WM v Barnardos Australia [2011] NSWADT 164

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: WM v Barnardos Australia [2011] NSWADT 164 Hearing dates: 15 December 2010 Decision date: 06 July 2011 Jurisdiction: Community Services Division Before: S Higgins, Deputy President P Foreman, Non judicial member J Green, Non judicial member Decision: The decision of the respondent is set aside and in substitution thereof a decision that the name of the applicant be restored to the respondent's family day care carer register. Catchwords: Childcare Provider Registration-Cancellation Legislation Cited: Administrative Decisions Tribunal Act 1997 Children and Young Persons (Care and Protection) Act 1998 Children's Services Regulation 2004 Cases Cited: Suzanne Frugtniet v Administrative Decisions Tribunal (Appeal Panel) & Anor; Brian Frugtniet v Administrative Decisions Tribunal (Appeal Panel) & Anor [2005] NSWCA 257 Q v Wyong Shire Family Day Care [2007] NSWADT 79 YG & GG Community Services [2002] NSWCA 247 Category: Principal judgment Parties: WM (Applicant) Barnardos Australia (Respondent) Representation: Counsel JM Patel (Applicant) S Kluss (Respondent) Rasan T Selbah Associates (Applicant) Muggenthaler and Associates (Respondent) File Number(s): 104027 Publication restriction: s126 of the Administrative Decisions Tribunal Act 1997

REasons for decision

Introduction 1COMMUNITY SERVICES DIVISION (S Higgins, Deputy President, P Foreman Non-Judicial Member and J Green Non-Judicial Member): The applicant, WM, seeks review of a decision made by the Chief Executive Officer (CEO) and Director of Welfare of Barnardos Australia (the respondent) to 'de-license' the applicant from the organisation's family day care programme. 2The respondent is authorised (i.e. licensed), under the Children's Services Regulation 2004 (the Regulation), to provide home based children's services. These services are provided by family day care carers, appointed by the respondent and listed on its family day care register as required under clause 100 of the Regulation. In November 2008, the applicant was appointed by the respondent to be a family day care carer and her details were placed on the respondent's register of family day care carers. The respondent's decision to remove her from its register (i.e. de-license her) arose following an incident that occurred, on Friday 21 July 2010, when the applicant had in her care two small children (child A and child B). The children were in her care in her capacity as a registered family day care carer of the respondent. At about 4.30pm on the day in question the applicant left child A in her unit, while she took child B to his mother who lived in the units behind the applicant and who was waiting at the fence to collect her son. At the time the applicant had an IT technician working on her computer. 3The respondent accepted that the applicant regretted her actions in leaving child A in her unit. However, it formed the view that the applicant had failed to understand the serious nature of her conduct. The respondent was also concerned that the applicant had failed to maintain proper records of when children were collected by the parents from her care. 4WM's application was heard on 15 December 2010. At the hearing, the parties relied on material that had been filed. This included an affidavit by the applicant sworn on 9 November 2010 and a number of affidavits filed by the respondent. The affidavits relied on by the respondent were as follows: an affidavit of the mother and father of the child A; an affidavit of the friend of the mother of child A who had accompanied the mother to collect her child on the day in question; an affidavit of Louise Voigt, CEO of the respondent an affidavit of Judy Luong, Child Development Officer employed by the respondent; an affidavit of Ramona Debs, Child Development Officer employed by the respondent; two affidavits of Trish Gibbs, Programme Manager and authorised supervisor employed by the respondent; and an affidavit of Rosemary Hamill, Senior Manager employed by the respondent. 5At the conclusion of the hearing of submissions of the parties, the Tribunal made orders for the filing and serving of additional documents and submissions. Documents and submissions were filed in accordance with the orders that were made.