EQZ v Kari Ltd

[2022] NSWCATAD 221

NCAT Administrative and Equal Opportunity|2022-03-03

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Court

NCAT Administrative and Equal Opportunity

Decision date

2022-03-03

Source

Original judgment source is linked above.

Judgment (15 paragraphs)

[1]

Background facts

EQZ has been a foster carer with KARI since 2017. He is on a disability pension and suffers from tendonitis in his arms.
Under the KARI Code of Conduct for Authorised Foster, Relative and Kinship Carers signed by EQZ on 1 June 2017, EQZ agreed to: "Only use behaviour management practices as described in the behaviour management policy or approved by the designated agency. The use of any physical punishment or coercion, immobilisation, force-feeding, deprivation of food or any punishment intended to humiliate or frighten a child or young person is not permitted. Report any incident where physical restraint has been used following the protocol for critical incident/event reporting within the designated agency."
The NSW Communities & Justice Code of Conduct for Authorised Carers is in similar terms: "The use of any physical punishment or coercion, force-feeding, deprivation of food or any punishment intended to humiliate or frighten a child is unlawful and is not permitted. Only use restrictive practices that are part of an approved Positive Behaviour Support Plan or Behaviour Support Plan. Report any incident where physical restraint has been used following the protocol for critical incident/event reporting within your agency… Physical restraint is only to be used in extreme situations where there is a risk of serious injury to the child or another person. Physical restraint is an action taken to restrict a child or young person's movement."
There was no dispute that the terms of these Codes of Conduct were applicable to EQZ as a foster carer.
On 28 August 2020, Child A was placed in EQZ's care.
Child A is 10 years old. He is one of eight children, four in the care of his grandmother.
The Investigation report prepared by KARI dated 16 February 2021 ("Investigation Report") records that: "[Child A's] siblings were exposed to domestic violence, medical neglect, nutritional neglect, homelessness and not meeting the needs of the children, by providing them a safe home…As a result of the trauma [Child A] has suffered during his life, he exhibits some extreme trauma behaviours and violent behaviours, such as spitting, head banging, food gorging and swearing."

[2]

6 November 2020 altercation

The following facts concerning the altercation are not in dispute.
On 6 November 2020, EQZ was asked to attend Child A's school, at the end of the school day, to speak with the support teacher and another teacher ("DC") about Child A. When EQZ attended the school to collect Child A, he was informed that Child A had not been attending the Breakfast Club at the school but had been going to the oval playing before school and was engaging in disruptive behaviour. EQZ was unaware he had not been attending the Breakfast Club and reprimanded Child A in front of the teacher telling him that as a consequence of lying, he would lose his internet privileges.
Child A was upset and ran from EQZ. While running away he tripped over. He became further agitated and ran towards EQZ with his fists clenched to punch EQZ.
EQZ grabbed Child A and put him in a bear hug. This further infuriated Child A who was screaming. There was no dispute that Child A bit EQZ several times. Nor is there any dispute that EQZ said words to the effect "If you bite me, I'll bite you back".
Child A continued to bite, pinch and scratch EQZ who started to bleed. Photos of EQZ's injuries were in the evidence before us.
A number of teachers tried to intervene. The support teacher and one other were in very close proximity on either side of EQZ and Child A.
Child A ended up pushed against a fence and Child A was screaming to be let go. There is no dispute that EQZ was forcibly restraining Child A. EQZ eventually let go of Child A who sat sobbing hysterically for some time in the company of the support teacher. EQZ went with the principal to the office to have his wounds cleaned. After some time EQZ came back out and there was a further verbal exchange between EQZ and Child A.
EQZ contacted KARI while he was on a speaker phone at the school, to inform them that Child A had attacked him. The principal then contacted KARI who is reported to have said he saw EQZ pin Child A to the fence and had said things like "I'll be sending you back to KARI I don't want you anymore, you don't have a father anymore". The principal told KARI that Child A did not feel safe and did not want to return to EQZ's care. In a further conversation with KARI, the principal said that he had further information from staff who had observed Child A biting EQZ but that they also "saw what they interpreted as [EQZ] biting [Child A] in return", EQZ dig his fingers into Child A's leg - everything Child A did to EQZ, EQZ did back to Child A.
Child A's case worker collected him from the school later on that day and he was not returned to the care of EQZ.
EQZ denies the allegation that he bit Child A, dug his fingers into Child A's leg, or said the words ascribed to him.

[3]

Investigation

The investigation was conducted by KARI. The investigator interviewed Child A on 17 November 2020 and EQZ on 27 November 2020. She also considered the recounts of events from the principal and the support teacher dated 2 February 2021.
In the interview, between the investigator and Child A, the following exchange occurred: "[Child A]: [EQZ] took the internet away, which made me really cranky, and I fell on the cactus. So I went for a hit, and LC: When you say you went for a hit, what does that mean? Child A: Punch. I didn't hurt any of the teachers though. And then he just put me down onto the ground. Tried to take me home, but I was just holding onto bars and I was just biting his arm that hard that his arm started bleeding, and he was like, 'I can bite too.' So he bit me right on the arm, wherever that mark is. It was right there or right there. LC: So on the top of your arm? [Child A] Yeah, and it felt like he bit me on the head too. And then he was like, 'You don't have a dad anymore,' which made me really cranky, and I was like, 'You murdered my dog.' …. [EQZ] pushed me against a fence and I was just holding on."
In his interview, EQZ is recorded as saying the following: "Well, I just tried to deflect the situation, you know, and stop him… … the teacher told him 'Don't bite,' and I said to him at that point, 'If you bite me, I'll bite you back,' because he had bitten me there, and then when he done it there I put my chin on his shoulder, like to feel the pressure, so he could feel the - or think that I was going to bite him back. LC: Can you understand how he would maybe then have felt as though you had bitten him? EQZ: Oh, well I hadn't bitten him but as soon as I done that … LC: But could you understand that he may anticipate that would happen? EQZ: Oh, I can understand that, but when I done that he let go straightaway, otherwise he would have taken a bit a chunk out of my arm. I couldn't do any more. As I said, teachers - there were three or four teachers standing around there not doing anything, and now he's kicking me as well. So I put my arms under his arms and I held him with his arms up so he couldn't scratch or cause me any more injuries, even though, as you see, there's blood running down my arms. So I had to try and stop him attacking me and stop him attacking maybe anyone else or whatever. The teacher said, 'Can you let him go?' I said, 'If I let him go at the moment, he will probably keep attacking me or go for someone else.' So she said, 'Can you sit him down?' and I said 'Yes,' and that's what I done. I sat him down on the ground. … LC: So you said to him, 'If you bite me, I can bite you too,' or … EQZ: No, no. I just said to him, I said, 'If you bite me again, I'll bite you back'. That's all I said. I didn't do it. I didn't bite him but I said it to him to make him shock - well, I don't know whether it was to shock him out of biting me again or whatever, but he had bitten me, as the photos showed, twice, so that was all there was to it, and then I sat him down. … LC: Was there anything else said during the altercation? We have information that you had said to him, 'I'm going to take you back to KARI. You don't have a father anymore."' EQZ: No. LC: So there wasn't any… EQZ: No, nothing at all. LC: As I say, when we receive information, we - when things hit a threshold for reportable conduct, I'll put it into an allegation, otherwise I'll just want to raise it with you to get your side as well. EQZ: I did say to him - after I put him down on the ground, the teachers then surrounded him and I did say to him, I said, 'Mate, stop it now,' and he just keep telling me to fuck off, and I said, 'Mate, stop it now. We're not going to take this shit from you. You've got to stop it,' and he just told me to fuck off. The teacher did say to me, 'Come on, leave him alone. Don't talk to him. Just walk away and go and get your arms fixed.' And then that's when I walked into the office, they patched up my arms as best they could at the time, and then I walked out and I walked over to see if he was calm and better off, and he just kept saying, 'Fuck off, fuck off, fuck off. I hate you. I don't want to live with you,' and that's when I think it was [Mr X], told me to, 'Just leave him for a while. Go and have a cup of coffee and a smoke and go home and have a rest for 10 minutes or whatever and just give him time.' So that's all I done. I just left him. I'd notified KARI while I was in the office. I also rang the counsellor while I was in the office to cancel the appointment. … LC…if you were to look back at that incident with the benefit of hindsight, would do you anything differently? EQZ: I don't know because it was just so unexpected for him to come and attack me for a start, because he'd been pretty good here."
As noted above the principal and support teacher provided for the investigation, summaries of what occurred on 6 November which were taken into account by the investigator.
The support teacher's summary included the following (using the de-identified named): "EQZ grabbed Child A and spun him around and bear hugged him. EQZ's left arm was coming across Child A's left shoulder and EQZ's right arm was coming straight across Child A's right arm. EQZ clasped his hands together so that Child A was restrained. Child A became more agitated and tried to bite EQZ on the arm several times to free himself. EQZ began to scream 'If you bite me, I'll bite you and I'll do it harder.' Child A continued trying to bite EQZ and succeeded leaving a bite mark on one of his arms. EQZ in turn then bit Child A on the shoulder. When Child A pinched EQZ, EQZ pinched him back leaving visible marks on his arms and when Child A scratched EQZ, EQZ scratched Child A. EQZ kept saying 'if you hurt me I'll hurt you back.' There were multiple staff including myself physically trying to remove EQZ from Child A. At this point EQZ pushed Child A up against a metal barrier. Child A's head was pushed sideways with his right side of his face planted against a metal bar and his left side of his face against EQZ's hand, who I believe was placing pressure. Child A was yelling for EQZ to let him go and was sobbing loudly. There was a lot of screaming from both EQZ and Child A as well as staff who were trying to intervene."
The support teacher recounted that EQZ had said to Child A "No more Dad. That's it mate! Dad's gone, do you hear me, no more Dad, and I'm sending you back to KARI."
The principal's summary events included that he saw EQZ physically handling Child A; that he pinned the child against the internal entry gates with his arms in a very awkward and uncomfortable position that seemed to the principal to indicate that the child was being hurt; that when EQZ restrained the child, it became elevated; that EQZ said "if you are going to hurt me than I am going to hurt you." The principal recounted that EQZ said to the child that he would not put up with this and he would have to go back to KARI and that he didn't want to be the child's dad anymore. The principal also recalls that after EQZ went to the office to clean his wounds, he came back to Child A, who was rocking and crying hysterically, and that EQZ began to yell and point his fingers at the child.
On 16 February 2021, the KARI Investigation Report (Investigation Report) was finalised.
The Investigation Report noted the interviews as well as summaries provided by the principal and support teacher. It also noted that some time after EQZ's interview with KARI, he telephoned a compliance officer at KARI and said that he had read over the transcripts of the interviews and he had been thinking over the Christmas break, and that he believed that although he did not mean to lie at the time of the interview, that he may have made those comments about Child A being sent back to KARI and no longer having a father. He apologised for not saying so at the time of the interview.
The investigator concluded that the allegation against EQZ was sustained. She found the allegation to be sustained and stated that due to both the sustained finding of assault alongside EQZ's inability to acknowledge the inappropriate and grossly improper actions that he is no longer fit to remain an authorised carer.
On 9 March 2020, KARI notified EQZ that his authorisation had been cancelled.
EQZ applied for an internal review of the decision. On 16 April 2021, the decision to de-authorise EQZ was upheld.

[4]

EQZ's evidence

EQZ provided an affidavit and was cross-examined at the hearing.
EQZ was aware that Child A had "trauma in his background, including exposure to violence and neglect". He was informed by Child A's caseworker that Child A's grandmother had murdered someone and that the grandmother did not want to care for Child A. EQZ assumed this had impacted on Child A. EQZ was told by KARI that Child A's brother would also come to live with him after Child A had first formed an attachment and was settled.
We accept EQZ's evidence that when Child A came into his care, EQZ wanted to be a good role model for Child A and that he ensured Child A had his own room, plenty of food and that he wanted to take good care of Child A to help "turn him around".
EQZ stated that he set boundaries for Child A, used positive reinforcement strategies and aimed to give him stability. EQZ was teaching Child A responsibilities and sought to instil appropriate behaviour by giving him small tasks around the home, such as washing up or tidying his room, which he would reward Child A by allowing visits with his friends. On occasions when Child A did something wrong, EQZ stated that he would give him consequences like taking the TV out of his room or taking the iPad from him. Child A was following the rules and seemed to EQZ to be settling in well.
EQZ's unchallenged evidence was that Child A started sobbing in his dreams which EQZ reported to his caseworker. EQZ was informed that Child A's brother had allegedly sexually interacted with Child A. EQZ requested counselling for Child A. EQZ discussed Child A's alleged sexual abuse with the support teacher and deputy principal at the school Child A attended. At a meeting at his home, the KARI caseworker told him not to discuss "this type of thing" with the school as they had not been told about Child A's past in detail. EQZ believed he was acting in Child A's best interests by being honest with the school about these issues.
Up until Child A was taken from EQZ's care and EQZ received the Investigation Report, EQZ said he had been unaware that Child A had been routinely violent in the past and had exhibited "some extreme trauma behaviour and violent behaviours such as headbanging, food gorging and swearing". He said that he should have been told about this by KARI.
In the days prior to the altercation, Child A had been upset as a planned visit with his brother had been cancelled by the KARI caseworker. As far as EQZ was aware, Child A attended the Breakfast Club before school where children were given something to eat and were able to play with other kids.
EQZ candidly admitted that he grabbed Child A's wrist and that he threatened to bite Child A, but that this was only after the child had punched, scratched and bitten him on the arm. EQZ said he thought by restraining Child A, he was doing so in a way in line with the Code of Conduct, to prevent the child from further hurting EQZ or harming someone else.
In cross-examination he resolutely denied that he bit Child A. He also denied that he ever said words to Child A to the effect that he did not want to be his dad anymore or that he was sending him back to KARI. This is despite making an earlier concession that he recalled (later in January 2020) that he said something to the child like "well you'll have to go back to KARI".
In cross-examination, EQZ said that he did not accept any blame as the school caused the situation and did nothing to intervene. He also said the evidence of the principal and support teacher was untrue.
EQZ said he was shocked and panicked when Child A attacked him and if he had been better prepared by KARI (including training and information about Child A's past violent behaviours) he may not have reacted the way he did.
While EQZ accepted that some of the things he said may demonstrate that he lacked insight, he put that down to his lack of knowledge about the child's behaviour. At no time in cross-examination did he accept responsibility for his actions on 6 November 2020.
EQZ also denied that he said to Child A words to the effect "you don't have a dad, I'm sending you back to KARI".
There is no dispute that Child A had a troubled background and history of biting, swearing, hitting, spitting, head banging and food gorging. EQZ denies that he was informed of this history, although KARI made the school aware of the child's history.
We had no reason to doubt that EQZ genuinely believed he could physically restrain Child A to prevent harm to himself or others. It is the nature of that restraint that is in issue here.

[6]

Support teacher's evidence

The support teacher has been the student liaison support officer at the school for 6 years. She said she is trained in the management of actual or potential aggression but that the 6 November altercation was worse than anything she had witnessed between two adults let alone a child and an adult; she will never forget it.
She has regular contact with Child A since he commenced at the school. It was her role to settle Child A into the school and she worked one on one with him. She was aware he had suffered trauma and violence. In particular she was aware Child A had a history of violent behaviours including biting, head banging, swearing, hitting and spitting.
The support teacher said that all her interactions with EQZ prior to the incident had been positive.
During the alteration on 6 November, the support teacher was in a very close proximity, about 25-30 cm from EQZ and Child A and could see everything clearly. She was on the left of EQZ and another teacher was directly opposite her on the other side of EQZ with both of them trying to leverage EQZ's arms off Child A.
The support teacher said she was so close that she could see Child A was hurt and distressed. She tried to move EQZ's left arm to free the child but was physically unable to remove EQZ from him. She said that EQZ lost control and was not able to control his impulses; that it was as though he was playing tit for tat - everything Child A did to EQZ, EQZ did back and he said to Child A "If you hurt me I'll hurt you harder".
She said she saw EQZ dig his fingers and drag them back along Child A's arm; saw EQZ pinch Child A and bite Child A's shoulder and push Child A against the fence.
The support teacher also heard the conversation in which EQZ said to Child A
After the incident, the support teacher stated that Child A was rocking in a corner, against the fence and hitting his head with his fist. He was inconsolable and distraught and she was doing everything she could to try to calm him down.
At some point, EQZ reappeared and stood over Child A yelling at him. Child A was inconsolable.
We found the support teacher's evidence compelling. We had no reason to doubt the veracity of her evidence.

[7]

EQZ's submissions

EQZ contended that there were inconsistencies in the evidence of the principal and the support teacher which prevented a conclusion that their evidence should be believed. Further, as the two witnesses with knowledge of Child A's history of violent behaviour had never seen this type of behaviour before, combined with the optic of a large man with a child in all the commotion, it was fair that they would remember the incident as traumatic and the restraint as violent - they were suffering from sensory overload. Yet, EQZ responded with such force because Child A's attack was violent which, it appeared to be contended, was necessary restraint to protect from harm.
EQZ also suggested that the principal's and support teacher's evidence was unreliable given they were not required to recount this event in writing until some three months after the altercation when they prepared their summaries; they more than likely discussed what had occurred with each other and now were given evidence some lengthy period of time since the events occurred.
It was also submitted that we should not accept, in the absence of photographic evidence, that Child A had in fact been bitten.
EQZ submitted that his version of events on 6 December should be believed but conceded that if the Tribunal accepted KARI's version including the bite (putting aside the verbal interactions), this conduct would constitute an assault, would also constitute a breach of the Code of Conduct and the correct and preferrable decision would be to affirm KARI's decision.
However, if we did not find that EQZ had bitten Child A, it was submitted that we would need to determine whether the conduct amounted to a reasonable restraint under s 158 of the Care Act which is lawfully justified and therefore not reportable conduct. Given EQZ's belief that he needed to use such force to prevent Child A from further hurting him or possibly someone else, it was submitted that his restraint was justified.
In respect of the verbal allegation, this also requires an assessment of the versions presented. It was submitted by EQZ that if we were to accept KARI's version, while concerning, it does not rise to the level of "significant" verbal abuse required under s 20 Children's Guardian Act (for reportable conduct).
Further, we would still need to exercise our discretion to determine whether EQZ's conduct denies EQZ suitability to be carer.
EQZ also made a submission that he had been denied procedural fairness in the preparation of this case. KARI had withheld the names of the witnesses so that EQZ could not properly prepare his case. However, after putting on written submissions in October 2021 addressing this issue, KARI provided the witnesses names and they were available for cross-examination at the hearing.
EQZ maintained a submission at the hearing that one of the issues in dispute was whether EQZ had been denied procedural fairness in relation to KARI's conduct both in the investigation (which was said to be flawed including for the reason that there was no photographic evidence of the child's alleged bite mark) and in the preparation of its case including the manner in which evidence was drip fed to EQZ. There was also the contention that KARI should have obtained CCTV footage and their failure to obtain this relevant evidence meant EQZ had been denied procedural fairness.
The related contention was that as EQZ had attempted to obtain CCTV footage of the school to prove his version of events was correct, despite their being no production of footage (for the reason that it apparently does not have such footage of the area), we should be satisfied his version of events should be believed as what other reason would have to go to such lengths to prove he was telling the truth.

[9]

Factual findings

Based on all of the evidence before us we make the following findings on the balance of probabilities: 1. EQZ bit Child A on the arm (biting finding). While EQZ emphatically denied he bit Child A, we found the support teacher's evidence more persuasive and we give Child A's contemporaneous interview (which occurred 11 days after the incident) where he said he was bitten on the arm by EQZ, significant weight. 2. EQZ verbally threatened to bite Child A. EQZ admitted he said the words "If you bite me, I'll bite you" and said this was so that Child A would think he was going to be bitten. In the interview with Child A shortly after the altercation, Child A recalled these words were used and apprehended that EQZ would bite him - indeed his recollection was that he was in fact bitten. 3. EQZ pinned Child A against the fence. EQZ's affidavit stated that he restrained Child A "near the fence". This was inconsistent with what he said during his interview two weeks after the incident to the effect that he had Child A "against the fence" and took advantage of his position at the fence to deflect the situation. In addition, we accept the evidence of the support teacher and principal who saw EQZ pin Child A against the fence. 4. EQZ dug his fingers into Child A. While the allegation was that EQZ dug his fingers into Child A's leg, the support teacher was adamant that EQZ dug his fingers into Child A's arm not his leg. Further, EQZ and the support teacher both gave evidence that EQZ's arms were holding Child A's arms. We do not consider he dug his fingers into Child A's legs but we find that he dug them into Child A's arms. 5. We also find that EQZ said to Child A that he would send him back to KARI and that Child A no longer had a dad (verbal attack). Despite EQZ's denial in cross-examination that he used such words, both the principal and support teacher gave evidence that they heard these words being spoken by EQZ and we accept their evidence. Child A recounted shortly after the altercation how he felt really cranky when EQZ said to him that he did not have a dad anymore; and the investigator recorded that EQZ called in January 2020 admitting that he said those words which he had previously forgotten saying.

EQZ v Kari Ltd

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Judgment (15 paragraphs)

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