DWA v Veritas House

NCAT Administrative and Equal Opportunity|2019-08-08

Introduction

DWA and DWB are authorised carers under the Children and Young Persons Act 1998 (the 'Care Act'). Veritas House (the respondent) is a New South Wales Government designated agency providing out of home care to children in New South Wales.
A publication restriction applies in this matter. We have used pseudonyms and refer to the applicants as 'DWA' and 'DWB' and collectively as (the applicants).
The applicants had the responsibility for daily care and control of a (3 year old male child at the time of the hearing) who was placed in their care on 26 May 2017 and is currently under the parental responsibility of the Minister for Family and Community Services (the First Child). The Respondent is, and was, responsible for the case management in relation to the First Child.
On 21 December 2017, the applicants had the responsibility for daily care and control of a Second Child (aged 11 years at the time of the hearing) who was also under the parental responsibility of the Minister for Family and Community Services (the Second Child).
Over a two year period, the applicants had placed with them a number of other children on a respite basis.
The Respondent removed the responsibility for the daily care and control of the Second Child from the applicants on 9 July 2018.
On 7 November 2018, the First Child was also removed from the care and control of the applicants and placed into emergency respite care. At the date of hearing the First Child has now been permanently placed with another foster care family.
On 15 April 2019, the respondent notified the applicants of its decision to cancel their authorisation as authorised carers (the Reviewable Decision) which is an administratively Reviewable Decision.
The applicants are seeking that the Tribunal set aside the Reviewable Decision. It is this matter which was before us for determination.

The Hearing

The matter was heard over 3 days, being 6, 7 and 8 August 2019.
The parties were represented by Counsel. The applicants and employees and officers of the respondent gave evidence and were cross-examined during the hearing.

Interlocutory matter

At the beginning of the hearing the applicants, by their Counsel, sought to amend the application to include the Tribunal reviewing the decision of the respondent to remove the First Child from the care and control of the applicants. That application was opposed by the respondent. Mr Gardiner, counsel for the respondent, said it was common ground that the applicants had not sought an internal review of the 7 November 2018 decision to remove the First Child, which raises a jurisdictional issue in the Tribunal allowing the fresh application made the applicants. Further, Mr Gardiner said that if such an application was allowed, further evidence as to the disposition of the First Child may be required to be put before the Tribunal by the respondent, which evidence could include expert evidence. Mr Gardiner submitted that if the Tribunal allowed the fresh application to include a review of the 7 November 2018 decision, the respondent would be prejudiced in not being able to meet the application and rely upon expert evidence. He submitted that there is the real likelihood that the respondent would be required to meet more than they had prepared for should the fresh application to amend be successful.
Ms Tabbernor submitted that there was no evidence before the Tribunal that the First Child has been placed with another family on any other basis than respite. She said that the correct and preferable decision to reauthorise the applicants by default would include the First Child being replaced into their care. Ms Tabbernor submitted that there is sufficient evidence available to the respondent to address this issue, but conceded that there was no expert evidence concerning the time which has elapsed from when the care and control of the First Child was removed from the applicants to date.
Mr Gardiner took instructions from his client and said the First Child is not on respite and has been permanently placed with another family. Given this arrangement, Mr Gardiner submitted it is critical that there be further expert evidence put before the Tribunal to determine the issue of the First Child's placement. He further submitted that it may be the case that jurisdiction needs to be clarified in respect of the fresh application to determine the question of the removal of the First Child. In this regard Mr Gardiner submitted that evidence in one should not be evidence in the other.
Ms Tabbernor agreed that evidence would need to be called about the placement of the First Child into long term care. However, Ms Tabbernor did not concede that expert evidence would need to be called to determine whether the First Child should be placed back into the care of the applicants. We do not agree as one of the questions the Tribunal must consider is the paramount best interests of the child, particularly if we are to determine whether the First Child should be restored to the care and control of the applicants.
We considered the submissions made by Counsel for the applicants and the respondent. We decided that the application made by Ms Tabbernor on behalf of the applicants be refused. We accepted that the respondent would be prejudiced should the Tribunal grant the application, having accepted that the respondent has prepared a case only on the basis of a review of the Reviewable Decision. We determined that it would be necessary to have expert evidence before us to determine the best interests of the First Child concerning any restoration order. Such evidence was not before us.
We considered that by refusing the fresh application the Tribunal will proceed and determine the Reviewable Decision in furtherance of the guiding principles as set out in section 36 of the Civil & Administrative Tribunals Act (NSW) 2013 (NCAT Act). Further, the issue as to restoration of the First Child can only be determined following the Tribunal's consideration and findings with respect to the Reviewable Decision.

Relevant Legal Matters

The Tribunal's power to review decisions concerning authorised carers arises under s 245 (1) (c) the Care Act. The section relevantly provides: 245 Decisions that are administratively reviewable by Civil and Administrative Tribunal (1) Each of the following decisions made under or for the purposes of this Act or the regulations is an administratively Reviewable Decision for the purposes of section 28 (1) (a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993: (a) a decision of the relevant decision-maker to suspend a person's authorisation as an authorised carer or to impose conditions on a person's authorisation, (a1) a decision of the relevant decision-maker to cancel a person's authorisation as an authorised carer, other than a decision to cancel an authorisation granted on a provisional basis or a decision to cancel an authorisation on the occurrence of an event prescribed under section 137 (2) (e), … (2) In this section, "relevant decision-maker" , in relation to a decision, means the person or body authorised by or under this Act or the regulations to make the decision, not being the Children's Court. …"
Other provisions of the section do not concern these proceedings. However, there are commensurate provisions enlivening the Tribunal's jurisdiction to conduct an administrative review. Those provisions arise under the Community Services (Complaints Reviews and Monitoring) Act 1993. Section 28 relevantly provides: 28 Applications to Tribunal for administrative reviews of decisions (1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions: (a) a decision that is an administratively Reviewable Decision under section 193 of the Adoption Act 2000, section 36 of the Adoption Information Act 1990, section 35 of the Disability Inclusion Act 2014 or section 245 of the Children and Young Persons (Care and Protection) Act 1998, ….
There was no dispute that an application concerning the cancellation of DWA and DWB's authorisation in circumstances of the care relationship involving the Applicants, the First Child, Second Child and the Respondent, would fall within the review jurisdiction of the Tribunal.

The applicable legal framework

The objects of the Care Act, are set out in s 8 and provide as follows: (a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and (b) that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and (c) that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment.
The Care Act is to be administered under the principle that the safety, welfare, and well-being of children are paramount (the paramount concern): s 9(1) of the Care Act.
Subject to that, the Care Act sets out other, particular principles to be applied in the administration of the Act. These are found in ss9(2), 10, 11, 12 and 13 of the Care Act.
The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice s38 the NCAT Act.
The standard of proof is on the balance of probabilities. The High Court decision in Briginshaw v Briginshaw [1938] HCA 34 is relevant in determining whether the burden of proof, on the balance of probabilities, has been achieved.
When determining issues of, amongst other things, removal and restoration of a child in all decisions under the Care Act involving the paramount concern of safety, welfare and well-being of a child, the proper test to be applied is that of "unacceptable risk to the child": The Department of Community Services v "Rachel Grant", "Tracy Reid", "Sharon Reid and "Frank Reid" [2010] CLN 1 per Judge Marien at [61]. The appropriate test is whether there is an "unacceptable risk" of harm to the child: see M v M [1988] HCA 68 at [25].
Whether there is an "unacceptable risk" of harm to the child is to be assessed from the accumulation of factors proved according to the relevant civil standard, as discussed above: see Johnson v Page [2007] Fam CA 1235.
Chapter 8 of the Care Act provides a model for the organisation of out-of-home care for children and young people.
Statutory out-of-home care may be provided in respect of a child and young person only by an authorised carer (s136 of the Care Act). Section 137 of the Care Act defines what is meant by the term 'authorised carer'. This includes the principal of a 'designated agency' and 'a person who, in accordance with the regulations, is authorised as a carer.'
The conditions of authorisation are set out in clause 34 of Children and Young Persons (Care and Protection) Regulation 2012 (the 'Regulation'), which include a requirement that the authorised carer 'must comply with the code of conduct for authorised carers.' The 'code of conduct' is defined to mean the code of conduct for authorised carers approved by the Minister. Clause 35 of the Regulation provides that the designated agency that authorises a carer under the abovementioned clauses must cause the person to be given a copy of the authorisation in writing and the authorisation must set out the conditions of that authorisation.
Clause 41 of the Regulation makes provision for the management of behaviour of children and young persons. Clause 42 makes provision for the cancellation or suspension of an authorisation of a carer. The clauses are in the following terms:
1. Management of behaviour of children and young persons (1) An authorised carer, in correcting and managing the behaviour of a child or young person in out-of-home care: (a) must not use: (i) any physical coercion or physical punishment (including corporal punishment), or (ii) any punishment that takes the form of immobilisation, force-feeding or depriving of food, or (iii) any punishment that is intended to humiliate or frighten a child or young person, and (b) must, in any event, use only behaviour management practices approved by the designated agency. (2) An authorised carer who finds that the approved behaviour management practices are not sufficiently effective to correct or manage the behaviour of a child or young person is to notify that fact as soon as practicable to the designated agency. (3) On receiving a notification under subclause (2), the designated agency, after assessing the situation, is to determine if the problem should be addressed: (a) by providing appropriate advice, support and training to the authorised carer and appropriate support to the child or young person, or (b) by changing the placement arrangements. 42. Cancellation or suspension of authorisations by designated agencies A designated agency may, by notice in writing, cancel or suspend the authorisation of an authorised carer if the agency is of the opinion that the authorised carer: (a) is no longer a suitable person to be an authorised carer, or (b) has failed to comply with any condition of the authorisation, or (c) has failed to comply with any obligation or restriction imposed on the authorised carer by the Act or this Regulation, or (d) has failed to comply with a written direction to the authorised carer by the designated agency or the Children's Guardian under section 157 (3) of the Act, or (e) has failed to uphold the Charter of Rights prepared under section 162 of the Act.
S25A(1) of the Ombudsman Act 1974 defines 'reportable conduct' as: (a) any sexual offence or sexual misconduct committed against, with or in the presence of a child - including child pornography offence; (b) any assault, ill-treatment or neglect of a child; (c) any behaviour that causes psychological harm to a child even if the child consented to the behaviour. …

Issue

DWA and DWB's application filed 15 May 2019 seeks that the Tribunal review the Reviewable Decision made by the Respondent to cancel their authorisation as authorised carers. We must determine whether the Reviewable Decision is the correct and preferable decision having regard to any relevant factual material and any applicable written or unwritten law.

Evidence

The applicants' evidence consisted of:
Application filed 10 May 2019 (A1).
Affidavit of DWA 15 September 2019 (A2).
Affidavit of DWB 12 July 2019 (A3).
Affidavit of friend of the applicants 15 July 2019 (A4).
Affidavit of daughter of DWA 12 July 2019 (A5).
Affidavit of friend of the applicants 12 July 2019 (A6).
File note 9 July 2018 (A7).
File note 3 October 2018 (A8).
File note 12 September 2018 (A9).
Interview transcript 10 January 2018 (A10).
File note 15 January 2018 (A11).
The Respondent's evidence included:
Affidavit of Heather Johnson 26 July 2019 (R1).
Affidavit of Ann-Maree Shay 26 July 2019 (R2).
Affidavit of Di Fenner 26 July 2019 (R3).
The applicants and the respondent filed written submissions.

The reasons provided by the respondent for the Reviewable Decision

On 17 January 2019, the respondent wrote to the applicants giving notice that their authorisation as foster carers with the respondent had been cancelled effective immediately. The grounds relied upon in the decision were made pursuant to Division 2 of clause 42 of the Care Act which included: 1. that they are no longer suitable people to be authorised as carers; 2. that they have failed to comply with obligations imposed on authorised carers by the Act or Regulation; and 3. they have failed to uphold the Charter of Rights prepared under s162 of the Care Act in regard to the right to contact with family and the right to feel safe and not be abused.
Seven reasons for this decision were included in the letter to the applicants, being: 1. there have been two sustained allegations of reportable conduct; 2. the most recent investigation had identified that DWA had breached confidentiality in relation to children in her care; 3. there is documented evidence that DWA had been unable to regulate her emotions resulting in an inability to put the needs of the children in her care above her own. An example of this included the belittling of the Second Child following a stealing incident in July 2017; 4. there is a documented resistance from both the applicants in relation to engaging in birth family contact and a negative view towards siblings and birth parents. The applicants have not been able to demonstrate a shift in attitude despite being given information regarding the importance of birth family contact, attending training and signing the Ministerial Carers Code of Conduct; 5. the applicants have been unable to demonstrate that their motivation for care for children comes from meeting the needs of those children, but rather their motivation appears to be to meet their own needs; 6. throughout the period of authorisation the applicants have breached the Ministerial Carers Code of Conduct in relation to the care environment, family and significant others wellbeing and health; 7. there is currently an irretrievable breakdown in the relationship with the respondent. The respondent is of the belief that the applicants' inability to meet their legislative requirements strongly suggest that they would have difficulty working with other designated out of home care agencies.
Following internal review of the 17 January 2019 decision of the respondent, the Reviewable Decision was made by the respondent on 15 April 2019 (Exhibit R1, page 215). Following the internal review, the applicants were advised of the following: 1. the decision by the respondent to cancel the applicants' authorisation as carers on the basis of (a), (c) and (e) of the Regulation is assessed as reasonable.

Alleged conduct leading to cancellation of the applicants' authorisation as authorised carers

The respondent has relied upon the following alleged conduct which led to it initiating an investigation.
A complaint made by the applicants' daughter-in-law on 5 November 2019 involved three allegations which were investigated by the respondent, being: 1. an alleged domestic dispute that occurred between DWA and DWB on the weekend of 4 to 5 November 2018; (Allegation 1) 2. an occasion when DWA had left the house with the First Child following an argument with DWB and had remained out of contact for approximately 2 days; (Allegation 2) 3. when the Second Child had stolen DWA's ring, DWA had said to her daughter-in-law referring to the Second Child: 'She's just like her fucking mother and she can crawl back into the gutter as far as I'm concerned'. (Allegation 3)
An investigator, Ms D Whittington undertook an investigation (Exhibit R1 at page 97) and made the following findings.
In relation to Allegation 1, it was alleged between 4 November 2018 and 5 November 2018 the applicants were involved in a domestic dispute that led DWA to be locked out of the house, furniture being upturned, a coffee table being broken and clothes and assorted items being thrown everywhere. The First Child was in the care of the applicants at the time and was therefore exposed to violence. The finding reached by Ms Whittington was that there is sufficient evidence to sustain the allegation of psychological harm - exposure to violence or self-destructive behaviour (including domestic violence). Therefore the finding for this reportable allegation was sustained.
In relation to Allegation 2, care and neglect - reckless acts (or failure to act), the facts involved an allegation that following an argument with DWB sometime between the beginning of June and the end of July 2017, DWA took the First Child out of the house and drove in the car with him for at least two days. DWA did not let anyone know (including the respondent) where she was and if she and the First Child were safe. Ms Whittington found that there was not sufficient evidence to sustain the allegation of care and neglect - reckless acts (or failure to act). Therefore the reportable allegation was not sustained due to insufficient evidence.
Allegation 3, ill-treatment in relation to the Second Child involved allegations following the placement breakdown of the Second Child and the applicants in July 2018. DWA is alleged to have stated to her daughter-in-law that the Second Child was 'just like her fucking mother and could crawl back into the gutter where she came from for all she cared.' The investigator, Ms Whittington, found that there was sufficient evidence to sustain the allegation of ill-treatment therefore the finding for this reportable allegation was sustained.
Ms Whittington recommended that the carer authorisation for the applicants be immediately suspended and a process commenced to de-authorise the applicants by the respondent via a panel discussion. The decision to de-authorise was based on the inability of the applicants to meet their legislative requirements and a concern regarding DWA's inability to regulate her emotional state, indicating a potential untreated mental health diagnosis, the inability of the applicants to meet the competencies required to be an authorised carer and the irretrievable breakdown of the relationship with the respondent.
A second investigator, Mr Kelvin Simon, was retained by the respondent to make recommendations in relation to a request by the applicants for internal review of the respondent's decision to deauthorise them as approved carers.
Mr Simon provided a report dated 15 March 2019 (page 134, Exhibit R1). He makes the following findings with respect to the three allegations.
Allegation 1 - physical harm - exposure to violence or self-destructive behaviour (including domestic violence) a sustained finding is unreasonable as there was some evidence but it was not sufficient to prove the allegation.
Allegation 2 - carer neglect - reckless act (or failure to act). The finding of not sustained insufficient evidence for allegation 2 was reasonable.
Allegation 3 - ill-treatment of the Second Child. The reviewer found there was sufficient evidence to sustain the allegation of ill-treatment and therefore the finding of reportable conduct was reasonable.
Mr Simon went further in his review and made the following comments: From the consultant's review of the RCI of January 2019, there appeared to be sufficient evidence to sustain the first, second and fourth allegations from the prior RCI of September 2018 in relation to DWA. These were: 1 The Second Child said that DWA and DWB both swear a lot and use the f word. 2 The Second Child said that DWA called her a 'fucking bitch and said that she is a huge liar and apparently everyone knows that'. 4 The Second Child said that DWA said to her that 'she is no better than her mum'.
The recommendation of Mr Simon was that the respondent should reopen the investigation in relation to conduct of DWA in January 2019, and sustaining the first, second and fourth allegations of ill-treatment in relation to DWA.
Mr Simon went on further to identify a number of separate allegations which were not included in Ms Whittington's report. These were: 1. that the applicants had been arguing quite a lot and would yell and scream and use swear words in front of the First Child and that the First Child's reaction was to play up and if they continued to argue the First Child may develop long term psychological effects; 2. previously when DWA had been looking after her grandchildren she had been in a rage swearing and throwing things; 3. when raising her own children DWA was physically abusive and brutal in her discipline style, using belts and spoons on them and that they would lock themselves in their rooms because she would throw 'stuff' and that this childhood experience caused psychological harm to a number of them.
Mr Simon in a report of 26 March 2019 concluded that the ultimate finding of the respondent to cancel the applicants' authorisation as carers was reasonable. He concluded as follows: Allegation 1: The investigator (Debra Whittington) sustained psychological harm - exposure to violence or self-destructive behaviour (including domestic violence). Review summary: A sustained finding is unreasonable as there was some evidence but it was not sufficient to prove the allegation. Allegation 3: The investigator sustained ill-treatment - the Second Child. Review summary: The allegation was incorrectly characterised as reportable allegation of ill-treatment as the alleged comment, although highly inappropriate, was not made to, or in the presence of the Second Child. The appropriate finding is therefore not reportable conduct. Notwithstanding this finding, the evidence gathered supported that the alleged comment was made by DWA. Review observation: From the consultant's view of the prior investigation of September 2018 in relation to DWA there appeared to be sufficient evidence to sustain the following reportable allegations of ill-treatment: • the Second Child said that the applicants both swear a lot and use the f word; • the Second Child said DWA called her 'fucking bitch and that she is a huge liar and apparently everyone knows that'; • the Second Child said DWA said to her that 'she is no better than her mum'. Issue 2: The most recent investigation has identified that DWA has breached confidentiality in relation to children in her care. Review summary: There was some but insufficient information to sustain this issue. However should DWA be considered for reauthorisation as a foster carer, there are questions that should be raised with regard to how she would store and protect confidential information about the children in her care. Issue 3: There is documented evidence that DWA has been unable to regulate her emotion resulting in an inability to put the needs of the children in her care above her own. An example of this includes the belittling of the Second Child following a stealing incident in July 2017. Review summary: There was sufficient information to sustain that during times of conflict or when the Second Child had exhibited challenging behaviour, that DWA was unable to put their needs before her own. There was also sufficient evidence from DWA's anger towards, and rejection of the Second Child that she ill-treated her. Issue 4: There is documented resistance from both applicants in relation to engaging in birth family contact and a negative view towards siblings and birth parents. The applicants have not been able to demonstrate a shift in attitude despite being given information regarding the importance of birth family contact, attending training and signing the Ministerial Code of Conduct. Review summary: There was some but insufficient evidence to sustain the issue of concern. Issue 5: The applicants have been unable to demonstrate that their motivation for care for children comes from meeting the needs of those children but rather their motivation appears to be to meet their own needs. Review summary: There was no evidence to support this issue of concern. Issue 6: Throughout the period of authorisation the applicants have breached the Ministerial Carers Code of Conduct in relation to the care environment, family and significant others, wellbeing and health. Review summary: There was some, but insufficient evidence to sustain this issue of concern. Issue 7: There is certainly an irretrievable breakdown in the relationship with the respondent. The respondent is of the belief that the applicants' ability to meet their legislative requirements strongly suggest that they would have difficulty working with other designated out of home agencies. Review summary: There was sufficient evidence to sustain this issue, given the concerns raised by the applicants' ability to care for children with difficult behaviours, it is highly likely that the applicants will continue to experience difficulties in working with a designated out of home care agency.
Mr Simon concluded that from the sustained allegations and issues of concern in relation to the applicant's ill-treatment of the Second Child (issues 1 and 3) and her inability to place the needs of the First and Second Child before her own during times of conflict, or when the Second Child's behaviour was challenging (issue 3), DWA is not considered a suitable person to be an authorised carer. Mr Simon confirmed the decision of the respondent to cancel the applicants' authorisation as carers on the basis of Clause 42 (a), (c) and (e) of the Care Regulation as being reasonable.

Evidence of DWA

DWA relied upon her Affidavit sworn 15 July 2019. She was cross-examined. The Affidavit sets out that she has 7 children from a previous marriage. The applicants do not have any children from their relationship.
DWA confirmed that on 24 May 2017 she and her husband were authorised to care for two children aged 0 to 7 years for emergency respite short term and long term placement. Also on that date the respondent informed the applicants that the First Child would be coming into their care on 26 May 2017. The First Child's sister, the Second Child, arrived after school at the respondent's home on 20 June 2017 and was placed on respite with the applicants. The applicants also had other children placed in their care on a respite basis.
DWA attests to her love and affection for the First Child and describes a healthy relationship between the First Child, DWA and DWB.
The Second Child again came into the care of the applicants on 21 December 2017 following a breakdown in her previous long term placement. It was planned that the Second Child was to remain in the care of the applicants for 3 weeks until a long term placement was found for her. During this period the Second Child stole a toy from Big W. DWA said that she and her husband had no experience dealing with children who steal and this situation caused them to have second thoughts as to whether they wanted to care for the Second Child on a long term basis.
After meeting with the respondent and discussing the long term needs of the Second Child, the applicants decided to care for her on a permanent basis.
DWA sets out the early relationship she and her husband had with the Second Child. The Second Child spent one on one time with DWA doing homework, cooking and shopping for 'a girls' day out'. The applicants purchased, amongst other things, a horse for the Second Child, a riding helmet and boots. DWA states: '[the Second Child] had settled into our home and hearts and we believed that she would remain in our long term care with her brother [the First Child]. … We were shocked and saddened when the Second Child stole the ring from our bedroom. In hindsight we would have handled the situation differently if we had been better equipped and more knowledgeable about children in care and the behaviours which can surface.' The reference to the ring relates to an incident where the Second Child took a ring from DWA in July 2018 which caused particular mistrust between the applicants and the Second Child (see below).
DWA makes the following comments in relation to the following allegations.

Allegation 1 - Ill-Treatment - the Second Child said that DWA and DWB both swear a lot and use the f word

DWA said that she does sometimes swear but not at the children. Occasionally she has used the f word but has tried to use another f word as her first choice, e.g. 'flipping'.

Allegation 2 - Ill-Treatment - the Second Child said that DWA called her 'a fucking bitch' and said that she is a huge liar and apparently everyone knows that

DWA denies this allegation. In respect of this incident DWA said that she and her husband were having a private conversation in their bathroom. DWA admits that she called her daughter-in-law a fucking bitch. After the conversation they found the Second Child inside the bedroom who had been listening to their conversation.

Allegation 3 - Ill-Treatment - the Second Child said that DWA had said 'If they take the First Child away because of her they are going to come chasing after her'

DWA said that she has always mentioned to the case workers 'If you are going to take the First Child away from us then you should let me know when you are on your way so that I can get away with the First Child first'. DWA said that this was a joke and it came from the love she and her husband had for the First Child. She said that the Second Child may have heard us joke about this and has repeated the conversation out of context.

Allegation 4 - Ill-Treatment - the Second Child said that DWA said to her 'She is no better than her mum'

DWA denies this was said.

Allegation 5 - Ill-Treatment - on 8 July 2018 the Second Child was told to stay in her room and never come out

DWA describes discovering her ring in the Second Child's bag extremely distressing for her. Specifically DWA said that she asked the Second Child to return to her room to do normal things, such as make her bed, put her clothes away and tidy her room. She asked the Second Child to take some time to think about her actions. Following that the Second Child was playing with her brother, the First Child watching TV, and had a quiet conversation with DWA about how precious the ring was to her and why she was upset it had been stolen.

Allegation 1 - Psychological Harm Exposure to Violence or Self-destructive Behaviour (including domestic violence)

This incident is described by DWA as an event where she and her husband had a verbal argument about family issues. DWA denies they had a domestic violence incident. The First Child had gone to sleep on the lounge in his play room. DWA denies any furniture was broken and said that her husband had been trying to fix a recliner so they could watch a movie. This, in her view, explains why the lounge chairs were upturned. DWA describes the state of the house: …plenty of chaos in our lounge room but it was because we had had guests over the weekend and I had not cleaned up the mess. There were plenty of toys strewn everywhere as well as the wet towels and clothes left by a family when they went home. Rather than stay and continue the verbal argument I chose to go outside on my own for a while. I was not locked outside at this time.' DWA explained that they always leave keys outside so that they can let themselves into the house at any time.

Allegation 2 - Carer Neglect - Reckless Act (or failure to act)

DWA said that she often visits her friend. DWA's friend is also a foster carer and the First Child enjoyed going to play with her boys. DWA said that in September 2017 she stayed for a few days with her friend and did not let the respondent know where she was, but she was not sure that she had to do so. DWA denies that both she and the First Child slept in her car, but rather in a granny flat owned by her friend.

Allegation 3 - Ill-Treatment the Second Child

DWA said that the findings of the investigation may have been sitting on the table at some stage during a visit by her son and daughter-in-law. She realises that she should have not left things on the table and now secures paperwork in a locked office drawer.

DWA's relationship with her daughter-in-law

DWA describes a difficult relationship with her daughter-in-law who made the complaints which led to the removal of the First Child from the applicants' care. In that regard difficulties had arisen over a grievance DWA's daughter-in-law had about a wedding which she was not invited to. Further conflict between the applicants and their daughter-in-law had arisen over a number of gifts the applicants gave to the First Child, specifically the gift of two bikes, one for Christmas and one for his birthday. DWA's daughter-in-law and her husband left the home of the applicants and, according to DWA, did not help to clean up the meal they had eaten together, did not pick up any of the toys the children had strewn from room to room and they had left wet towels on the floor from baths the children had taken.

Relationship with Veritas House

DWA sets out a fractious relationship she and her husband have had with the respondent. In particular with an employee, Ms Ann-Maree Shaw. DWA states that she and her husband were continually asked to provide respite care for children, on occasions outside of their authorised care limits of two children. She said that she felt pressured to do so. This was not challenged by the respondent.
DWA states that criticism of her and DWB in failing to promote and encourage family relationships with the First Childs' biological family is unfair. She explained that at the time of a sleepover event in October 2017 it was not appropriate for the applicants to be expected to arrange early morning pick-ups following the sleep over particularly given the First Childs age and for an 8 year old child whom the applicants were caring for at the time. DWA felt that she and her husband were not encouraged to participate in alternatives to birth family contact events and provide their views. She said the respondent did not respect their opinions or consult them on decisions about the care of the First Child. DWA said that she and her husband support relationships with the First Child's siblings and significant events in their lives.

Matters Concerning DWA regulation of her emotions, domestic violence and swearing

DWA denies she is suffering from any ill mental health issues. She said she is in regular contact with her general practitioner and is able to discuss any matters concerning her health with him. Both DWA and her husband were screened by the respondent in terms of providing medical assessments at the time applying to become authorised carers. No concerns about DWA's mental health were raised in the assessments and she was approved as a carer. Having the First Child removed from the applicants' care was 'very traumatic for DWA'. Following this event DWA kept in contact with her general practitioner through this time and was recommended medication for emotional regulation. In her Affidavit DWA said that she has ceased taking medication as 'it did not agree with me'.
In cross-examination DWA was asked a number of questions by Mr Gardiner with regard to her motivation for becoming an authorised carer. The questions related to remuneration about the time that Ms Whittington was undertaking her investigation of the applicants. In particular DWA agreed that she had asked for reimbursement of $2,200 and to be treated like every other carer and be paid for looking after two children during a period of three weeks. DWA was asked a number of questions as to whether she was working 5 nights a week as a cleaner. DWA was evasive in her answers to these questions and quite combative. Ultimately she agreed that before the First Child was removed from her care and when the investigation started in late 2018 that she had been working 5 nights a week for a period of 7 months. DWA denied that the amount of work she was undertaking, caring for children, looking after the home and animals was excessive. She denied that this had any effect on her suitability to be a carer.
DWA was asked questions as to her understanding of domestic violence. After a long period of time she responded 'emotional and physical'. DWA agreed that it was extremely important for domestic violence not to occur in the presence of the First Child because of his history and background of being removed from his birth parents. DWA denied that the respondent should have any concern about what happened in her home in the presence of the First Child referring to the allegation of a domestic violence incident. DWA said that nothing happened in the First Child's presence.
Counsel for the respondent put to DWA the allegation that occurred on 19 July 2018 involving DWA allegedly referring to the Second Child as a 'fucking bitch'. DWA said she was referring to her daughter-in-law and not the Second Child. She agreed that she said words to the effect: 'If she wants to carry on like a fucking bitch then she pays the price'. She was asked what she meant by 'pay the price' and responded 'something to say, nothing specific.' DWA said that these things were 'not easily said'. She agreed after some questioning that in hindsight it was ill-considered to speak like that with a child being present in the home. DWA was combative and evasive in this part of the cross-examination which cast some doubt on us accepting her as a reliable witness in all respects.
DWA was cross-examined in relation to the allegation that she said to the First Child that she is no better than her mother. Counsel for the respondent took DWA to a record of interview with Ms Whittington (page 15, Annexure R1). DWA is recorded as having said to Ms Whittington: '… very innocently and very naively in whatever else I said to her, 'did you used to make cakes with mummy?' mistake because the Second Child then told me that making cakes was not very important to her mother, taking drugs was more important. … I did a flip and I said to her, 'Second Child that's not what we want'. I thought I was doing positive parenting again something comes back to bite you. Not just on this occasion, but other occasions right. How sad is mummy that she has all these babies and she doesn't have them with her. My positive thoughts were don't take drugs, don't do stealing, work hard at school, grow up, meet some nice friends, meet nice boys later on, have a family and keep them. In our way we are trying to break the foster care cycle, I suppose. I give you another example, and DWB will be jumping in here in a minute. How many generations of non-workers in that family?'
DWA denied that this reference was about the Second Child's family and that she was indeed referring to another family. DWA did not specify which over family she was allegedly speaking about. Her evidence in this regard was very confusing.
Detailed cross-examination of DWA took place concerning how she responded to the Second Child stealing her ring. At page 18 of Annexure E, Exhibit R1, the investigator put to DWA, which she denied, that she did said to the Second Child not to come out of her room. DWA also denied that she was screaming at the Second Child, despite the ring meaning something to her and being upset about the incident. In the interview with Ms Whittington DWA said: I asked her to go in and finish doing her jobs that you have to do and think about their actions….
DWA agreed that she had told the Second Child to go into her room and stay there and tidy the room up and make her bed. She also said to the Second Child that whilst she was doing this to think very seriously about why she took the ring and also to know how very sad DWA was. DWA agreed that she and her husband said that they wanted some form of punishment for the Second Child. We make a positive finding that DWA responded in a very emotional way and in our view her emotions took precedent over the best interests of the Second Child.
In relation to complaints raised concerning the domestic dispute on 4 or 5 November 2018, DWA said to Ms Whittington, page 80, Exhibit E R1, that she and her husband had made a decision early on: 'We wouldn't do that. One of us backs away. Get in the car and go for coffee, sorry, that's me. Walk away. It doesn't matter. And that's gone on for years. Rather than carry on, carry on, carry on, and say things that you can't take back. … we made that decision that when we get to the stage, one of us backs off. Genuinely, I know DWB does, too, but it's generally me. … on other occasions, I have been and visited my girlfriends, I have gone and had coffee, I've gone and watched a movie. Just to bring ourselves back to where we were.'
DWA said that arguments like this occur with her husband about once a year. DWA agreed that she said to Ms Whittington concerning the allegation made by her daughter-in-law about domestic violence: 'DW: In terms of the chaos, those were the photos I received. DWA: Yes. DW: How did the coffee table turn to be like this? DWA: I couldn't open the bloody door. I had some other photos I want to show you. DW: Did that occur on the Saturday, you're saying? DWA: No, no. That was on Sunday because that was when I was asking DWB to fix the bloody thing, so I could have a bloody nap. DW: Yes. Why did you take the photos? DWA: Same reason I took the ones to show you, right? This is the chaos that happens in our house when we have children in the house. DW: On this day, why did you take photos of the room like this? DWA: I just did. I don't know why I did. I don't know. I was thinking, I suppose. Then I had to clean it up, because son and daughter-in-law left on Saturday night. Didn't pick one thing up. Good lord, it made me cranky. They just (said), 'Come on, see you. Off we go'. No attempt to pick up the wet towels, the clothes that they had left behind, any toys, whatever. …'
A number of questions were asked of DWA concerning the allegation that in June or July 2017 she travelled for 2 days away from her home to visit a friend with the First Child. DWA said this event occurred in September 2017. DWA agreed she said words to the effect to Ms Whittington (page 87, Exhibit E R1): 'Okay. I did go away in September. The lead up to that was we'd had some news earlier that week that affected our business and we were both a bit upset by it. It was a business thing that we weren't expecting. We both knew we had to move forward, we had to do some things to move forward but I had one opinion, DWB had another opinion, and whatever. In the end, I said, 'Right, I'm going away' … Yes. I rang (friend) and I said, 'Can I come up and see you?' No questions asked. On your way. Because this was a business thing that concerned DWB and I, didn't concern anybody else … … DW: Would you say there was a disagreement leading up to that? DWA: I don't know. I wouldn't say it was a disagreement. We were both, if I say hurting, that's not really the right word but we were both not in the great place for - - it wasn't something we were expecting. No, I wouldn't say that we were both - I wouldn't say there was a disagreement. … but nothing that would leave an impact on the First Child. We don't do impacts on the First Child. … No. That was the reason why I went away. To give us again, based on our policy, our unwritten policy that we will just - - I don't want to go through, I've seen so many relationships just die because things have carried on and on and on. We just take leave. I'm going to say this though, even with my own kids, if I've had words with my kids or I'm unhappy with my kids or whatever, I shut down for a day, a couple of days. I don't talk to them because that's my handle. That's my handle on life. I just shut away and they know because that's what I do. That's how I do it. I just shut up, shut away and turn the phone off, whatever, and don't talk to them, don't talk to anybody usually until I'm where I want to be. That's my handle on life. …'
Despite a robust cross-examination, DWA refused to answer what the "news" was affecting her business which is referred to above. She said it was a significant event and asked the Presiding Member whether this questioning was relevant, to which the Presiding Member replied that it was. DWA said that she had made a mistake in the business, a book keeping error. She said that she and DWB had a difference of opinion and were changing practices in the future. Despite being questioned, DWA again refused to answer questions in relation to the event which caused her to pack up and leave the home. DWA did not accept that changing the First Child's routine could have affected him in terms of her going to stay with her friend for a few days. She denied the argument took place in front of the First Child.
DWA was asked some questions in terms of her mental health and emotional response to various incidents. She agreed that she took some medications for depression to keep her calm. She said that she took herself off the medication without advice of her doctor. DWA said that she sometimes 'just shuts down' in stressful situations but denied that she ever does do when she is with the First Child. She said that her focus is always on the First Child which is one hundred per cent regardless of what is happening. Her evidence in this regard is contrary to taking the First Child on a trip to a friends' home following a heated argument with her husband. DWA admitted that her behaviour towards the Second Child when she stole the ring could have been handled differently. We find that these are persuasive factors supporting the submissions of the respondent that DWA's emotions control her responses to stressful situations before considering the welfare of children in her care.
DWA denied that she ever swears in front of the children, but agreed, after some lengthy cross-examination on this issue, that she and her husband did swear from time to time.
DWA was asked why she and her husband went to the property of her son and daughter-in-law to discuss why her daughter-in-law had called the help line making the allegations referred to above. She denied the police were called and said they wanted to speak with her to see why she had said what she did.
DWA said that in her view the relationship with the respondent is not damaged beyond repair and that she and her husband could work unconditionally to repair the relationship. Her presentation whilst giving evidence about the respondent was contrary to her statement on this issue. DWA and DWB were both critical about the respondents staff and the poorly way that they had been treated concerning the various investigations and removal of the First and Second Child. We are not satisfied that the relationship is not irretrievably broken.
DWA appeared to be overly cautious in freely answering simple propositions put to her in cross-examination which reflected poorly on her general demeanour. She was apprehensive in answering questions about the frequency of swearing in front of adults and children giving the impression that such behaviour was infrequent. Indeed the transcript of interview with Ms Whittington demonstrates the use of the word 'bloody' in a free manner as does the conversation that she had with DWB concerning their daughter-in-law.
DWA's answers to questions concerning her relationship with DWB, arguments and possible domestic violence were equally evasive which causes us to have some reservations as to her candour.

Evidence of DWB

DWB swore an Affidavit on 12 July 2019. DWB deposes that he was appointed as a foster carer in May 2017. He sets out the love and affection he has for the First Child and describes their relationship as: 'from the moment they handed him to us I knew it was a match made in heaven. I held that little fellow and I told him he would be all okay now'.
DWB refers to the anxiety and upset caused to DWA by Ms Ann-Maree Shaw and the breakdown in the respite placement with the Second Child when DWA discovered her ring inside the Second Child's school bag. DWB describes himself and his wife as being shocked by this behaviour and they did not understand why the Second Child might have done this. The applicants believed they had been ambushed on the day that they had gone to discuss the situation with the respondent, when they were looking for support. DWB said that his and his wife's relationship with the respondent changed that day as they felt they had made up their mind about them without an opportunity to respond.
DWB said that he and his wife were shocked in that they were given a full history of the Second Child's background, including violence towards her carers and their family, apparent bullying of another foster child in care and foul language. He said this information was important to the applicants prior to them accepting the Second Child's placement with them.
In relation to the September 2018 allegations he states as follows:

Allegation 1 - Ill-Treatment - the Second Child said that the applicants both swear a lot and use the f word

DWB denied this. He sated: 'Whilst we do sometimes swear, we do so in the presence of adults only and we were never in the habit of swearing at or in the presence of children'.

Allegation 2 - Ill-Treatment - the Second Child said that DWA called her a 'fucking bitch' and said that she is a huge liar and apparently everybody knows that

DWB denied this. He said that he and his wife were having a private conversation in their ensuite about someone else not the Second Child. When they came out of the ensuite bathroom they found the Second Child standing inside the bedroom near the bathroom listening to the conversation. This was not the first time that the Second Child had repeated conversations out of context.

Allegation 3 - Ill-Treatment - the Second Child said that DWA had said 'If they take the First Child away because of her they are going to come chasing after her'

DWB denied this. He provided an explanation similar to DWA's in respect of how much they loved having the First Child in their care.

Allegation 4 - Ill-Treatment - the Second Child said that DWA said to her 'She is no better than her mum'

This was denied by DWB. He said that often they had discussions with the Second Child about wanting the best for her and wanting her to complete high school and other things.

Allegation 5 - Ill-Treatment - On 8 July 2018 the Second Child was told to stay in her room and never come out.

On the day that the applicants discovered the ring in the Second Child's bag DWB said he and DWA told the Second Child to go back to her room to make her bed and tidy up her room and to hopefully reflect on what she had done. DWB said the Second Child was not told to stay in her room and never come out. He states that the Second Child did come out of her room after a while and played with the First Child.
In relation to the January 2019 allegations DWB responded as follows.

Allegation 1 - Psychological Harm Exposure to Violence and Self-Destructive Behaviour (including Domestic Violence)

DWB said that he and his wife have never denied they had a verbal argument on this occasion. He said it was not a domestic violence dispute and there was no furniture broken. Lounge chairs were upturned purely for repair. Whilst the First Child was asleep on the lounge in the play room he did not witness the argument. DWA was not locked out of the home, despite the allegations. DWB said that his wife left the home so that the argument would settle.

Allegation 2 - Reckless Act Failure to Act

DWB said that his wife did go away for a few days in September 2017 to a friend's home. He said this was nothing unusual as his wife had done so before. He denied that his wife and the First Child slept in the car.

Allegation 3 - Ill-Treatment of the Second Child

It is denied that DWA said words to the effect to the Second Child that 'she is just like her fucking mother and could crawl back down in the gutter where she came from for all she cared'. DWB assumes that DWA's daughter-in-law read paperwork and reported the material contained in the paperwork.
In cross-examination DWB agreed that he and his wife sometimes argue and she takes time out. He denied that things get out of control which require his wife to take time away from him. DWB refused to answer any questions in relation to the particular business decision that resulted in an argument. He said the fight related to a business cash flow issue but refused to answer any other questions in this regard.
DWB agreed in cross-examination that in the months prior to September 2018 his wife was working 5 nights a week. She was away for a number of hours during this time and DWB was caring for the children who were placed in their care. DWB said that he and his wife had not told the respondent the level that his wife was working during this period.
DWB agreed that when he found out the Second Child had taken the ring that he believed she should be punished. He said that punishment would enable her to learn right from wrong and that this was the second time she had been caught stealing. DWB said that he and his wife were under instruction from the respondent that they would deal with the situation if she was caught again. DWB said that he thought the appropriate punishment would be to take the Second Child to the police station which may deter her from doing it again. In this regard DWB said he was told this by a case worker but could not identify the particular person.
DWB said that the Second Child was a good liar and could manipulate people. He denied that any events that occurred between himself and his wife could have harmed either the First or Second Child.
DWB said that he and his wife went to DWA's daughter-in-law's home to be provided an explanation as to why she had made the call to the help line. He denied that he and his DWA were in the habit of swearing in front of children and said that he does not swear in front of women or children. He denied that his wife swears at him and said that she has never done so that he can recall. When asked what he believed a swear word was he said 'bloody hell, fuck or shit'. The conversation DWB had with his wife in the ensuite which was overheard by the Second Child was put to him by Mr Gardiner. When asked if it was swearing if the words 'fucking bitch' were used, he said 'no'. However, he agreed that if this was possibly said in front of children it could be harmful. In our view DWB was attempting to minimise any potential criticism that may be made in terms of the way he and his wife speak to each other. His response limits the reliability of his evidence overall.
DWB said that if he and his wife had known of the Second Child's background they would not have taken her on as a permanent placement within their family, which we infer was a reference to them being unable to manage complex behaviours such as stealing given the moral framework DWB expects a child to conform to.

References from friends of the applicants

The applicants provided a number of Affidavits attesting to their ability to parent and care for children. The first marked Exhibit A4 sets out a history of the applicants having been admired by the friend for their marital relationship. On the odd occasion when the referee has heard either of them swear it has not been within earshot of any children. The referee attests that when the First Child was removed from the applicants this caused some difficulty for each of them, particularly DWA.
A daughter of DWA and stepdaughter of DWB provided an Affidavit sworn 12 July 2019 (Exhibit A5). DWA's daughter said that she has observed the applicants over many years and would describe their relationship as 'normal'. She said that she has seen them go through ups and downs, like any couple, but they were always able to get through any issue together. DWA's daughter denies observing or witnessing any behaviour which could be described as domestic violence between the applicants. DWA's daughter describes the love and affection they both have towards the First and Second Children and the support they gave to both of them.
DWA's daughter describes a fractured relationship with the applicants' daughter-in-law who made the complaint to the help line.
A second friend provided an Affidavit sworn 12 July 2019 (Exhibit A6). This referee is the brother of the applicants' daughter-in-law who made the complaint to the help line. He describes both applicants as calm people and has never witnessed any physical violence or behaviour between the two of them to make him think otherwise.
The witnesses who provided Affidavits marked as exhibits A5, A6 and A4 were not called for cross-examination.

Evidence relied upon by the respondent

Ms Heather Johnson swore an Affidavit relied upon in these proceedings on 26 July 2019. Ms Johnson is a Practice Specialist and has been employed by the respondent for a number of years. She has been responsible for managing the reportable conduct matters in relation to the applicants. Ms Johnson sets out a history of the registration of the applicants as authorised carers for emergency, respite, short term and long term care.
On or about 8 January 2018, during a home visit, DWA discussed with her Case Worker, Ms Ann-Maree Shaw, and her Carer Support Worker, Ms Ria White, an incident where it is alleged that the Second Child had stolen from Big W in the area in which the applicants live on Friday, 5 January 2018. She states that DWA expressed her dismay at the incident and could not believe that a child would steal. During the home visit Ms Shaw explained to the applicants that the Second Child's early childhood exposed her to stealing on behalf of her parents. Some time was spent by a number of professionals explaining to the applicants about the impact of adverse childhood experiences on the Second Child, the development of her brain and her often heightened state of arousal. An appointment was made for DWA with the Provisional Psychologist Mr Kelly to support her in understanding the Second Child's trauma and relevant impact on her behaviour. Ms Johnson said that DWA called before the appointment with Mr Kelly and cancelled it as she was 'not in a good space'. A telephone appointment was proposed with Mr Kelly but DWA declined this offer. Later in May 2018 Mr Kelly attended the home of the applicants and further supported them providing information in relation to the Second Child's background of trauma and strategies to manage her behaviour.
On 8 July 2018, Ms Johnson spoke with DWA on the telephone. DWA informed her that she had found one of her precious rings in the Second Child's schoolbag and this had shocked and upset her as she felt that she had come some way with the Second Child and that the stealing had stopped. She further stated to Ms Johnson that DWB was 'devastated' and they were not sure whether they could continue to care for the Second Child. DWA told Ms Johnson that she would bring the Second Child to the office the next day to discuss the matter further.
On 9 July 2018 a meeting was held at the respondent's office. Ms Shaw met with the Second Child and she disclosed the following: When DWA discovered that the Second Child had the ring in her bag she had said to her words to the effect 'Get out of your room, I want to know why this is in your bag'. … when DWB came into the house after the ring had been found she said to her words to the effect 'You can grab a suitcase because you are going'.
DWA is alleged to have sent the Second Child to her room and said words to the effect 'You can stay in your room and never come out'. The Second Child told Ms Shaw that she did not feel safe at the applicants' home. She also said that the applicants swear a lot and use the f word and that DWA called her a 'fucking bitch' and said to her 'You are a huge liar and everyone knows it'. DWA is then alleged to have said to the Second Child 'You are no better than your mum' and words to the effect 'If they take the First Child away from her she is going to come chasing after her' referring to the Second Child. Following that interview DWA was informed that the Second Child was going to be placed in respite care and that she was too frightened to return back to the applicants' home. DWA replied to Ms Johnson with words to the effect 'She shouldn't be frightened to go back. I will pack her stuff up this afternoon and you can collect it'.
At a meeting on 10 July 2018 the matters reported by the Second Child to the respondent on 9 July 2018 were determined to constitute reportable conduct. As a result, a referral was made to Ms Debra Whittington to complete the reportable conduct investigation. A copy of that report is annexed and marked C to the Affidavit of Ms Johnson.
Following further meetings with the applicants, Ms Shaw was removed as the Case Worker for the applicants.
Ms Johnson further deposes that on or about 5 November 2018 a report was made to the Family and Community Services (FACS) help line in relation to the First Child. The report included an allegation of an incident of domestic violence that occurred between the applicants on 4 November 2018. It was alleged that a verbal argument had commenced between the applicants on the afternoon on that day and continued into the evening. During the argument it is alleged that a recliner chair had been flipped over, a coffee table broken and clothes had been thrown around the room. The report of this incident also said that during a previous argument that had taken place between the applicants DWA had left the home with the First Child and slept in her car.
The respondent, together with FACS, proceeded to undertake an assessment of the reportable conduct and First Child's placement. Ms Whittington was again appointed as the assessor in relation to this investigation. A copy of Ms Whittington's report was provided to the respondent on 14 January 2019 and is annexed and marked L to Exhibit R1. A number of further meetings were held with the applicants and on 17 January 2019 the applicants were provided formal notification of the decision of the respondent to cancel their authorisation as authorised carers and the subsequent decision not to return the First Child to their care. The reasons for the cancellation of the applicants' authority are set out above.
The respondent was requested by the applicants to undertake an internal review. Mr Simon was appointed for the purposes of completing that internal review and his report is annexed to Ms Johnson's Affidavit marked R.
On or about 16 April 2019, the applicants were provided formal correspondence from the respondent in relation to Mr Simon's completed review and the decision to cancel their authorisation.
In cross-examination Ms Johnson agreed that the applicants were assessed as being suitable to be approved carers. It was not until about mid to late 2018 that the respondent became aware that DWA was working to the extent she said she was, being 5 nights a week. She said that up until July 2018 there was no issue that the applicants could meet the capacity of the First Child's needs.
Ms Johnson said that the applicants were approved for two children aged between 0 to 7 for emergency respite, short and long term care. She said that she was unsure when the applicants were asked to care for more children at a time. However, she agreed that in May 2017 the First Child was placed into long term care with the applicants. In December 2017 the Second Child was placed into long term care with the applicants and then in April 2018 a third child was also placed in their care. She agreed that occasionally the applicants would also take on emergency short term children during this period. Ms Johnson said that initially the applicants took the Second Child to psychologist appointments. However, they did not continue as DWA felt 'it was opening a can of worms for her'. Ms Johnson's evidence was unclear in this regard after being cross-examined in relation to an out of home report dated 29 May 2018 which indicated that DWA was supportive of the psychologist appointments and they had been successful. During cross-examination Ms Johnson described the parenting style of the applicants as being traditional. When asked what traditional meant she said 'old fashioned style where discipline and punishment was used'. Ms Johnson agreed that it is possible that the Second Child was scared that she would be punished for stealing the ring if she was returned to the applicants.
Ms Johnson said carers are not allowed to take children away from their home if they travel interstate without permission. If it is within the State they are allowed to do so.
The cross-examination of Ms Johnson did not materially disturb her affidavit evidence. We accept that she was an honest and reliable witness of truth.

Affidavit of Ms Ann-Maree Shaw sworn 26 July 2019

Ms Shaw is employed by the respondent as a Case Worker within the Permanency Support Team. She has been responsible for the day to day case management of the first and Second Children since 13 October 2016.
The First Child has a history of being exposed to significant drug use by both of his biological parents resulting in neglect and inadequate supervision. He was also exposed to ongoing and persistent domestic violence perpetrated by both parents. It is suspected that the First Child witnessed his father physically assault his mother and siblings on numerous occasions.
Ms Shaw listed numerous home visits that took place concerning the First Child's placement with the applicants. Ms Shaw deposes that DWA 'made little effort to ensure that the First Child and Second Child's health and development needs were being met. It has since been discovered that the First Child had a number of health and developmental issues that needed to be addressed while he was in the applicants' care'.
A number of attempts to engage the applicants in ensuring sibling contact visits with the First Child and his family were unsuccessful. In particular, one visit to which DWA refers occurred on 14 November 2017. A discussion was had around the first defendant's brother having a slumber party so all siblings could sleepover under the supervision of one or more experienced carers. DWA apparently said to Ms Shaw 'I don't feel comfortable with the First Child spending the night with his siblings.' Ms Shaw said 'The other carer has over 25 years' experience and the First Child will be safe in her hands.' DWA said 'The First Child is part of our family and I have family commitments as well'. The First Child did attend the party but only for a short time and did not stay overnight.
On a home visit on 25 May 2018 Ms Shaw said that she observed the First Child to continually cry and grizzle. DWA had to walk around with him or had to sit him and cuddle him for long periods of time. DWA said words to the effect to Ms Shaw 'This is what normally happens every day, it is what it is'. Ms Shaw asked a number of questions over the next few months as to the First Child's sleeping pattern. She recommended having him taken to a paediatrician to investigate disturbed sleep. It was not clear whether DWA proceeded with these recommendations.
In relation to the Second Child, Ms Shaw refers to the stealing incident that occurred when the Second Child was stealing from Big W. She also refers to the applicants not being able to believe the Second Child did this. She provided information to the applicants concerning the Second Child's history prior to coming into care and the counselling sessions held with Mr Kelly. She makes the following statement in respect of that discussion: 'Mr Kelly stated that the Second Child has demonstrated dissociative responses, where she has harboured her stress and anxiety inwards for so long, that she is unable to know what is right and wrong sometimes, or that she knows that it's wrong but still chooses to do it. DWA's response was that she has let the Second Child know that it is their house and their rules and that the Second Child is the child. The applicants agreed to long term care of the Second Child and was [sic] advised that they would have the support of SAL, case worker and carer support person.'
An introduction to trauma training session was arranged on 25 May 2018. It was expected DWA would attend this training but she did not do so because she had 'a rough night with the First Child'.
Ms Shaw records the following in relation to the event on 9 July 2018 where the Second Child placed DWA's ring in her bag. The Second Child had a conversation with Ms Shaw and said words to the following effect: Ms Shaw 'The Second Child, take me back to the beginning.' Second Child said 'I was making my bed when DWA came into my room and grabbed my schoolbag to put my drink bottle into my bag after it had been washed in the dishwasher. DWA was searching my bag for the pink iPad, which she said she didn't have. DWA found the ring in the front of her bag. DWA held up the ring and said 'Get out of your room, I want to know why this is in your bag'. I then went out to the dining room. DWB was outside cutting firewood. DWB came inside he was cranky. He said 'After our conversation you can grab a suitcase because you're going'. I was then told to 'Go to my room. I heard DWA call … and some other people. DWA said to me go to your room and never come out'.
The Second Child said she was in her room most of the day. Later that afternoon DWA told her that she could come out of her room. As she came out of the room she noticed DWB was in his bedroom. DWA said: 'Pop (DWB) doesn't want to speak, see or look at you'. I then went and watched TV with the First Child and did a puzzle. DWA only spoke to me again when it was time to have a shower. Normally I am allowed to watch a movie before bed but DWA said I couldn't watch a movie that night and that I had to sit there and think about what I was going to tell Ann-Maree the next day'. Ms Shaw asked the Second Child how DWA and DWB were that morning and she replied 'DWB did not speak to me and DWA told me to get up and get dressed. DWA did not speak to me all the way on the car trip …'
Ms Shaw then goes on to say that the Second Child opened up stating that she does not feel safe in the applicants' home. The applicants swear a lot and use the f word and DWA has called her a 'fucking bitch' and has told her she was a huge liar and that apparently everyone knows this. The other allegations were then disclosed to Ms Shaw, which have led to the reportable conduct investigation.
Ms Shaw said that the applicants packed the Second Child's belongings for collection and placed them in a garbage bag and old nappy boxes. They were left on the applicants' veranda for approximately 3 weeks after the Second Child left the placement. A life story work for the Second Child has not been returned by the applicants to the respondent.
Ms Shaw was cross-examined by Counsel for the applicants. There was some uncertainty as to the efforts DWA went to in trying to arrange the paediatrician appointment referred to above. In the out of home care report of 28 June 2018 a box was ticked which indicated that DWA had been trying to arrange the appointment. Ms Shaw was taken to some missing entries of sibling contact visits which were not in her Affidavit but which were recorded in notes contained in the documents before the hearing. Counsel for the respondent successfully extracted a concession from Ms Shaw that due to the applicants having the care of an 8 week old child the practicability of the First Child staying over at some slumber party would have been difficult for them. When asked by Counsel for the respondent whether the applicant has made efforts to attend family visits she said 'I do not believe so'. Her answer in this regard is not consistent with the documentary evidence demonstrating that they did make such efforts.

The submissions of the applicants

Counsel for the applicants submitted that the cancellation of their authority as authorised carers is not the correct and preferable decision and the Tribunal should set it aside. She said there were two sets of allegations relating to the reportable conduct investigation. The first were the July 2018 allegations concerning the First Child and the second reported allegations by DWA's stepdaughter which were investigated. It was submitted that there is no evidence of exposing any child to domestic violence. The only event was that on 4 November 2018 when the daughter-in-law of the applicants was not present. The applicants gave evidence and their evidence did not change. They said there was a verbal disagreement, DWA took time out and the First Child was asleep during their argument. No swear words were used and the Tribunal could not be satisfied that there was a domestic violence incident or there was any risk to the First Child.
The second matter relates to the trip that DWA took visiting her friend in relation to difficulties with the business. Again, this was at a time when DWA was taking time out as a result of the argument with her husband. Counsel for the applicants submitted there is no evidence of domestic violence but rather it related to a disagreement between the applicants concerning their business. It was submitted that there was no risk of harm to the child in this circumstance.
The third allegation relates to allegations raised by the applicants' daughter as to comments made by DWA to her. On the evidence available it was submitted that this allegation was not reportable conduct and cannot be sustained.
As to the allegations concerning the matters raised by the second investigator Mr Simon, it is submitted that the findings of Ms Whittington that were not sustained and referred to by Mr Simon should be confirmed by the Tribunal. The explanation as to the Second Child being in the room unbeknown to the applicants should be accepted. Counsel for the applicants said that the evidence that the applicants swear in front of children cannot be sustained, nor can the judgemental views about the Second Child's birth parents. It was submitted that the evidence of Ms Shaw should be taken into consideration with some caution. There was no evidence to suggest that the applicants were not supportive of sibling contact nor that they were refusing the Second Child to access health care services.
Counsel for the applicants was critical of the allegation that the breakdown in the relationship between the applicants and the respondent should be a material factor supporting the cancellation of their authorisation. She relied heavily on the fact that the same day the report was provided to the applicants the respondents did not wish to discuss the contents at that time. The issue was not revisited and no further meeting was held. It was suggested that this cannot be held against the applicants given the enormity of the stress that the events would have caused the applicants.
In relation to the mental health of DWA, it is not unreasonable for DWA to consult healthcare practitioners concerning her own mental health given the stressful situation that has arisen in relation to the first and Second Children's removal and the deauthorisation of the applicants as carers.
Counsel for the applicants said the Tribunal should prefer the evidence of the DWA and DWB that they did not reject the Second Child after they found she had taken the ring. It was conceded that the meeting the day after did not go well.
In conclusion, counsel submitted that whilst the applicants are not 'perfect carers', the Tribunal should not affirm the decision of the respondent to deauthorise their authorisation as approved carers.

The submissions of the respondent

Counsel for the respondent submitted that s245 of the Act provides the authority for the respondent to cancel the applicants' authorisation as carers. Indeed, he submitted that the Tribunal should not only take into consideration the previous decisions and investigations, but examine the totality of the evidence and documents before us (s63 of the ADR Act and YG v CG Minster for Community Services [2002] NSWCA 247).
He described the wholesale lack of understanding of the applicants' acts towards children in their care as being problematic. Mr Gardiner said that the applicants 'just don't get it'. They have a complete lack of insight as to various aspects of their conduct which potentially places children in their care at risk. Indeed, the actions of the applicants which are the subject of the two investigations have placed both the First and Second Children's welfare and safety and wellbeing at risk.
Mr Gardiner said that DWA perceived the need to sit down when she has a difficult time and to get away and vent regarding the issue of the Second Child's placement of her ring in her backpack. He submitted both applicants speak about their daughter-in-law in a derogatory manner. The need of the applicants for the children in their care to share the same moral compass of the applicants and nobody else seems to be a paramount matter in terms of their parenting style. Mr Gardiner placed some emphasis on the need of DWA to get away from the family setting during times of emotional abuse and ongoing conflict with her husband and that this is relevant evidence for a finding of domestic violence and a lack of insight as to those matters and the effect they have on children in the applicants' care.
Mr Gardiner invited the Tribunal to find that the credibility of the applicants is lacking. They were both given an opportunity to be honest and provide answers to questions concerning the substance of their arguments and that they could not answer simple propositions which must indicate a clear lack of candour. He cited the following matters which cast doubt on their version of events: 1. whether the Second Child was told never to come out of her bedroom; 2. whether frequent arguments, fights and swearing was common. In particular, attention was drawn to the transcript at Exhibit A10, page 8, with DWA's constant use of the word 'bloody' in the interview. DWA conceded that she calls her daughter-in-law a fucking bitch even when children are in the house and it was submitted that she has no understanding of potential harm to children who may overhear such swearing; 3. the evidence of DWB indicates that he does not understand his conduct could potentially harm children in his care and referred to swearing and argument with DWA; 4. both applicants completely denied any wrongdoing with respect to their parenting style and how they conduct themselves in and around the home; 5. the non-disclosure at the beginning of being approved as authorised carers that DWA was not present five nights a week but rather working.
Mr Gardiner submitted that the suitability of the applicants is lacking such that the Tribunal could find that they are not suitable persons to be approved as authorised carers. In this regard he said that nothing could be more obvious concerning DWA's mental health issues once she read the report of Ms Whittington. Both Ms Whittington and other people such as her daughter-in-law have indeed identified levels of instability concerning DWA's mental health. However, DWA and DWB denied that there was any issue in terms of DWA's mental health.
Mr Gardiner said that the need for both of the applicants to attend the home of their daughter-in-law once she had made the complaint to the help line reinforces a finding of their unsuitability to be carers. Their attendance at the home was unnecessary and resulted in police being called.
Mr Gardiner said that DWB in particular has a moral compass which underscores his unsuitability to be a suitable carer. In particular, he referred to his explanation of the Second Child as being a good liar and a manipulator indicating he has no empathy for a young child with significant care needs. Criticism was also made concerning the immediate desire to relinquish care of the Second Child in difficult circumstances in which she needed support. The level of insight into children with challenging behaviours is lacking in the way in which the applicants execute their parenting skills.

Allegation 1 - You can stay in your room and never come out

We accept the evidence of Ms Johnson and Ms Shaw. We accept that Ms Shaw recorded a conversation in which the Second Child made the allegations as set out in her Affidavit. It is difficult to make a positive finding on the precise words used by the applicants to the Second Child. Indeed, they both agree that they told her to go to her room. They said they were both very upset and could not understand how child could steal. Our findings concerning the applicants' credit and reliability of their evidence is a persuasive factor we have considered. We have a strong suspicion, having had the benefit of examining both of the applicants' demeanour in the witness box that it is more probable than not that they told the Second Child to stay in her room and never come out when first realising she had stolen DWA's ring.
We find the parenting skills of the applicants are not complementary to a finding that they are suitable carers. In that regard both the applicants have demonstrated a lack of insight into the trauma suffered by Second Child's history, which trauma triggers challenging behaviours, such as stealing and lying. We find that after the Big W stealing incident, the applicants were fully aware of the trauma and needs of the Second Child. They were offered counselling and training in dealing with the Second Child. Despite this, both applicants said in cross-examination that a form of punishment for the Second Child is appropriate to deal with stealing in order to teach her a lesson. A traditional view of parenting and punishment as referred to by the respondents our view is contrary to clause 41(1)(a) of the Regulation given the intention is to intimidate a child.

Allegation 2 - The applicants swear a lot and use the f word

Both the applicants in their cross-examination were evasive when asked questions about swearing. Their ability to answer simple propositions casts doubt on their candour. DWA in the transcript of interview with Ms Whittington uses the word 'bloody' on a number of occasions which she did not resile from in her evidence. She freely admitted that she called her daughter-in-law a 'fucking bitch' which, in our view, was a derogatory term used to denounce her to her husband. Despite the three people who provided references about the applicants, and the applicant's evidence that they do not swear regularly, which was successfully challenged in cross-examination, we find that on the balance of probabilities that the allegation is made out.

Allegation 3 - DWA called the Second Child a 'fucking bitch'

It is less certain as to whether DWA has sworn directly to a child. We repeat our findings in relation to Allegation 2 above, but in this circumstance we are not sufficiently satisfied that DWA has indeed called the Second Child a 'fucking bitch'. It is more likely in our view that the Second Child overheard DWA speaking to her husband in the ensuite where she referred to her daughter-in-law as a fucking bitch and misunderstood the conversation.

Allegation 4 - You are no better than your mum

We do not accept the evidence of DWA that she did not refer to the Second Child as being no better than her mum. Whilst we do not find any intent, but rather carelessness, the conversation DWA had with the Second Child whilst making cakes referencing to the Second Child's mother and family, is evidence in our minds that leads us to find that the allegation is made out. We find that DWA's attempt to educate the Second Child and 'break the foster care cycle' reflects poorly on her insight into parenting skills and managing a child with a complex trauma history.

Allegation 5 - If they take the First Child away from her she is going to come chasing after her

It is unclear whether the Second Child misunderstood anything that may have been said to her by DWA concerning the First Child. We are unable to make a positive finding either way on the evidence before us in this regard.

Allegation 6 - DWA called the child DWA told the Second Child that she is a huge liar and that apparently everybody knows this

It is again difficult to make a positive finding in relation to this allegation. However, we note that the applicants did indeed hold the view that the Second Child tells lies and was dishonest. Given our findings as to the way DWA emotionally reacts to situations of conflict, arguments with her husband and stress, it is possible that she may have indeed referred to the Second Child as being a liar. However, we cannot make a positive finding in this regard.

Allegations made by the applicants' daughter-in-law

Allegation 1 - incident of domestic violence between the applicants on 4 November 2018

The applicants both agree that they had an argument on 4 November 2018 at their home. Their evidence in this regard was guarded and each of the applicants refused to answer simple propositions put to them as to the subject of the argument. DWA on a number of occasions asked the Presiding Member whether the questions were relevant and whether she had to answer them despite a direction to do so. Her demeanour and refusal to answer questions reflects poorly on her candour. There was no witness to the alleged breaking of furniture and upturning of the recliner chair. The explanation provided by the applicants that DWB was repairing a recliner chair is convenient, but there is insufficient evidence in our mind to suggest that it cannot be accepted. The more persuasive factors which indicate a very heated argument took place which could be described as domestic violence, include arguing to the extent that DWA left the home, which is a persuasive factor in our determination. On balance we find that the applicants have attempted to minimise the degree of their arguing on that day. It is uncontroversial that the First Child was present in the home, albeit asleep on the lounge, when the argument occurred. Despite an attempt by Mr Gardiner to seek answers as to the potential harm the argument may have caused the First Child, the applicants did not concede that he was placed at any risk. This is a cumulative factor which goes to the lack of insight the applicants have concerning the possible effects of domestic violence or arguments on a child predisposed to similar history.

Allegation 2 - DWA left the house with the First Child following an argument and remained out of contact for approximately 2 days

DWA agreed that she had left the house with the First Child following an argument with her husband. She said that she was visiting a friend and had not understood that she was required to advise the respondent.
We make similar findings in so far as DWA attempted to minimise the circumstances of this event which is a further cumulative factor going to both of the applicants suitability to be authorised carers.

Allegation 3 - DWA's daughter-in-law referring to DWA's comment about the Second Child 'She's just like her fucking mother and she can crawl back into the gutter as far as I'm concerned'

The applicants' daughter-in-law did not give evidence in the proceedings. It is difficult to make a positive finding in relation to this allegation. However, given our findings concerning the credibility of DWA and her emotional response to the challenging behaviours of the Second Child, it is possible that similar comments were made. Given our finding that there is only a possibility that these words were said, little weight in our view can be attached to this finding.
Generally, we find the applicants' parenting skills, particularly with regard to how they responded to the Second Child's two stealing incidents, counts against them as being suitable persons to be authorised carers. In our minds, a child who has a complex trauma history before entering the care system makes her extremely vulnerable, and one who requires an appropriate level of insight into her care needs by carers. Despite the obvious love and affection the applicants have for the First Child and, to some degree, the Second Child up until the stealing incidents, it is unfortunate that they lack, in our view, the requisite insight to appropriately respond to difficult situations and not place children at risk.
Over the course of these proceedings and leading up to the deauthorisation of the applicants having the responsibility for the daily care of children in out of home care there have been many allegations made against them. Our findings in relation to the main allegations are set out above. Overall, we find that the applicants lack insight into their decision making and behaviours so as to ensure that the safety, welfare and wellbeing of children in their care is held paramount.
The applicants have clearly attempted to do their best in caring for two children and many others with challenging behaviours and high needs. However, consideration must be had concerning their lack of insight into the effect domestic arguments and violence may have on children. The regular use of swearing and DWA's emotional response to challenging situations of conflict involving her husband and also the challenging needs of children within her care does not ensure the protection of children, and places them at risk. Despite the best intentions of the applicants, we are not satisfied that they are suitable persons to remain as authorised carers.
We do not accept the applicants' submissions that the relationship between them and the respondent is repairable. We find that it is irretrievably broken because of the acrimony which has arisen during the investigation of the various allegations. We find that the applicants have lost all trust and faith in the respondent's organisation which in our view is unlikely to be resolved.
The Reviewable Decision is affirmed in so far as the applicants are not suitable persons to remain as authorised carers.

Orders 1. The decision of the respondent made on 15 April 2019 cancelling the authorisation of DWA and DWB as authorised carers 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: 04 February 2020

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