L & D Woodside v Minister for Community Services [1999] NSWADT 1

CITATION: L & D Woodside v Minister for Community Services [1999] NSWADT 1

DIVISION: Community Services

APPLICANT: Dorothy Woodside Lynette Woodside

RESPONDENT: Minister for Community Services

FILE NUMBER: 249

HEARING DATES: 15/09/97; 19/09/97; 20/11/97; 28/01/98; 29/01/98; 30/01/98

SUBMISSIONS CLOSED: 11/12/98

DATE OF DECISION: 9 February 1999

Nancy Hennessy - Deputy President BEFORE: Lynn Houlahan - Member Clarita Norman - Member

PRIMARY LEGISLATION: Children (Care and Protection) Act 1987

APPLICATION: - Application for review of decision to impose conditions on licence for child care service

MATTER FOR DECISION: Principal matter

Applicant: W K Gilbertson of King Cain, solicitors REPRESENTATION: Respondent: M O'Brien, counsel, instructed by Crown Solicitors Office

ORDERS: Minister's decision to impose conditions on licence affirmed.

Background to the appeal 1 This is an appeal by Dorothy Woodside and Lynette Woodside against a decision of a delegate of the Director General of the Department of Community Services (the Department) to impose conditions on the licence of Kelso Kindy. Kelso Kindy is a privately owned child care centre which opened in January 1994 and was owned and run at that stage by Delma Field and Lynn Woodside. In July 1995, Dorothy Woodside, Lynn Woodside's sister in law, commenced working at the centre in the office. On 3 October 1995, Dorothy Woodside purchased an interest in the business from Delma Field. From that time Lynn Woodside took over the administration of the centre and Dorothy Woodside worked directly with the children, along with other staff. 2 On 20 February 1996, the Department received a series of "notifications" concerning the conduct of Dorothy Woodside towards the children at the centre. The Department investigated three of these allegations but in each case, abuse was "not substantiated." This means that, in the view of officers of the Department, it would have been extremely difficult, if not impossible, to prove the allegations. However the Department referred the notifications to the Police Child Mistreatment Unit in Bathurst for their consideration pursuant to section 22(7)(b) of the Children (Care and Protection) Act 1987. 3 On 23 April 1996 the Department received a further notification which related to alleged sexual abuse by Dorothy Woodside on a child who attended Kelso Kindy. A Departmental officer, Michael Lynch, investigated and confirmed this allegation. At that time, Ros Mordue from the Department issued a verbal direction to Lynn Woodside that Dorothy Woodside be stood down from her normal duties. The matter was also referred to the police who, after some investigation, decided not to lay any charges. 4 On 4 December, 1996 the police informed the Department that two charges had been laid against Dorothy Woodside in relation to the assault of two children. These charges concerned an incident where Dorothy Woodside was alleged to have thrown a child, T, onto a sofa and another incident where she was alleged to have forced a piece of orange into the mouth of a child, D. Dorothy Woodside pleaded not guilty to these charges. 5 On 13 March 1997 the Department forwarded a "Notice of Intention to impose further condition on Licence" to Lynn and Dorothy Woodside as the licensees of Kelso Kindy. The notice said that the licence would be amended in 28 days to prevent Dorothy Woodside from being at the service when children are present. The reason for the 28 day delay is to give licensees an opportunity to put any arguments to the Department about the conditions before they come into effect. The Department took no further action pending the completion of the police investigation. The appellants gave evidence which criticised the Department's conduct during this period. The issues which arose are discussed at the conclusion of this decision under the heading "Observations and Recommendations". 6 On 12 June 1997, the Local Court found Dorothy Woodside guilty of two counts of common assault against the children T and D. She was placed on a good behaviour bond for a period of 12 months with a recognisance of $1,000.00 in relation to the first charge and a fine of $1,000.00 and an order to pay court costs in relation to the second charge. 7 On 12 August 1997, a delegate of the Minister for Community Services served a notice on Dorothy and Lynette Woodside advising them that their licence had been amended by imposing further conditions effective from 18 August 1997. These conditions were as follows: That Dorothy Woodside absent herself from the service at all times at which children are present. That Dorothy Woodside absent herself from the service half an hour before and half an hour after the hours of operation. 8 The grounds for the imposition of these conditions were that: "It is considered that children attending the service may be exposed to an unacceptable risk of abuse whilst the said Dorothy Woodside is also in attendance at the service." 9 The particulars given were: "It has been confirmed that convictions have been recorded against Ms Dorothy Woodside on 12 June 1997 on two counts of assault." 10 The appellants received that notification on 19 August 1997 and lodged an appeal with the Tribunal on the same day. The hearing took place over six days on 15 and 19 September 1997, 20 November 1997 and 28, 29 and 30 January 1998. Pursuant to s 56 of the Community Services (Complaints, Appeals and Monitoring) Act 1993 the Tribunal, with the consent of both parties, decided that the hearing should be conducted in the absence of the public. Leave was granted to both parties to be represented by a barrister or solicitor. 11 Dorothy Woodside appealed to the District Court against the criminal convictions. The Tribunal agreed not to finalise its reasons until the outcome of that appeal was known. On 27 November 1998, the District Court found the two assault allegations proven beyond reasonable doubt. However, under s 556A of the Crimes Act 1900 (NSW) the Court did not proceed to a conviction but conditionally discharged Dorothy Woodside on a two year good behaviour bond. The Court also ordered that she may not seek employment in the pre-school industry for two years. Issues and legislation 12 Can the Tribunal deal with the appeal? On 1 January 1999, the Community Services Appeals Tribunal (CSAT) was abolished and a new Community Services Division of the Administrative Decisions Tribunal (ADT) was established. The effect of Schedule 5, Clause 14 of the Administrative Decisions Tribunal Act 1997 (ADT Act) is that where a matter has been heard but not determined before the abolition of the CSAT, the persons hearing the matter are to determine the matter sitting as the ADT. But the matter is to be determined under the old legislation, that is, as if the amending legislation had not been enacted (Schedule 5, Clause 19 ADT Act).