applicant had recommenced a relationship with Mr AB and met with him 17 times in 11 months. We accept this relationship was not the same as it had been prior to September 2017, but she did meet with him and had been doing so on a relatively regular basis. 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 be 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.
3. DRZ challenged these findings on two bases. First, that the so-called "incident" did not require immediate reporting to Barnardos under the Code of Conduct. Secondly, there was no evidence to support the factual findings. The first point raises an issue as to the meaning of cl 42 of the Care Regulation and the Code of Conduct. That question is a question of law, despite the fact that DRZ characterised it as requiring leave. The second point relates to the sufficiency of the evidence. An appeal on that ground requires leave. As we have decided that the Tribunal misconstrued the Code of Conduct, there is no need for us to address DRZ's alternative submission that there was no evidence to support the Tribunal's finding that the interview with police in late October was an "incident".

Meaning of Care Regulation and Code of Conduct

1. Clause 34 of the Care Regulation sets out the conditions of authorisation. One of those conditions is that the authorised carer must comply with the Code of Conduct for Authorised Carers: Care Regulation, cl 34(4). The Code of Conduct means the code of conduct for authorised carers approved by the Minister . . . and published on the relevant website of the Department, as in force from time to time": Care Regulation, cl 34(5). Breach of the Code of Conduct may lead to suspension or cancellation of the person's authorisation: Care Regulation, cl 42(b).
2. DRZ signed the Code of Conduct on 19 November 2016. It includes thirty-two expectations of authorised carers. Under the heading "Care environment", there are seven expectations listed. The fifth and eighth of those dot points are as follows: • Report immediately to the designated agency any incidents in the care environment or any change in household membership. (Emphasis added) . . . • Provide a care environment where the child or young person is not exposed to physical, sexual, psychological or verbal abuse, ill-treatment or neglect.
3. In relation to the fifth dot point, there is a footnote against the word 'incidents', which states the following: The Children and Young Persons (Care and Protection) Regulation requires an authorised carer to immediately notify the designated agency if any of the following occurs: the child or young person is expelled or suspended from school, absent without permission from care of the carer for a period of 24 hours or more, absent without permission (whether or not while in the care of the authorised carer) from NSW for any period, or suffers a serious accident illness or death, the authorised carer becomes a parent to another child or young person or the authorised carer or any other members of the household are charged with or convicted of an offence for which a penalty of imprisonment for 12 months or more may be imposed.
4. The list in the footnote repeats the substance of the events listed in cl 40 of the Care Regulation which requires a carer to immediately notify an agency if: (a) a child or young person leaves the care of the authorised carer, (b) the child or young person is to be, or has been-- (i) expelled or suspended from school, or (ii) absent without permission from the care of the authorised carer for a period of 24 hours or more, or (iii) absent without permission (whether or not while in the care of the authorised carer) from New South Wales for any period, (c) the child or young person suffers a serious accident, injury or illness, (d) the child or young person dies, (e) the authorised carer-- (i) becomes a parent to another child or young person, or (ii) is charged with or convicted of an offence for which a penalty of imprisonment for 12 months or more may be imposed, or (iii) becomes aware that any members of his or her household have been charged with or convicted of such an offence, (f) a child, young person or other person joins the authorised carer's household.
5. DRZ submitted that the meaning of the word "incidents" in the fifth dot point of the Code of Conduct should be read as limited to those matters listed at cl 40 as described in footnote 3. According to DRZ, the contact by the NSW Police Force was not an incident in the care environment, nor did it result from any incident in the care environment. Consequently, DRZ did not need to report it to Barnardos.
6. Barnardos submitted that DRZ's interpretation of the word "incidents" reads down, or minimises a carer's overall responsibilities. The footnote does not define the word "incidents" and does not limit the matters that meet that description. It is simply a notation as to specific reporting obligations. Reading down the carer's obligation was said to be inconsistent with the principle in s 9 of the Care Act that "the safety, welfare and well-being of the child or young person are paramount".
7. We have not taken into account Barnardos' submissions about DRZ's so-called concessions in cross-examination about the meaning of "incidents". Essentially, the question under consideration is a question of law as to the proper construction of the Code of Conduct. DRZ's opinion about the meaning of those words does not assist us.

Consideration

1. The power of the Governor to make regulations is given by s 264(1) of the Care Act. Section 264(1A) lists particular subjects about which the Governor may make regulations including "prescribing a code of conduct for authorised carers": s 264(1A)(g). Both the Care Regulation and the Code of Conduct are delegated or subordinate legislation. These instruments have legal effect. Courts and tribunals "will endeavour to ascertain the meaning of a document, whether legislative or executive in origin, by adopting broadly the same approach": DC Pearce and RS Geddes, Statutory Interpretation in Australia (9th ed, 2019, Lexis Nexis) at 2.
2. The Code of Conduct is written in a less formal style than legislation. It uses dot points and footnotes. The reporting requirement is expressed as follows: "Report immediately to the designated agency any incidents in the care environment or any change in household membership." The footnote to the word "incidents" explains that the Care Regulation already requires an authorised carer to notify the agency of particular kinds of incidents, and lists those incidents. In the Code of Conduct, the Minister uses similar wording to that used in the cl 40 of the Care Regulation and refers to that provision in the footnote. In that context, the plain meaning of the reporting requirement is that it is identical with the reporting requirement in cl 40 of the Care Regulation.
3. If the reporting requirement were to be read more broadly, it would result in a great deal of uncertainty as to the incidents which are required to be reported. Given that a breach of the code of conduct may result in suspension or cancellation of a carer's authorisation, it would not be expected that such uncertainty was intended. In the absence of clear language to the contrary, the reporting requirement should not be interpreted to require an authorised carer to report a wider range of incidents than that required under the Care Regulation.
4. Our view as to the meaning of this provision is consistent with the paramount principle in s 9 (1) of the Care Act. We note that there is a more general provision in the Code of Conduct to "provide a care environment where the child or young person is not exposed to physical, sexual, psychological or verbal abuse, ill-treatment or neglect." If an incident occurs which exposes a child to such a situation, a carer would be required to notify the agency quite apart from the reporting requirement.
5. This conclusion means that the Tribunal misconstrued the reporting requirement in the Code of Conduct. There can be no dispute that if our interpretation is applied, "the interview with police in late October " was not an incident which DRZ was required to immediately report to Barnardos under the fifth dot point in the Code of Conduct. To the extent that the Tribunal's orders were based on a misconstruction of the Code of Conduct, they cannot stand.

Did the Tribunal apply the correct test?

1. Sub-section s 9(1) of the Care Act states that: 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. The principles and objects of the Care Act "are intended to give guidance and direction in the administration of this Act. They do not create, or confer on any person, any right or entitlement enforceable at law": Care Act, s 7
3. DRZ submitted that in relation to both the cancellation decision and the removal decision, the Tribunal was obliged to accord primary significance to the best interest of the child (Care Act, s 9) and to take into account the mandatory considerations in s 7 and 8 of that Act. DRZ then submitted that, "In regard to each decision, the Tribunal was thus obliged to determine whether or not upholding the decision would be in the best interest of the child."
4. That is not the test. The question the Tribunal must ask itself is whether Barnardos made the correct and preferable decision in cancelling the authorisation and removing the child on the basis that DRZ was "no longer a suitable person to be an authorised carer" or "has failed to comply with any condition of the authorisation." The objective in s 9 should not be substituted for that test.

Did the Tribunal address the wrong question or issue - ground 8

1. DRZ made several submissions about the Tribunal's findings of fact and reasoning under this ground of appeal. We will deal with each point separately.
2. First, the question for the Tribunal was said to be whether DRZ had learnt her lesson, or whether there was a real likelihood that she would, in future, behave in a way that was contrary the child's interests. The Tribunal should have asked itself whether, given what had happened, DRZ would be a suitable person to be an authorised carer in the future. Instead, the Tribunal relied on the objective seriousness of DRZ's conduct. At the hearing, DRZ's legal representatives submitted that this was the "nub of the appeal."
3. The second point DRZ made under this ground of appeal was that the Tribunal did not address "in any fashion" the extensive evidence of DRZ expressing contrition for these errors, explaining the events that had led to her failure and her clear testimony that she had learnt her lesson and gained insight into the manner in which she must deal with Barnardos in future. The Tribunal attributed DRZ's failure to a misguided sense of loyalty and naivety. The evidence overwhelming demonstrated that there was no ongoing risk to the interests of the child. DRZ characterises this reasoning as the Tribunal punishing her for a failure of judgment.
4. 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.
5. 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. In any case, the Tribunal did address the fact that DRZ regretted her conduct and had learnt her lesson. At [171] the Tribunal found that DRZ "deeply regrets" both that she did not disclose, her relationship with Mr AB from the beginning or after the police contacted her in October 2018. These aspects of the ground of appeal are not made out.
6. Finally, DRZ submitted that there was no evidence to support the finding of fact at [16] and [167] that DRZ demonstrated a serious lack of insight and understanding of her protective role as authorised carer. That finding was made in the face of findings that Mr AB did not pose a real and appreciable risk to the safety of his own children and that there was no evidence that the child was placed at risk through her contact with Mr AB.
7. A finding that the child was not actually placed at risk through her contact with Mr AB is not inconsistent with a finding that DRZ had no insight into the potential risk. Continuing to have contact with Mr AB was evidence that she had no insight into the potential risk of that contact. We reject this ground of appeal on that basis.

Did the Tribunal fail to take into account a mandatory consideration - ground 2

1. DRZ submitted that the Tribunal failed to take into account the "relevant and mandatory consideration" set out in s 8 of the Care Act. The objects of this Act are to provide - (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 (a1) recognition that the primary means of providing for the safety, welfare and well-being of children and young persons is by providing them with long-term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles, 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.
2. We note that this ground of appeal was not addressed in any detail in oral submissions. Nevertheless, we will deal with it briefly.
3. The Tribunal set out s 8 of the Care Act at [77] but did not refer to these objects again. DRZ submitted that, reading the decision as a whole, it was clear that the Tribunal did not take into account those objectives. The "long-term, safe, stable and secure environments through permanent placement" was said to be particularly relevant in this case. According to DRZ, the Tribunal was required to give consideration to that objective in s 8(a1) and it failed to do so. DRZ accepted that the Tribunal was bound to consider all the evidence, including the concerns raised by Barnardos. However, when the need for stability and security is taken into account, the correct and preferable decision was not to cancel her authorisation.
4. It is not an error of law for a decision maker to fail to take into account a relevant consideration unless it is bound to take that consideration into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24. Section 7 of the Care Act provides that the objects and principles in that Act, "are intended to give guidance and direction in the administration of this Act. They do not create, or confer on any person, any right or entitlement enforceable at law." The Court of Appeal has held that s 8 "merely state[s] objects" and that "it is unnecessary for the primary judge to recite the objects of the Care Act in a formulaic manner at various points in her reasons to demonstrate that it underpinned her analysis of the issues": JL v Secretary, Department of Family and Community Services [2015] NSWCA 88 at [199] (Basten JA) and [138] (McColl JA).
5. Section 8 does not list mandatory relevant considerations. We agree with Barnardos that to the extent that the objects in s 8 embody protective measures to ensure that the child's safety welfare and well-being is given primacy, the Tribunal below clearly considered those matters.

An injustice was occasioned which was reasonably clear - Grounds 4 and 5

1. DRZ submitted that when the evidence of Dr Milch and two of DRZ's siblings is considered the Tribunal made a decision which was so unreasonable that no reasonable decision maker would make it. Further, on this basis, an injustice was occasioned which was reasonably clear.
2. Dr Milch's report was, in effect, a parenting capacity report. He did not see or assess the child, nor was he provided with all the relevant information. The affidavits from DRZ's siblings were relevant to the level of attachment between DRZ and the child and their observations of her parenting capacity. The evidence that DRZ had provided an appropriate level of care to the child was a relevant factor for the Tribunal to consider but was not the only relevant consideration. The Tribunal's decision was not so unreasonable that no reasonable decision maker would make it. Nor was an injustice occasioned which was reasonably clear.
3. As to the question of whether DRZ was "no longer a suitable person to be an authorised carer", DRZ submitted that there was substantial additional material before the Tribunal that had not been before Barnardos when the decision was made. That material included evidence regarding the excellent relationship between the child and DRZ. For example, the evidence from Dr Milch (Exhibits A2 and A 5) and the evidence indicating that there had been no actual danger to the child from Mr AB. DRZ submitted that the Tribunal relied on the objective seriousness of DRZ's conduct, not on whether she is a suitable person to be an authorised carer, as at the date of the hearing.
4. The Tribunal listed the report of Dr Antony Milch, Child Family and Adult Psychiatrist, dated 6 February 2019 and a follow-up letter dated 7 February 2019 as evidence on which DRZ relied. The Tribunal made findings consistent with that evidence. In particular, the Tribunal found that neither DRZ nor Mr AB posed a real or appreciable risk to the safety of the child. We are satisfied that the Tribunal made findings based on the material then before it.

Adequacy of reasons - ground 1

1. The final ground of appeal was that, even if the Tribunal did not make any of the errors listed in the other grounds of appeal, the Tribunal gave inadequate reasons for the decision. This ground was expressed to be in the alternative to the other grounds of appeal.
2. DRZ submitted that the central issue in this case was a consideration of s 9 of the Care Act - that the 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." The Tribunal's decision was based on DRZ's breach of the Code of Conduct and her serious lack of insight and understanding of her protective role as an authorised carer.
3. In Pollard v RRR corporation Pty limited [2009] NSWCA 110 McColl JA with whom Ipp JA and Bryson AJA agreed, identified the principles relevant to giving adequate reasons. Those observations were summarised as follows by the Appeal Panel in Moussa Enterprises Pty ltd v Stanford [2015] NSWCATAP 99 at [30]: 1. The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes "a sense of grievance" and denies "both the fact and the appearance of justice having been done", thus working a miscarriage of justice. 2. The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. 3. While a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties. 4. The reasons must do justice to the issues posed by the parties' cases. Discharge of this obligation is necessary to enable the parties to identify the basis of the judge's decision and the extent to which their arguments had been understood and accepted. 5. Because a primary judge is bound to state his or her reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Where it is apparent from a judgment that no analysis was made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, it is apparent that the process of fact finding miscarried.
4. In the decision of New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231, Bell P (Ward JA and McCallum JA agreeing) made the following observations in the context of appellate review of the adequacy of reasons (footnotes deleted): . . . the function of an appellate court is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard. The standard is not one of perfection.
5. Relevantly to this case, Basten JA held in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 at [46]: Where the legal test to be applied involves an evaluative judgment, it may well not be practicable to provide a detailed articulation as to how specified (and conflicting) factors have been weighed in the balance; the scope of the obligation must recognise that constraint. (A different question arises if mandatory considerations have not been identified.)
6. According to DRZ, the Tribunal failed to give adequate reasons because it failed to expose its reasoning process for cancelling DRZ's authorisation. There was significant evidence about the extremely positive influence DRZ had on the child. The Tribunal found that there were many factors in favour of DRZ and that she loves and cares for the child. The Tribunal failed to explain why, in light of that evidence and those findings, DRZ was "no longer a suitable person to be an authorised carer". This failure leads to a "sense of grievance" for DRZ and denies both the fact and the appearance of justice having been done."
7. This ground of appeal has not been made out. The Tribunal took into account the evidence as to DRZ's parenting history and attachment to the child. It is apparent from reading the whole decision that the Tribunal recognised and understood the positive influence DRZ had on the child. At [172], the Tribunal expressly acknowledged that there were many factors in DRZ's favour. However, the Tribunal considered the fact that DRZ had breached the Code of Conduct and had maintained the relationship with Mr AB, to be so serious that it justified cancellation. That was an evaluative judgment. In the words of Basten JA, having set out the specific conflicting factors, it was not practicable to provide a detailed articulation as to how they had been weighed.
8. A similar conclusion applies to the Tribunal's finding that DRZ lacked insight and understanding of her protective role as authorised carer based upon the maintaining the relationship conduct. That was an evaluative judgment founded upon the facts and matters exposed in the reasons, particularly at [166] and [167].
9. Secondly, DRZ submitted that the Tribunal failed to explain or give reasons for concluding that the failure to immediately report the fact that police had contacted her about Mr AB was a serious breach of the Code of Conduct. It was submitted that where this issue was so critical to the Tribunal's decision, failure to give reasons for reaching that conclusion again provides a sense of grievance to DRZ and denies both the fact and the appearance of justice having being done.
10. Because we have decided that this aspect of the Tribunal's decision involved a misconstruction of the Code of Conduct, we do not need to address this basis for appeal.

Disposition of the appeal

1. We have upheld the appeal, in part, by finding that the Tribunal erred in concluding that DRZ had failed to comply with a condition of authorisation. Given that there was more than one basis for the Tribunal's decision, we invite the parties' submissions as to the appropriate orders the Appeal Panel should make. We also invite submissions as to whether we should dispense with a hearing on that issue: NCAT Act, s 50(3).

Orders 1. The appeal is upheld in part. 2. Within 14 days of the date of this decision, the appellant is directed to file and serve submissions on the orders the Appeal Panel should make and whether a further hearing should be dispensed with. 3. Within 14 days of receiving the appellant's submissions, the respondent is directed to file and serve submissions in reply.

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 March 2020