DCP v Challenge Children’s Services [2017] NSWCATAD 365

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DCP v Challenge Children's Services [2017] NSWCATAD 365 Hearing dates: 25 July 2017 and 22 August 2017 Date of orders: 14 December 2017 Decision date: 14 December 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: M Anderson, Senior Member R Royer, General Member Decision: (1) The decision to remove from the applicant the responsibility for the daily care and control of the children is affirmed. Catchwords: ADMINISTRATIVE LAW-review of decisions under section 245 Children and Young Persons (Care and Protection) Act 1998(NSW) and section 28 (1)(a) Community Services (Complaints, Reviews and monitoring) Act 1993 (NSW) – where removal of children from the care responsibility for the daily care and control of the children of the applicant due to allegations of reportable conduct – where six allegations were substantiated – where issue is the correct and preferable decision having regard to the material before the Tribunal. Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Children and Young Persons (Care and Protection) Regulation 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) Evidence Act 1995 (NSW) Ombudsman Act 1974 (NSW) Cases Cited: AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028 Bell-Collins Children v Secretary, Department of Family and Community Services (No. 2) [2016] NSWSC 853 Blinko and Blinko [2015] FamCAFC 146 Deiter & Deiter [2011] FamCAFC 82 Department of Family and Community Services (NSW) and the Bell-Collins Children [2014] NSWChC 5 DFaCS (NSW) and the Colt Children [2013] NSWChC 5 Director-General, Department of Community Services v D & Ors [2007] NSWSC 762 J v Lieschke [1987] HCA 4; (1987) 162 CLR 447 Johnson v Page [2007] Fam CA 1235; (2007) FLC 93-344 Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 M v M [1988] HCA 68; 166 CLR 69 MXS v Department of Family and Human Services (NSW) [2012] NSWDC 63 PR v Department of Community Services [2009] NSWADT 277 Re Cameron [2012] NSWSC 1453 Re Kerry (No 2) [2012] NSWCA 127 Roberts v Balancio (1987) 8 NSWLR 436 The Department of Community Services v "Rachel Grant", "Tracy Reid", "Sharon Reid and "Frank Reid" [2010] CLN 1 YG & GG v Minister for Community Services [2002] NSWCA 247 Category: Principal judgment Parties: DCP (Applicant) Challenge Children's Services (Respondent) Representation: In Person (Applicant)

Counsel: N Shepherd (Respondent)

Solicitors: NLS Law Pty Ltd (Respondent) File Number(s): 2017/00166202 Publication restriction: Pursuant to section 65 of the Civil and Administrative Tribunal Act 2013, a person must not, except with the consent of the Tribunal, whether before or after the proceedings are disposed of, publish or broadcast the name of any person who appears as a witness before the Tribunal in any proceedings, or to whom any proceedings in the Tribunal relate, or who is mentioned or otherwise involved in any proceedings in the Tribunal.Note that a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Introduction 1. DCP is an authorised carer under the Children and Young Persons (Care and Protection) Act 1998 (NSW) ("the Care Act") and until 31 May 2017, DCP had the care of three children who are aged 9 years, 7 years and 4 years. Two of the children were placed into respite care on that date. The third child was placed in respite care on 22 June 2017. The children were first placed in her care on 19 January 2015. The children are Aboriginal. 2. Since 13 October 2014 the three children have been placed under the parental responsibility of the Minister for Community Services until the age of 18. 3. On 17 July 2015 Challenge Children's Services became the designated agency authorised to provide out of home care services of children. The day-to-day case management responsibility for the children was transferred from the Department of Family and Community Services, Community Services NSW. 4. The applicant filed an application for administrative review on 2 June 2017. The purpose of the application is to seek review of the decision and have all of the children returned to the applicant's care. 5. This matter was heard on 25 July 2017 and 22 August 2017. Written submissions were submitted by the parties in addition to their oral submissions. 6. The respondent, Challenge Children's Services, opposes the application. 7. The applicant was supported in her application by the paternal aunt of the children. It was submitted that the connection with the extended family has been of benefit to the children. That aunt also exercises contact with the children. 8. There were seven allegations of reportable conduct made against the applicant. A preliminary finding was made on 12 July 2017 that six of the seven allegations had been sustained. The final findings and recommendations from the investigation also sustained six of the seven allegations and this was notified by letter to the applicant dated 24 July 2017. 9. The investigation report became an exhibit in the proceedings: Exhibit 11. 10. The Tribunal has been able to come to a concluded view. After considering all of the evidence provided and hearing from the relevant parties it is the decision of the Tribunal that the children should not be returned to the care of the applicant, and that the decision made by Challenge Children's Services should be affirmed. The reasons for that conclusion are contained within this written decision.

Legislative provisions 1. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act 2013 (NSW) or Civil and Administrative Rules 2014 (NSW) do not otherwise make provision. The rules of evidence do not bind the Tribunal (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal forms: section 38 Civil and Administrative Tribunal Act; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Where the Tribunal has a discretion to act on material which is rationally probative, subject to the rules of procedural fairness and other aspects of natural justice, the Tribunal must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Roberts v Balancio (1987) 8 NSWLR 436. 2. The "guiding principle" under the Civil and Administrative Tribunal Act and the procedural rules, in their application to proceedings in the Tribunal, "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings", subject to a principle of proportionality to the importance and complexity of those proceedings: subsections 36(1) and 36(4) Civil and Administrative Tribunal Act. 3. The Tribunal may hear an administrative review of decisions made by a "relevant decision-maker" if it is a decision referred to in section 245 of the Children and Young Persons (Care and Protection) Act for the purposes of section 28 (1) (a) of the Community Services (Complaints, Reviews and monitoring) Act 1993 (NSW). 4. Jurisdiction arises in the Tribunal as His Honour Justice Campbell observed in a matter before him which required consideration of the legislation which gave jurisdiction to the Administrative Decisions Tribunal, but now exercised by this Tribunal, in AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028 at [20]: "As I have said, in the exercise of the statutory powers arising from sole parental responsibility, the Director-General decided not to grant daily care and control to the second defendants. The key provision that confers the Tribunal's jurisdiction in the present matter is s245 of the Act. So far as relevant, it provides: (1) For the purposes of section 28 (1) (a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993, any of the following decisions made under or for the purposes of this Act or the regulations are reviewable by the Administrative Decisions Tribunal: ... (c) a decision of the relevant decision-maker to grant to, or to remove from, an authorised carer the responsibility for the daily care and control of the child or young person ... (1B) For the avoidance of doubt, subsection (1) (c) does not extend to any decision in relation to: (a) the preparation of a permanency plan, or (b) the enforcement of a permanency plan that has been embodied in, or approved by, an order or orders of the Children's Court. (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." 1. In this matter it is accepted that Challenge Children's Services is the relevant decision maker in relation to the decision to remove from the authorised carer DCP the responsibility for daily care and control of the children. The decision to remove the children from the care of the applicant is one which is described by section 245 (1)(c) of the Children and Young Persons (Care and Protection) Act. 2. In AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028, the Court was asked to decide whether the jurisdiction was curtailed by the provisions of the care plan in that matter where the provisions of the care plan were not obviously embodied in the order made by the Children's Court but were considered as part of the process of exercising the Court's jurisdiction to make a care order. His Honour Justice Campbell stated at [54]: "In every case there must be a permanency plan, and in every case there must be a finding of adequacy and appropriateness in relation to that permanency plan. However, the permanency plan is not enforceable in every case. It is only enforceable in those cases where it has been, I will repeat, embodied or approved in an order of the Children's Court." 1. Further, His Honour Justice Campbell in AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028, at [60] held: "In my judgment, a finding for the purpose of s83(7)(a) does not of itself satisfy the statutory language of s83(8). Something more is required. With great respect, I am of the view that PR v Department of Community Services [2009] NSWADT 277 remains correct in its analysis. It is necessary to my mind that a particular proposal, aspect or requirement of the permanency plan is picked up and expressly incorporated in the order of the Children's Court if s 245(1B) is to be brought into play in a given case. That has not occurred here." 1. The permanency plan in relation to any of the children has no relevance to this particular application. 2. The Tribunal has jurisdiction to hear this matter. 3. The paramount principle in any action or decision under any provision of the legislation concerning a particular child is the safety, welfare and well-being of the child: section 9 (1) of the Children and Young Persons (Care and Protection) Act. 4. The Tribunal is required to determine what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the decision maker: section 63 Administrative Decisions Review Act 1997; YG v GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25]. 5. Clause 34 of the Children and Young Persons (Care and Protection) Regulation 2012 provides: 34 Conditions of authorisations (1) A designated agency may at any time impose such reasonable conditions as it thinks fit on the authorisation of an authorised carer, including a condition that provides that the authorised carer may provide out-of-home care only to specified children or young persons or to children or young persons belonging to a specified class. (2) A designated agency may at any time vary or revoke a condition of an authorisation imposed under subclause (1). (3) The imposition, variation or revocation of a condition takes effect when it is notified to the authorised carer in writing. (4) It is a condition of an authorisation that the authorised carer must comply with the code of conduct for authorised carers. (4A) It is a condition of an authorisation that an authorised carer may provide out-of-home care only to a child or young person who is a relative or kin of the carer or who knows the carer unless the carer has completed a course of training on the provision of care for a child or young person who is not a relative or kin of the carer. (5) In this clause: "code of conduct for authorised carers" means the code of conduct for authorised carers approved by the Minister for the purposes of this definition and published on the relevant website of the Department, as in force from time to time. Note: The relevant website of the Department is www.community.nsw.gov.au. 1. Conditions of authorised care therefore may be imposed pursuant to section 137 of the Children and Young Persons (Care and Protection) Act and clause 34 of the Children and Young Persons (Care and Protection) Regulation. 2. Pursuant to section 140 of the Children and Young Persons (Care and Protection) Act the respondent has obligations to supervise placements of children with authorised carers. If the carer does not comply with those undertakings or conditions then it is up to the agency to take further and additional action about those matters. 3. The Code of Conduct for authorised carers provides that the carers shall follow the lawful policies, procedures and guidelines brought to their attention by the designated agency, and shall provide a physical environment that is safe, clean and comfortable and meets the needs of the children in the authorised carers' care. The Code of Conduct also provides that the carers should provide a care environment where the child is not exposed to physical, sexual, psychological or verbal abuse, ill-treatment or neglect. 4. The objectives and principles contained in sections 8 and 9 of the Children and Young Persons (Care and Protection) Act embody protective measures to ensure that the child is safety welfare and well-being is given primacy. There is particular emphasis in the intervention powers granted to the Secretary by that Act to remove a child from their usual caregiver in order to protect the child from the risk of serious harm. The risk of serious harm is undefined in the Act but it has been held that "it is quite clear that exposure to sexual abuse comes within the phrase. Obviously, physical violence is within the phrase": Re Cameron [2012] NSWSC 1453 at [13], Young AJ. It also includes risk of sexual harm. 5. In this matter risk of sexual harm is not alleged.

Documentary Evidence relied upon 1. The applicant and respondent relied upon: 1. Application and stay application filed 2 June 2017: Exhibit 1; 2. Affidavit of the applicant dated 20 July 2017: Exhibit 2; 3. Submissions dated 24 July 2017: Exhibit 3; 4. Challenge Children's Services section 58 documents of 149 pages: Exhibit 4; 5. Affidavit of Chris Brown filed 24 July 2017: Exhibit 5; 6. Letter notifying the applicant that the children were not being returned to her care dated 24 July 2017: Exhibit 6; 7. Submissions of the respondent: Exhibit 7; 8. Medical certificates for June 2017: Exhibit 8; 9. Case file notes August 2017: Exhibit 9; 10. Case file note of 27 July 2017: Exhibit 10; 11. Investigation Report completed 1 July 2017: Exhibit 11; 12. Further documentary bundle compiled by the respondent in response to a summons for production of documents dated 10 August 2017: Exhibit 12; 13. School records and reports: Exhibit 13; 14. Affidavit filed 15 August 2017: Exhibit 14; 15. Submissions filed 17 August 2017: Exhibit 15; 16. Medical Records April 2017: Exhibit 16. 1. In addition, the Tribunal heard oral evidence and oral submissions and received written submissions which have been considered with the documents listed even though they may not be specifically referred to in these reasons.

Issue 1. The Tribunal is required to determine what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the decision maker: section 63 Administrative Decisions Review Act; YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25]. 2. There is no requirement upon the applicant to show that the original decision maker's decision was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88.

The evidence 1. A statement contained in these reasons of a factual matter is a finding of fact based upon the evidence referred to in these reasons. A finding of fact will be determined upon the civil standard of proof which is on the balance of probabilities. 2. The allegations which were investigated and sustained were that the applicant: 1. on more than one occasion held one of the children's door shut so he could not exit his room; 2. on more than one occasion the applicant recorded that same child without his permission; 3. threatened on more than one occasion that child with words to the effect that he would not be able to live with the applicant if he lies or behaves badly; 4. on more than one occasion the applicant used timeout by picking up that child and putting him on the veranda; 5. made a child smell her soiled underwear; 6. made that child wash her soiled underwear. 1. The alleged deficiencies in the applicant's care are summarised as physical assault and ill-treatment of the children including restrictive practices. It was recommended that the children not be returned to the applicant's care and that a carer review should be conducted as soon as possible to determine the applicant's continued authorisation with Challenge Children's Services. 2. The children were provided, after placement in respite care, with monthly supervised contact with the applicant for a period of two hours in order to maintain the relationship with the applicant. 3. There have been reported a number of difficulties expressed by the applicant in relation to the care of the children. A carer review was undertaken on 12 December 2016 and an action plan was recommended in order to support the placement of the children with the applicant. That review was provided to Challenge Children's Services on 10 January 2017. On 9 February 2017 a meeting was held with the applicant to discuss strategies in order to assist in the care of the children. 4. A risk assessment was undertaken by Challenge Children's Services and on 31 May 2017 the children were as a result placed in respite care. 5. A cumulative report was prepared in relation to the applicant's care of children and relied upon by the respondent: Exhibit 4. The author of that report was cross-examined. That report is written in a chronological manner commencing with the placement of the children under the parental responsibility of the Minister until each attain the age of 18 years, and the assessment by an external assessor on 9 December 2014 of the applicant's desire and intention to volunteer as an authorised carer.

The investigation report 1. The investigation was requested under part 3A of the Ombudsman Act 1974 (NSW). The incident which it seems led to the risk assessment occurred after the applicant contacted Challenge Children's Services by phone and a caseworker immediately attended her home. There were a series of incidents on 12 May 2017 involving the applicant and all of the children which occurred in the placement. The caseworker was told that the applicant held the eldest child's door closed so he couldn't leave his room and recorded him while he was dysregulated and allegedly attempting to hurt his younger brother. 2. When caseworkers attended the home on 31 May 2017 to transport the children to respite the eldest child refused to leave and was observed to be highly distressed. That child was not made available to Challenge Children's Services until he also was placed in respite on 22 June 2017. The applicant makes specific mention of the way in which he was removed from his school and contrasts that with her own behaviour. 3. The applicant was interviewed to be a foster carer with Challenge Children's Services in December 2014. The two days of training that she completed did not adequately prepare her for caring for these three children who have suffered significant trauma in their short lives. The applicant was working as a nanny prior to becoming a foster carer. When the applicant's parents passed away the applicant said that she felt she had no family left and identified that being a mother is extremely rewarding and that the children have given her so much that she didn't have: that they are her family now. 4. Challenge Children's Services' clinician developed two incident prevention response plans and provided these to the applicant primarily to assist with the eldest child's challenging behaviours. The first of these plans was provided on 17 February 2016 and an updated plan was provided on 17 May 2016. 5. In October 2016 the applicant was provided with information of positive behaviour support strategies and fact sheets around restrictive practices. 6. In November 2017 an updated positive behaviour support plan was developed by the clinician and provided to the applicant. The updated plan provided proactive and reactive strategies to support the eldest child's behaviours. The plan was discussed in a meeting in February 2017 and sent to the applicant on 4 May 2017. 7. The middle child informed investigators that she didn't like it when the applicant is angry because she yells and this makes her feel sad. It was said by that child that the applicant yells at the eldest child more than she does the two other children. 8. When the caseworker attended the home on 12 May 2017 the applicant was asked what strategies she had utilised from the positive behaviour support plan that had been developed. The applicant informed the caseworker that it was still sitting in the envelope as she hadn't had time to read it. The applicant confirmed that she had not used any of the suggested behaviour support strategies. 9. The applicant confirmed that she had closed the door because the child had lost control and she wanted to keep him in there until he got over it. The children confirmed that the applicant kept the door closed and the eldest child did not like it because he couldn't see her and he made a previous report of this during a therapy session in January 2016. There was sufficient evidence to support a finding that the conduct complained about occurred on more than one occasion. This behaviour is classified as ill treatment and a restrictive practice under the Carer Code of Conduct. It is considered unreasonable and inappropriate behaviour. 10. When the caseworker attended the home she was shown two videos taken by the applicant to evidence what the eldest child's behaviour was like. The recording showed the child shouting and screaming attempting to grab the phone and yelling at the applicant to stop recording. The applicant stated that she had on another occasion previously told the child that she was going to record him and he then calmed down. The effectiveness of the strategy was questioned on this occasion in the recordings because it appeared that his behaviour escalated. The applicant acknowledged that in the recording she made the child did not calm down. When asked about her view of the conduct and its impact on the child considering his trauma and that he was asking her to stop filming, the applicant did not exhibit any insight into the fact that it could have a negative impact upon him. The applicant's expectation that the child would regulate his emotions when highly distressed because of a recording on a phone demonstrates a lack of understanding about trauma informed care. This is considered ill treatment. 11. There were a number of historical reports that the applicant has said she could not cope with the eldest child's behaviours. It was recorded that on 2 August 2016 the applicant had a phone conversation with a Challenge Children's Services caseworker and stated that the child had been banging his head. The applicant advised that she told the child if he were to keep doing it she would "ring the police and get him taken away." The child responded by crying hysterically and begging her not to call the police. The applicant stated that she has said she may find it difficult to manage if the violent behaviour were to continue. The applicant denied saying that the child would have to live somewhere else. The applicant has stated to the child words to the effect "how can I manage with you treating me like this". The investigation considered that the statement such as that admitted by the applicant and similar comments recorded historically can be categorised as unreasonable and seriously inappropriate ill treatment. 12. The applicant has made the eldest child remain outside the front of the house until he stopped misbehaving. The middle child informed investigators that the applicant carried the eldest child out onto the deck and that he couldn't come back inside until he had calmed down. The middle child stated that she was sad because the eldest child could hurt them. The applicant has also stated to the Challenge caseworker that she had picked the child up and carried him out front to the veranda to calm down for 20 minutes. The applicant said she stood in the doorway and told him not to yell and scream. The applicant was informed that this constituted exclusionary time out and was not an acceptable strategy. This is not supported by the Carer Code of Conduct and is considered unreasonable and seriously inappropriate ill treatment. 13. The applicant confirmed requiring the middle child to smell her underpants so she knew what it would smell like when she had soiled her pants. The applicant considered that this was a successful strategy. It was considered by the investigators that this conduct meets the ill treatment criteria as it can be considered unreasonable, seriously inappropriate and improper. 14. The applicant confirmed that the child did wash her soiled underpants. The applicant has stated that she discussed this with a psychologist. However, the applicant did not discuss this with Challenge Children's Services prior to instituting it. The investigators considered that this conduct meets the ill treatment criteria as the conduct can be considered unreasonable, seriously inappropriate and improper. 15. It was also included as part of the risk assessment by the investigator that the applicant had not been provided with sufficient training to care for three children who have experienced significant trauma. 16. The recommendations of the investigating agency were that the children not be placed back into the applicant's care as she has demonstrated a lack of capacity to manage and care for the three children in a safe and therapeutic environment. 17. The applicant relies upon the case notes which record that the eldest child was carried into the car to take him from his school when he was placed in respite care on 22 June 2017. The applicant states that her behaviour management of the child was reasonable when compared to this action. 18. The applicant also states that she is committed to working with Challenge Children's Services to address any concerns and provide a stable placement for the children. The applicant submits that the concerns can be adequately mitigated through the provision of further support by Challenge to maintain the placement. 19. It is clear from the material provided to the Tribunal that the applicant does not have the requisite training to care for children with a trauma background. The applicant may acquire those skills to supplement the obvious capacity she has to care for children who do not come from a trauma background. This is a serious deficiency in the selection of the applicant as a carer for these three children. 20. The applicant also relies upon evidence in the material produced by Challenge Children's Services to illustrate that the children can be defiant and aggressive in their current placement and after removal from her care. The applicant also questions whether the children's current medical needs are appropriately managed. The applicant relies upon school reports for the children to support her contention that the children's behaviour improved whilst in her care. The children have respectively also been in two and three placements after removal from the applicant's care. The children are currently in one placement.

Consideration of risk - legal principles 1. All decisions made under the Act concerning a particular child mandate that the safety, welfare and well-being of the child must be "the paramount consideration" and it has been held that an order removing a child from the care of his or her family should be made if there is an "unacceptable risk" of harm to the child: see M v M [1988] HCA 68; 166 CLR 69 at [25]; Section 9(1); MXS v Department of Family and Human Services (NSW) [2012] NSWDC 63; Department of Family and Community Services (NSW) and the Bell-Collins Children [2014] NSWChC 5, at [70]; Bell-Collins Children v Secretary, Department of Family and Community Services (No. 2) [2016] NSWSC 853, per Justice Slattery at [26]; see also The Department of Community Services v "Rachel Grant", "Tracy Reid", "Sharon Reid and "Frank Reid" [2010] CLN 1 per Judge Marien at [61]. 2. The President of the Children's Court Judge Johnstone in DFaCS (NSW) and the Colt Children [2013] NSWChC 5 at [143] referred to the now well settled law that the proper test to be applied is that of "unacceptable risk to the child" and said: "Whether there is an "unacceptable risk" of harm to the child is to be assessed from the accumulation of factors proved: see Johnson v Page [2007] Fam CA 1235. This test of whether there is an "unacceptable risk" of harm to the child is the sine qua non for the application of the Act: see M v M [1988] HCA 68 at [25]." 1. In Johnson v Page [2007] Fam CA 1235; (2007) FLC ¶93-344 the Full Court of the Family Court referred with approval to an analysis which helps to explain the High Court decision in M v M; 68. In his recent paper entitled 'Unacceptable risk – A return to basics' the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows: 1. The decisive issue is and always remains the best interests of that child. All other issues are subservient. 2. The nature of the risk is best expressed by the term 'unacceptable risk'. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable. 3. Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies. 4. The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk. 5. The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child. 6. The onus of proof in reaching that conclusion is the ordinary civil standard. 7. But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard and thereafter expanded some points contained in the summary. 69. Relevantly for the issues raised in this appeal, he noted that rather than referring to "the Briginshaw test" it was now more appropriate to refer to s 140 of the Evidence Act 1995 (Cth) ("the Evidence Act")…" (emphasis added) 1. In Blinko and Blinko [2015] FamCAFC 146 ("Blinko"), the Full Court of the Family Court discussed the appropriate approach in dealing with issues of risks and the obligation on the Court to consider whether the imposition of conditions or other safeguards would ameliorate those risks in the context of a family placement for the children. The Full Court usefully summarised the relevant authorities as follows at [83]: "It may be taken as well established by a line of authorities generally acknowledged to commence with Russell & Close (Unreported Full Court, 25 June 1993) that the following are correct statements of principle: - If a Court is satisfied that a parent represents an unacceptable risk of harm to a child, then unless that risk is able to be sufficiently managed or ameliorated by, for instance, supervision of any time or communication between the parent and the child, the best interests of the child may require an order prohibiting that parent from spending time or communicating with the child; - If the Court does not find that a parent represents such an unacceptable risk of harm, nonetheless it may take into account anxiety on the part of the other parent arising from their genuine, but not necessarily rational, belief that the parent represents such a risk of harm. In such a case, the other parent's belief must be genuinely held. If it is entirely irrational and baseless, then the genuineness of the belief would clearly be open to doubt. However where such a belief is genuinely held, if the child spending time with a parent would sufficiently erode the other parent's capacity to properly care for the child, then that may of itself mean that the ensuing detriment to the child determines that it is in their best interests not to spend time or communicate with the parent; - Further, where the history of abuse, violence or like behaviour between two parents means that any continued interaction between them would similarly erode the resident parent's capacity to care for the child, the need for peace and tranquillity in their household may be a more compelling need for the child and hence also might justify an order prohibiting the other parent from spending time or communicating with a child: see Sedgley & Sedgley (1995) FLC 92-623." 1. In Blinko the Full Court made it clear that a necessary part of assessing risk requires the Court to also consider possible measures to ameliorate that risk. In that respect the Full Court said at [27]: "A consideration of risk, and factors which impact upon or ameliorate the risk, will in most cases be inextricably linked. That is because "[t]he object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of 'benefit to the child": see Hon John Fogarty AM "Unacceptable Risk – A Return to Basics" (2006) 20 Australian Journal of Family Law 249 at 261". 1. It is of significance that the Full Court found that the learned trial judge fell into "discretionary error" when he failed to consider a range of potential means whereby the risk to the child of having a relationship with the father could have been ameliorated. Possible options, the Full Court noted at [31], were: 1. Permitting the father to send cards, gifts or letters to the child, whether on special occasions or more regularly; 2. Permitting the child to spend supervised time with the father on one or more occasions during the year for a fixed period (on a final and not interim basis); 3. Introducing, on an interim basis, some closely supervised time between the child and the father with adequate counselling supports, and after some period of time reviewing the efficacy of such arrangements; and 4. Requiring the mother and child to engage with appropriate therapists with a view to preparing the child for re-unification counselling with the father. 1. In terms of the obligation to address issues of risk associated with children being subject to or exposed to family violence, in Deiter & Deiter [2011] FamCAFC 82 ("Deiter"), (referred to with approval in George & George [2013] FamCAFC 182 at [21] and see also Enmore & Smoothe [2014] FamCAFC 131 at [35]), the Full Court at [61] said: "The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made…" 1. As the High Court has observed in a number of decisions it is considered in children's best interests to maintain a filial relationship between children and their "parents". In M v M [1988] HCA 68; 166 CLR 69 at [20], the High Court referred to the balancing exercise to be undertaken in assessing risk: "The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v. Lieschke [1987] HCA 4; (1987) 162 CLR 447, at pp 450, 458, 462, 463-464." 1. The respondent contends that the children will be at an unacceptable risk of harm if they are returned to the care of the applicant. The applicant submits that the children would not be at such a risk.

Conclusion 1. The paramount concern in these proceedings is the safety welfare and well-being of the children, as required by section 9 (1) of the Care Act. 2. The applicant provided a number of glowing references and a letter from her general practitioner who stated that she was the best foster carer he has seen. The positive qualities of the applicant as a carer for children were highlighted by all those references. 3. The respondent submitted that the ill-treatment and harm suffered by the children in authorised care represents a breach of the Code of Conduct. It was also submitted that the ill-treatment and harm does not necessarily mean that the children would be automatically removed from the placement. A consideration of all the circumstances is required to assess the nature of the risk of harm on the magnitude of the risk of harm. The respondent submits that those assessments have taken place and the respondent previously worked with the carer to support the children in the placement, but the respondent assessed that the conditions for the children did not improve. 4. The children are vulnerable because they have been separated from their family of origin as they weren't adequately cared for by that family. It is incumbent on the community then to provide a safe and secure setting for those children to the highest possible standard. 5. It was a finely balanced and hard decision for the respondent to place the children in respite care and then not return them to the care of the applicant, because the children had been in her care for a significant time of their life. The children therefore would have developed an attachment to the applicant. Balanced against that attachment and the positive outcomes which maintaining attachments are anticipated to have upon young children, is the detriment which exposing the children to ill-treatment and psychological harm would inevitably impact upon the children's long-term welfare and development. Due to the fact that the children have experienced trauma in their past which required them to be placed under the parental responsibility of the Minister, any further exposure to ill-treatment and psychological harm compounds the original harm to the children. 6. The applicant's submissions are that there is a strong bond and a primary attachment between the children and the applicant. There is no expert evidence to that effect but it is inferred that there was an attachment relationship developing, the quality of which may have been impacted by the harm experienced by the children. Those submissions also recognise that the children should not be exposed to an unacceptable risk of harm. 7. There is legitimate concern that the treatment which the children experienced in the care of the applicant is likely to continue if they remain her care. There were historical reports of interventions and deficiencies in the care provided by the applicant which did not seem to improve with the passage of time. The Tribunal finds that the applicant does not have the requisite skills to care for children with a trauma background. 8. The applicant states that the children have not been able to form a stable attachment in their current placement since being placed into respite care. That is likely to be true, but the sooner that the children can be provided with a secure and stable placement where they are provided appropriate care, the sooner they will be able to attempt to form stable attachments. 9. The events which were reported and investigated were found to have occurred. The Tribunal finds no reason to dispute those findings and accepts that on the balance of probabilities six of the allegations occurred. 10. It is the Tribunal's determination on the balance of probabilities that there is an unacceptable risk of harm to the children if they were to be placed back into the care of the applicant. 11. It is not in the safety welfare and well-being of the children to be returned to the care of the applicant. This is the paramount consideration under the Care Act. 12. The correct and preferable decision in all of the circumstances is to remove the children from the care of the applicant and not return them to her. It is the Tribunal's finding that it would not be in the children interests to again change their current living circumstances to return to the applicant who requires additional training and extensive assistance to care for these children. The applicant has not been able to develop those skills since the children were placed in her care. The children cannot wait for the applicant to develop the skills required to properly care for them. The Tribunal accordingly affirms the decision of the respondent to remove the children and finds no current reason to restore them to the care of the applicant.

Order 1. The decision and order of the Tribunal shall be: 1. The decision to remove from the applicant the responsibility for the daily care and control of the children 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: 14 December 2017