Administrative Decisions Tribunal New South Wales Medium Neutral Citation: WI v Fairfield City Council [2011] NSWADT 279 Hearing dates: 1 June 2011, 1 July 2011 Decision date: 28 November 2011 Jurisdiction: Community Services Division Before: L Goodchild, Judicial member M Bolt, Non Judicial member P Foreman, Non Judicial member Decision: 1.The respondents decision to remove the applicants name from the family day care register is set aside. 2. In substitution of that decision, the applicant is to be reinstated on the register of the family day carers required to be maintained by the respondent under cl.100 of the Children's Services Regulation 2004. Catchwords: Childcare provider registration - removal from register. Legislation Cited: Administrative Decisions Tribunal Act (NSW) 1997 Children and Young Persons (Care and Protection) Act 1998 Children Services Regulation 2004 Cases Cited: M v M (1988) 166 CLR 69 Suzanne Frugtniet v Administrative Decisions Tribunal (Appeal Panel) & Anor; Brian Frugtniet v Administrative Decisions Tribunal (Appeal Panel) & Anor [2005] NSWCA 257. YG & GG v Minister for Community Services [2002] NSWCA 247. McDonald v Guardianship Administration Board [1993] 1 VR 521 at 530. Category: Principal judgment Parties: WI (Applicant) Fairfield City Council (Respondent) File Number(s): 104025 Publication restriction: S126 of the Administrative Decisions Tribunal Act 1997 applies. REASONS FOR DECISION Background 1The applicant, WI, made an application to the Administrative Decisions Tribunal ("this tribunal) pursuant to section 55 Administrative Decisions Tribunal Act (NSW) 1997 ("the Tribunal Act "), for review of a reviewable decision. This tribunal's power on review of a reviewable decision is to decide what the correct and preferable decision is having regard to the material before it, any relevant factual material and any applicable written or unwritten law (section 63 Tribunal Act ) . 2The decision subject of the review is contained in correspondence from the respondent to the applicant dated 22 July 2010, notifying the applicant that her name had been removed from the Fairfield City Family Day Care Register pursuant to clause 6.2 of the Fairfield City Family Day Care Providers Agreement ("the Providers Agreement") and Regulation 101(3) of the Children Services Regulation 2004 ("the 2004 Regulations"). The respondent states in that correspondence that it " made this decision based on the outcome of an investigation conducted by the Joint Investigative Response Team (JIRT)" . Some brief further information identified in the correspondence as " Details of the investigation " were provided by dot point in this correspondence. 3The circumstances of the situation are that the Department of Community Services ('the DoCS") received a risk of harm report in relation to a child who attends the family day care service operated by the applicant (herein referred to as "F"). The report was in respect of the carer's son who was 12-years-old at the time (herein referred to as "B"). B, who resides with and is in the full time care of the carer, was the subject of the report to the DoCS Helpline. That report led to the investigation by the JIRT. No documents from the DoCS with respect to the report were before this tribunal. A letter dated 21 July 2010 from the JIRT to the Manager Children and Family Services, Fairfield City Council was the sole JIRT documentation before this tribunal. 4After completing an 'investigation', the JIRT ' substantiated ' the risk of harm and B became listed on a database held by Community Services referred to as a Person Causing Harm database. The JIRT held ' concerns that other children may be at risk of significant harm in the care of the' applicant and given those risks, recommended that the carer be deregistered. No reasons were given by the JIRT as to why or what matter caused the JIRT to hold concerns with respect to other children being at risk of significant harm whilst in the care of the applicant. No information was provided as to what kind of " investigation " the JIRT had undertaken, nor the scope of any such investigation. 5The allegation reflected in the JIRT correspondence dated 21 July 2010 was that the applicant's twelve-year-old son, B, indecently assaulted a 3 yr. old child, F. F attended the family day care services operated by the applicant. The assault is alleged to have occurred on the premises of the Day Care centre that the applicant operates in her home. The mother of the child contacted the respondent. Officers of the respondent met with the mother of the child at the offices of the Family Day Care on 25 June 2010. 6After receiving the decision contained in the correspondence from the respondent dated 22 July 2010, the applicant subsequently requested an internal review of the decision. By correspondence dated 7 September 2010, the applicant was notified that the internal review affirmed the primary decision. 7The applicant filed an application in this tribunal on 11 October 2010. She filed an affidavit on 21 January 2011. Jurisdiction 8The decision to remove the applicant's name from the respondent's register is reviewable by this tribunal: see section 38(1) of the Tribunal Act and clause 123(2) of the 2004 Regulation . The respondent's interim application 9The respondent filed an Interim Application for Original Decision on 11 March 2011. Pursuant to section 73(5)(g)(ii) of the Tribunal Act, the respondent sought dismissal of the applicant's proceedings on the basis that the applicant's case was frivolous or vexatious, otherwise misconceived or lacking in substance and having no tenable basis in law. That application also sought an order for costs against the applicant. That application was heard at the same time as the applicant's application. 10In support of its section 73(5)(g)(ii) application, the respondent submitted the following: 8.1 The proceedings challenge the wrong decision, and seek orders against the wrong decision maker i.e. JIRT and DOCs; 8.2 That the tribunal has no jurisdiction to order the respondent to authorise the applicant to be a carer in its local government area, as the applicant does not reside in the respondent's local government area; and 8.2 The proceedings are futile as the applicant does not seek to be authorised as a carer with the respondent - she instead seeks to be authorised to be a carer with a different council. 11We do not agree with the submissions made by the respondent and we consider that the respondent's interim application should be dismissed. 12Self evidently, the applicant does not seek to challenge the ' wrong' decision maker. The applicant challenges the decision made by the respondent contained in correspondence dated 29 July 2010. As we understand the case for the applicant, the applicant seeks to make submissions with respect to the JIRT position in support of her case seeking a review of the respondent's decision. 13With respect to the respondent's challenge to this tribunal's jurisdiction, any decision by this tribunal would not be a decision to order the respondent to authorise the applicant as a carer . Further, it is not the case that the tribunal's role is to make a finding that either the JIRT decision, or the Community Services Decision purported action placing B's name on a database, must be found to be incorrect . 14In conducting this review, the Tribunal 'stands in the shoes' of the administrator, the respondent, and is required to make the ' correct and preferable decision ' having regard to the material then before it (section 63(1) (of the Tribunal Act ). This includes not only the material available to the respondent at the time the original decision was made ( Suzanne Frugtniet v Administrative Decisions Tribunal (Appeal Panel) & Anor; Brian Frugtniet v Administrative Decisions Tribunal (Appeal Panel) & Anor [2005] NSWCA 257 at [45]) but any material that postdates that decision ( YG & GG v Minister for Community Services [2002] NSWCA 247 at [25]). The review is to be conducted " without any presumption as to the correctness of the decision ": McDonald v Guardianship Administration Board [1993] 1 VR 521 at 530 (SupCtVic, Appeal Div). 15The evidence of the applicant confirmed that she had moved to East Hills and was intent on commencing her work as a carer from her home, ultimately seeking registration through Bankstown City Council. She stated that the home in East Hills included a large area downstairs that was purpose built to facilitate the continuance of her work as a carer from home. She stated she was completing a diploma for childcare. 16The respondent is licensed pursuant to Part 3 of Chapter 12 of the Children and Young Persons (Care and Protection) Act 1998 ("the CYPCP Act"). The applicant was registered as a family day care carer on a Family Day Care register kept by the respondent licensee in accordance with the 2004 Regulations. There was no evidence to support the contention that once a carer relocated outside the Fairfield City Council Local Government area, that that carer is no longer eligible to remain on the Fairfield City Council Family Day Care Register. 17Part 7 of the 2004 Regulation regulates the administrative requirements of the licensee of children's services. Clause 100 (1) of the Regulation itemises the particulars to be kept on the register in relation to each family day care carer. Clause 100(2) regulates those matters upon which an " authorised supervisor " must formulate an opinion before entering the name of a person as a family day care carer on the register for service. Clause 100(3) requires that before entering the name of a person on the register for the service as a family day care carer, the licensee must carry out an inspection of the prospective carer's home and undertake an assessment as to whether the prospective carer's home is adequate for provision of the service. 18Clause 101(1) provides the circumstances in which the Director-General may direct the licensee of a family day care children's service to remove a family day care carer's name from the register for the service in the following circumstances: (1) The Director-General may direct the licensee of a family day care children's service to remove a family day care carer's name from the register for the service: (a) if the carer: (i) is convicted of a notifiable offence, or (ii) fails to comply with an obligation that this Regulation requires the licensee to impose on the carer, or (b) if any part of the grounds and buildings of the carer's home that is available for use in connection with the service and is accessible to children, or any equipment used at the home in providing the service, fails to comply with the Part 3 facilities and equipment requirements applicable to family day care children's services, or (c) if a person normally resident at the home of the carer: (i) is convicted of an offence about which the carer is required to notify the Director-General, or (ii) has injured a child provided with a service at the home, or (iii) in the opinion of the Director-General, has taken any verbal or physical action against a child provided with a service at the home that has seriously humiliated, frightened or threatened the child. Clause 101(3) allows the licensee of a family day care children's service to remove the name of a family day care carer from the family day care register for the service at any time and for any reason. It is under this section that the respondent exercised its power of removal. 19Not surprisingly, the 2004 regulation does not impose a geographical prerequisite to eligibility in order for a carer to be entered onto or to remain on the register held by a particular licensee. There was no evidence before this tribunal that, by reason of the applicant having moved from one local government area to another, she was no longer eligible to remain on this particular licensee's register, or was subject to immediate disqualification and removal from the Register such that this application is futile. 20It may be the case that the Fairfield City Council Family Day Care register is only open to those carers who reside within its local government area. No evidence with respect to that requirement was before this tribunal. There was no evidence before this tribunal, however, that the Council is required to automatically remove the carer from the Fairfield City Council Family Day Care Register once that carer moves outside the Fairfield City Council local government area. It may be the case that when a carer is registered on the Family Day Care register of one local government area and moves to another local government area, that carer simply makes an application to transfer her registration from one licensee to the other. However, as already stated, no evidence was before this tribunal in relation to those matters. 21The applicant has, by virtue of the relevant legislation, a legal right to a review of the decision that has been made. There is little doubt that the decision to remove the carer from the Family Day Care Register in the circumstance of these proceedings is a serious matter. The evidence discloses in these proceedings that this was the applicant's occupation and business. The applicant in these circumstances is entitled to seek, and has appropriately sought, to have the ' status quo' restored, such that she seeks to be restored to the respondent's register until such time as further action is required (if it is required) as a consequence of her moving residence from the respondents local government area. 22The applicant proposes to seek registration on a day care register in another local government area. These proceedings are not in those circumstances futile. To the contrary, the fact of the report and any resultant action that gave rise to these proceedings would inevitably be relevant matters to be considered by any future licensee when it is considering that registration application. The result of these proceedings is crucial to the applicant's pursuit of her ability to continue to engage in her chosen occupation. This Tribunal further notes that by correspondence dated 30 July 2010, the respondent advised the Director Child & Family Services Community Services of the fact that the applicant had moved to the Bankstown Local Government area and further that the applicants son B, had been placed on a Person Causing Harm database. The authority of the respondent to disclose and use such information in the circumstances is not clear. The applicant's evidence 23With respect to the applicant's substantive application for review of the decision to remove her from the register, the applicant filed and served an affidavit. She was cross-examined. 24The applicant has four children and aged 27, 25, 19 and her youngest boy, B who was 13 at the time of the hearing. Her two youngest children live with her, her 19 year old daughter and B. 25The applicant was born on 4 September 1962. At the time of removal from the register, she had been a family day carer since 1992 and had been registered with Fairfield City Council since that time. Her evidence was that she has worked full time as a family day care carer for the majority of time. It was the applicant's evidence that she had never received any complaints as a carer. 26Clause 4 of the Providers Agreement provides at subclause 4.4 that the respondent will review the carer's conditions of registration annually. No evidence was lead by the respondent with respect to any 'review' undertaken by the respondent pursuant to this term. No evidence was lead by the respondent of any complaints against the applicant since she was first registered as a carer, other than the circumstances that gave rise to these proceedings. 27The applicant was not able to recall the exact date that she commenced to care for the child F, but stated that it was in approximately July 2009. She said that he was a difficult child to care for and required a lot of attention and constant supervision from her. She indicated that he displayed aggressive outbursts against other children in a fashion of hitting and swearing at the other children. 28The applicant states that she informed the Family Day Care licensee of F's behaviour. She annexed to her statement an undated letter written to F's parents by a Kim Fowler of the Family Day Care Centre with respect to F's behaviour. This letter confirms to an extent, the applicant's evidence of her observations of F's behaviour. The applicant gave evidence that she kept a diary of F's behaviour from January 2010. She says that she kept these notes on the advice of the Family Day Care Centre. She attached to her statement a four-page document, which she said in her evidence were photocopies of diary notes. The applicant also recalled in her statement that she had kept F's parents informed of their child's behaviour and had advised them on many occasions to take him to 'Fairstart'. She further stated that she had informed the Child Development Officer ("CDO") of Fairfield City Council that she had to keep very tight supervision on F at all times. 29In cross examination, the applicant confirmed that she did not show the CDO the diary notes referred to above but stated that she always told the CDO what was happening. On one occasion, she said she saw the CDO observe F's behaviour . She said F actually kicked and swore at the CDO. 30The applicant says that in May of 2010 when a CDO visited her whilst she was with the children, the CDO observed F. The applicant referred to Annexure "C" of her statement; a Family Day Care Visit Form dated 18 May 2010. This form recorded that there was a discussion of F's behaviour, that ' he needs constant adult supervision to make sure that he and his peers experience positive interaction' . This annexure reflected the applicant's contention that she had given F's parents a Fairstart Referral form recording the following: " Mervat mentioned that a few times she has given F's parents a fair start referral form, however unsuccessful. F's Mum replied that her husband does not agree with it and believes there is nothing wrong with his son. Mervat has to keep tight supervision at all times ". 31In cross-examination it was put to the applicant that she did not in fact provide the form to F's parents. Her response was firmly that she did. She said: " I swear I did ". It was further put to her in cross-examination that she had never suggested to F's parents that their son's behaviour was unusual or out of the ordinary. Again, she responded that she did. 32The applicant stated in her evidence that F was toilet trained; that when he needed to go to the toilet he would inform her that he needed to go; that if he needed to urinate he would take no more than 2 minutes and he knew how to clean himself and wash his hands; that if he needed to poo, he would call her once he was done to clean him. She stated that she knew when he was in the toilet and would keep an eye on him. 33In cross-examination, the applicant did not resile from her evidence that F swore and hit Ms. Arbarca (CDO for Fairfield City Council). The applicant was firm in regard to her observation that F had difficulties getting into his parent's car and that on one occasion, the applicant had to call the child's father to pick him up. She confirmed that the child was, in her words, " overly hygienic " for a boy of his age. She confirmed that if his clothes became wet, he was disgusted and he would come immediately to her and demand that he be changed. The applicant gave evidence that F was more difficult than other children. 34The applicant gave evidence that her son, B, had little to no involvement with the children. In her statement filed on 21 January 2011, she stated that in 2010, B commenced studies at a private school some distance from his home and that he would leave the home each day between the hours of 7.00 -7.30am. She stated that on Mondays, her husband would pick B up at 6.00pm from school once he finished soccer training. On Tuesdays, the teacher from B's school would drop B off between 5.30 - 6.00pm. On Wednesday, the applicant was not working, so she would pick B up from school. On Thursdays, B was dropped off, again by a teacher, between 5.30- 6.00pm. On Fridays he was dropped off by a family friend or her husband between 5.30-6.00pm. The applicant confirmed that during the school holidays, B would be out with his cousins for the majority of the time, but that when he was at home, he was either on the computer playing games, watching television or reading a book. She stated that the computer was located in the living area in the section of the house she had divided for the children's play area and she could see what he was doing while she is was working. She said in her statement that they only have one television in the house, located in the same area as the computer. She said that B had limited involvement with the children during the school holidays. 35Under cross-examination, the applicant confirmed that during the school holiday period it would be very rare for B to see F and the other children. She said: " B sometimes he is there when school holiday, of course he is there ". When it was put to her that B had frequent interaction with F, she said: " No, where, when? " Counsel for the respondent was not able to be anymore specific in terms of defining the extent or nature of frequency of such interaction. 36In her statement of 21 January 2011, the applicant states that Vicky Niforos and Detective Sergeant Terry Murray came to her house early in the morning and interviewed her son. The respondent filed affidavits from Vicky Niforos and Detective Sergeant Terry Murray who both deposed that they had not at any time attended the applicant's house or i nterviewed the applicant's son. Neither witness was required for cross-examination. 37Under cross examination it became apparent that the two names to which the applicant referred in her statement were sourced from the two named signatories at the bottom of the correspondence dated 21 July 2010 from JIRT to Fairfield City Council. This issue was cleared up to a degree in re-examination. Whilst it is unfortunate that this material appeared unclarified in a statement of the applicant, the explanation by the applicant is credible and it does not cause the tribunal to necessarily make an adverse finding with respect to the credit of the applicant. The applicant was forthright in her evidence. She was unshaken in cross-examination. She was not evasive. English was not her first language and she gave her evidence in English and appeared to understand the questions put to her as her answers were appropriately responsive and to the point. On this basis, we consider that the applicant was a witness of truth. The critical incident 38In her statement of 21 January 2010, the applicant stated t hat on 24 June 2010, she received a phone call from F's father, BE, in which he said: " F complained to his mum last night and said that B pissed on his hand, saying to him it was a lolly ". The applicant states she replied; " That is impossible. B did not even see him yesterday ". 39The applicant stated that BE then asked her: " Well, was there any other adult in the house that might have taken F to the toilet ?" The applicant stated her reply: No, of course not. F goes to the toilet on his own or with me only. What are you trying to say ?" The applicant stated that BE then replied: " Well, if it wasn't B, maybe it was another adult?" The applicant said that the discussion went on for approximately ten minutes and she said that she had explained to F's father that his son would tell her if he was ' pissed on' as his son is " overly hygienic ". 40The applicant went on to state that she was then requested by Fairfield City Council to stop work immediately on 25 June 2010, until JIRT completed their investigations. She also included in her statement that a couple of days later, a Vicky Niforos and Detective Sergeant Terrie Murray came to her house early in the morning and interviewed her son about the allegations. (The applicant's mistake as to the names of those officers has been referred to earlier in these reasons). She said she saw B deny the allegations made against him in relation to F, and that she heard 'Vicky' say to B: " Well, I don't believe you ". She recalls B being visibly upset. It is not at all clear if the child was interviewed in the company of his parent or a supportive adult. The applicant states that on 29 June 2010, she received a letter from Fairfield City Council informing her that she had been stood down as a carer. 41The applicant concluded her 21 January 2011 statement by stating that she has since moved to East Hills and that she intends to commence work as a carer from home again through Bankstown City Council. 42In cross-examination, the applicant disagreed with the contention put to her that she was strict with discipline. Her evidence was that she does not use physical punishment, that she has not smacked her children "since years and years ago", but that she may have given B a "little smack on the bottom" when he was five or six if he did something that warranted this. 43The applicant was cross-examined in relation to an incident in 2005, arising from a statement B had made to a teacher at his school about the applicant having hit B across the face. This caused an investigation by the Department of Community Services. In cross-examination, it was put to the applicant that when B had made a complaint to the school, the applicant had accused B of lying. The applicant denied this. She stated: "I said the truth. I said I hit him on his tummy to go finish his breakfast and to go to school. I didn't say he was lying and he wasn't lying. He said 'my tummy'. He said: 'to school my tummy ache'. The DoC's came to my house and they took him to hospital and my husband went with him and they find there's nothing wrong with anything and he came back home. That's what happened". 44The applicant confirmed that it is likely that B will continue to reside with her until he is at least 18 years old, until he gets married and moves on. 45In re-examination, the applicant clarified the punishment she gave to the children in her care and she confirmed that she was not allowed to hit or put them in the corner by themselves. 46She stated: " ..... if they're playing with something and they are naughty or throwing things or anything, I take toys from them and get them to sit next to me and not play ." 47Also in re-examination the applicant was asked to explain why it was that, when F made comments such as, " My mum bad, my mum hits me ", she did not report the incidents that occurred. Her comment was: " Because he's saying that and I didn't see anything on him and sometimes he lies. He doesn't tell the truth all the time ". 48The applicant had, at the time of the hearing, moved to East Hills and had recently had a house built. She was anticipating that she would continue to provide day care services for children that the house had been purpose built, to some extent, in order for her to continue with the provision of those services. A large room had been constructed especially for the children. The respondent's evidence 49The respondent relied upon an affidavit from Vicky Niforos, Manager Casework for the Bankstown Joint Investigation Response Team (JIRT) dated 13 May 2011. As referred to earlier in these reasons, Ms Niforos stated that she had never attended the home of the applicant, nor had she spoken to B. Documents produced pursuant to Section 58 of the Tribunal Act were formally tendered. There were 21 specific documents contained in that tender. None of the respondent's witnesses were required for cross-examination. 50The respondent tendered documents produced under subpoena from the Department of Human Services - Community Services. Those documents dated from 2004 and primarily concerned the reporting and related action with respect to the allegation that the child B had himself been hit. The records included a document which comprised a review of B by a Chief Medical Officer at Fairfield Hospital in October of 2004, who reported:- "The young fellow, B..... being active, happy, alert, wearing clean clothes and in good interaction with his father. Not frightened of talking freely with no abnormality that could be found on physical examination. No bruising old or new or bony tenderness with soft abdomen. Normal vital signs with no signs of bleeding from his nose. The child denied he was hit to the face. He said that his mother hit him by an open hand to the stomach after he was trying to wake up his sister". This case was closed in March of 2005. 51The respondent relied upon an affidavit from Catherine Avero the Manager - Fairfield City Family Day Care dated 12 May 2011, an affidavit from Araceli Abarca the CDO for Fairfield City Council dated 12 May 2011 and an affidavit of MG, the mother of the boy F dated 12 May 2011. 52In her affidavit, Ms Avero deposed to B being sometimes in attendance during the CDO visits. Annexed to her affidavit were two documents. The first was a file note from 2005 which recorded that B was observed watching an M rated film "Troy". The second was a Visit Form completed by Araceli Abarca dated 12 April 2010, noting that B was present during the visit. Ms Avero annexed the notes of the meeting she attended with the mother of F on 25 June 2010, when the critical incident was reported to the respondent. Those notes reported the mother, MG, having stated the following: "She said that on the way home, in the car, F made comments about his day at the Family Day Care. He said to Mum: " B is yucky, disgusting. He did a wee on my hand". He proceeded to say that B has said to him that his 'ayb' - Arabic word for penis - was 'a lollypop and you suck it'. I put it (B's) in my mouth." 53In her affidavit, MG denied that her child had been violent with her, his siblings or any other children. She stated: " Our challenges were more verbal than physical ". MG deposed to receiving the correspondence from Kim Fowler and to recalling the applicant having made comments to her from time to time with regard to F, but that those comments included statements such as " too much energy, is out of control, said a bad word ". She stated that she was never told by the applicant that F's behaviour was out of the ordinary for a 2-3 year old child. 54To summarise MG's evidence in response to the applicant's statement, MG denied the allegations that F hit or kicked her, swore at her or threw shoes at her. She denied that she hit F on the bottom and stated that she did not believe that F would say that MG had hurt him. Further, she did not believe that F would have said the things that the applicant reported in her diary entries. She stated that she was not notified about F having hurt a child. She denied that the things referred to by the applicant ever happened and stated: "... what the applicant has written is false". She denied that either she or her husband was ever advised by the applicant to take F to Fairstart. She denied the assertion that F was an " overly hygienic " boy for his age. She stated that she saw the applicant's son B present at the house on most mornings when she dropped F off and that " he would open the door for us ". She stated that B was also present at the house on approximately 2 of 3 afternoons per week when she would pick F up. She stated that it was clear that F had spent time with B, as F would talk about B when he came home, often saying words to the effect: " B gave me a lolly today because I was a good boy "or " B hit me ". She recalled on one occasion when she raised this with the applicant. She reported that the applicant responded as follows: 'No- he wouldn't do that. B is always in his room doing homework and F is always trying to go to his room to bother him' . The applicant was not cross-examined about this exchange. 55MG then reported in her affidavit the critical incident in the following terms: On Thursday 24 June 2010 I picked F up from the Service at approximately 5.30pm. In the car on the way home he said to me words to the effect: F: B said that his Ayb [Arabic for penis] is a lollypop. Me: What? What do you mean, what did he do? F: B's yucky. He weed on my hand. Me: Where did this happen? F: In the toilet. I then stopped the conversation as I was driving and called my husband and asked him to leave work early and meet me at home. At home, I said to my husband BE words to the effect "ask F what B done" as I didn't want to repeat it in front of F an wanted to see if F would repeat the same thing again. A conversation then took place to the following effect: BE: What did B do? F: He said that his Ayb [Arabic for penis] is a lollypop and weed on my hand. BE: Show me - what did he do? F then pulled his pants down and bent his head down towards his penis and made a sucking action with his mouth towards his penis. It is noteworthy that this version of events relating to the critical incident is not consistent with the version of events reported by Ms Avero in her notes of the meeting she had with MG on 25 th June 2010, nor is it consistent with the version that the applicants stated F's father had put to her when he rang her on the evening of 24 th June 2010. 56The affidavit of Ms Abarca, the CDO, noted that she had, on one occasion, witnessed F hitting another child with a wooden hammer. The witness deposed to attending on the premises of the applicant on a monthly basis since October 2009, having taken over that role from Kim Fowler. She stated that she suggested to the applicant that she keep a diary with respect to F's behaviour. She was never shown the diary entries. She recalled having witnessed the child F not listening to his mother on an occasion when the child was being dropped off at the centre. She annexed the Visit Forms she completed following her visit in May 2010, when she observed F to be acting out more than usual, verbally aggressive and teasing other children. She annexed F's Progress Report prepared by her. This progress report noted a number of positive matters with respect to F as well as a number of areas where F was developing and required support to play positively with other children. The report also noted the ' lovely interaction with the carer and me, however needed support with peers' . Summons to Department of Human Services A summons to give evidence issued to Human Services - Community Services was filed by the applicant on 21 January 2011, seeking from " all documents, notes, entries, memos, statements, reports and all other relevant document[s] relating to the child [B] and [the applicant] ". By affidavit sworn on 11 February 2011, for the purposes of compliance with the summons, Guiseppina Pin, Acting Manager Case Work, deposed that no documents were produced which contained notifications of abuse and reports of suspected risk of harm. The affidavit stated at paragraph 5 that these documents were "withheld in accordance with Section 29(1)(d) and (e), of the Children and Young Person's (Care and Protection) Act 1998". Those subsections relate to persons who make a report to the Director-General, the admissibility of those reports and the compellability of persons making the reports. It was further noted in Ms Pin's affidavit that there was no proposal to investigate or assess any of the notifications or reports referred to in clause 5 of this affidavit, beyond what is was demonstrated by the papers produced. Neither the respondent nor the applicant sought Ms Pin for cross-examination. As a result, the evidence before this tribunal was that, other than the material produced, the Department of Human Services had no material to be produced in answer to the summons. 57It is necessary at this point to make note of the legislative amendments that were made to section 29 of the Children and Young Persons (Care and Protection) Act 1998, with particular regard to amendments made to subsection 29(d), 'Protection of persons who make reports to provide certain information'. The most relevant amendment was effected by Schedule 1, clauses 1 - 4 of the Children and Young Persons (Care and Protection) Amendment Act 2010 . Prior to that amendment, which commenced operation on 1 January 2010, a report made "in good faith to the Director-General or to a person who has the power or responsibility to protect the child or young person or the class of children or young persons" was not admissible in "any proceedings" (subsection 29(d) and a person was not compellable "in any proceedings" to product or give evidence of any such report. That situation changed with the commencement of the 2010 amendment to the Act. The new section 29(d) created certain exceptions to general protection formerly afforded by section 29. Among those exceptions are care proceedings in Children's Court (section 29(d)(i)), proceedings in relation to a child or young person under the Family Law Act 1975 (section 29(d)(ii) and "proceedings in relation to a child or young person before the Supreme Court or the Administrative Decisions Tribunal " (section 29(d)(iii)). 58Having regard to the commencement date of the 2010 amendment to subsection 29(d) of the Children and Young Persons (Care and Protection) Act , it is clear that Ms Pin's recourse to the section 29 protection cited in paragraph 5 of her affidavit was a course that was no longer available to the Department in answer to the summons filed on 21 January 2011. 59In the proceedings before this Tribunal on 1 June 2011, counsel for both the applicant and the respondent made submissions with respect to the appropriateness of the Tribunal having before it the relevant JIRT documents, which presumably formed the basis of the JIRT opinion that the Risk of Harm Report has been "substantiated" and the basis upon which the JIRT held concerns that other children may be at risk of significant harm whilst in the care of the applicant. 60Mr Young, Counsel for the respondent submitted that the proceedings before the Tribunal with respect to the review are not properly brought because the applicant is effectively seeking to challenge the findings of the JIRT. He correctly put that the registration of B as a person causing harm, is a matter that has nothing to do with the Fairfield City Council. 61Mr Young further submitted that, as the onus was on the applicant with respect to these matters, his client was not required to subpoena information from the JIRT or from anyone else. 62Mr Lee, Counsel for the applicant submitted that the Tribunal should properly have had before it the material upon which the JIRT based its decision. Mr Lee submitted that, despite subpoenaing the Human Services Department of Family and Community Services, the material from the JIRT would not be produced. 63Leave was granted for Mr Lee to make inquiries of the Department of Human Services as to what other documents were available and should be produced. The matter was stood over part heard for the purposes of Mr Lee making those inquiries and if necessary, issuing a further summons with respect to those documents. When the matter resumed on 1 July 2011 at 2pm Mr Lee informed this tribunal that he was informed by the Department of Human Services that no further material would be provided. 64As a result, no material was produced in answer to the subpoena relating to the JIRT investigation. Taking into account the currently applicable legislation with regard to protected material, the summons issued by the applicant, and the further enquiries made by the applicant, this tribunal can only infer that no material has been produced with respect to the JIRT investigation because no material with respect to that investigation is held by the Department of Human Services. That is the effect of Ms Pin's sworn evidence and Ms Pin in her affidavit of 11 February 2011 satisfies any question about the issue. Findings and Conclusions 65The Children and Young Persons (Care and Protection) Act ("CYPCP Act") and the 2004 Regulations govern the licensing of family day care services in New South Wales. The applicant was initially registered as a childcare provider with the respondent pursuant to Clause 30 of the Family and Day Care and Home Based Childcare Services Regulation 1996 . 66Pursuant to the savings and transitional provisions of the 2004 Regulations , from 30 September 2004, the council is taken to be the holder of a license under the CYPCP Act and the applicant is taken to be a family day care carer under council's transferred license. (Schedule 2, Clause 2(1) and Clause 2(10)). 67As identified earlier in these reasons, in conducting the review, this tribunal 'stands in the shoes' of the administrator, the respondent, and required to make the 'correct and preferable decision' having regard to the material then before it (section 63 of the Tribunal Act ). This includes not only the material available to the respondent at the time the original decision was made but any material that postdates that decision. 68In making its decision, the Tribunal is instructed to observe the objects and principles enunciated in s 9 and s10 of the CYPCP Act , which include that the safety, welfare and well-being of the child or young person must be the paramount consideration. 69Section 201 of the CYPCP Act sets out the objects of that part of the legislation, which deals with children's services. Those objects are: (a) to ensure the safety, welfare and well-being of children in children's services, and ( b) to promote certain standards for those services, and (c) to ensure, as far as possible, that all persons working in children's services are suitable for such work. 70Section 202 provides that the provision of children's services should be based on the following principles: (a) the paramount consideration in the provision of children's services is the best interests of children, (b) children should receive services that meet their individual needs (including the needs of children with a disability) and enhance their physical, emotional, cognitive, social and cultural development, (c) parents have both a right and a responsibility to be involved in the making of decisions by a children's service in so far as those decisions affect their children. 71As identified earlier in these reasons, the respondent has broad powers pursuant to clause 101(3) of the 2004 Regulations with the ability to remove the name of a family day care carer from the register at any time and for any reason . Neither the CYPCP Act nor the 2004 Regulations provide expressed guidance on the factors to be taken into account in the exercise of that power of removal. In determining the appropriateness of the discretion for removal, regard must be had to the totality of the legislation and the aim and purpose of the legislation. 72In determining the matters to be taken into account in the exercise of the discretion for removal, it is instructive to examine the factors to which a licensee must have regard when deciding to enter the name of a person on the register. Clause 100 of the 2004 Regulations identifies a number of those matters (at subclauses (2)(a-h) which include that the carer has an understanding of a young person's needs and development including nutrition, health, hygiene and safety; is responsive; is able to communicate effectively; and is aware of and sensitive to the needs of young children and their families. 73As identified correctly by Mr Young, the onus of proof in these proceedings lies on the applicant. The applicant needs to satisfy this tribunal on the balance of probabilities that, in order to grant her application for a review of the reviewable decision, the safety and welfare and the well being of children by the applicant's continued provision of a children's service would be met and is in the best interests of the children. 74The principal aspect of the assessment of that task in the context of these proceedings is the assessment of risk of harm to children who would be cared for by the applicant in light of the allegations that comprise the critical incident. 75In M v M (1988) 166 CLR 69, a well-known decision of the High Court in the Family Law jurisdiction, the Court considered the question of how courts should treat the competing interests of children who are alleged to be at risk of abuse from their parents and those accused of perpetrating such abuse. It said (at 75-76): "In proceedings under Part VII of the [Family Law Act] in relation to a child, the court is enjoined to 'regard the welfare of the child as the paramount consideration' (s 60D). ... The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court's findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue. ...[T]he resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were not more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance probabilities. In considering the allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof ...". 76The Court then referred to the well-known dicta of Di xon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362, quoted above, before continuing: In that case Dixon J said: Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.' 77The Court continued: [These] remarks have direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child. No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the alle gation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. ... In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of the risk. 78The Court discussed various ways in which the courts have attempted to describe the magnitude of risk. It concluded: To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse. 79Where allegations of a serious nature are made against a person they must be proven to the Briginshaw standard. If there is evidence that comfortably satisfies the decision maker that there is an " unacceptable risk " of harm to a child placed in the care of a person (parent or otherwise) this would be a sufficient basis upon which the respondent or a party in its position might reasonably have revoked the registration of a carer in the position of the applicant. Here an " unacceptable risk " would need to be real or material, not merely speculative or remote. 80Mere allegations do not amount to sufficient evidence of an "unacceptable risk". As the High Court observed in M, such allegations are easily made but difficult to refute. The potential for injustice to an accused or suspect is high, particularly given the stigma that attaches to those who are known or thought to have harmed children and particularly given the possible consequence that a person's financial and material circumstances will be affected. 81Whilst the protective legislation governing this area requires that the welfare of children be given paramount consideration, it does not disregard all other considerations. The paramountcy of the interests of children will rarely if ever justify a complete disregard of the interests of persons accused or suspected of having maltreated them where those accusations or suspicions have not been proven or at least subjected to stringent testing. 82Having regard to the limited factual material that was before the administrator in relation to the matters raised in this application, and the lack of further material provided to this Tribunal for the purpose of its review function, there is simply no basis upon which the Tribunal could - or should - make any assessment of the primary administrator's decision which would responsibly give effect to the aims and purposes of the protective legislation. There is no material before the Tribunal that provides any information as to how the allegations that gave rise to the critical incident were tested and, since no information or material has been provided to the Tribunal in order to assess the means, scope and specific outcome of any JIRT investigation, it is unclear as to what weight, if any, can be applied to the letter from the Bankstown JIRT to Fairfield City Council dated 21 July 2010 regarding the risk of harm to children in the applicant's care. 83As already stated in these reasons, the applicant was a carer who had been placed on the register of the respondent. At the time she was removed from the register, she had been providing care to children in her home on a continuous basis since 1992, working full time for a majority of the time. There was no evidence of any previous complaints against her. There was no evidence that she was operating as a day care provider other than in accordance with the Provider Agreement and with the 2004 Regulations. The applicant seeks to continue to provide care for children in her home. At the time of hearing, she had recently moved to the Bankstown Local Government Area to a house with a large purpose-built area in a downstairs portion of the residence. She stated that she was completing a diploma for childcare. 84A child in her care, F, is reported to have told his mother certain things. with regard to the child B, the 12 year-old son of the applicant. The mother reports that the child repeated those revelations to F's father BE. The applicant states that BE contacted her and told her what F had said to him with respect to her child B. 85The mother of the child informed the officers of the respondent of what F told her. On the basis of that information, the respondent suspended the applicant's authorisation to be a carer on 25 June 2010. A report of the incident was the subject of a report to the DoCS helpline. The JIRT investigated the report. By letter dated 21 July 2010, the JIRT informed the respondent that the risk of harm had been substantiated and that JIRT were concerned that other children may be at risk of significant harm in the care of the applicant and recommended that the applicant be deregistered 86As a result of advice from the JIRT, the respondent removed the applicant's name from the register. 87In its submissions, the respondent contended that " The JIRT Decision about the sexual abuse of a child by [B]...and the expressly stated JIRT Recommendation that the respondent deregister the applicant are compelling reasons that justify the respondent deregistering the applicant as a family day carer. " Further, the respondent contends that no evidence has been offered by the applicant that "in any way detracts from the JIRT Decision" and that to take any alternate action would be to 'go behind' the decision of the JIRT. 88We do not agree with that contention. The role of the tribunal is not to rubber stamp a decision of the JIRT, but to 'stand in the shoes' of the primary administrator, the assessment as to whether or not the JIRT letter of 21 July 2010 constituted a "compelling reason" to deregister the applicant must be decided after having considered all relevant material and any applicable law. The JIRT letter, standing alone and taken at face value, cannot possibly support a view by this Tribunal that it alone was and is a sufficiently compelling reason to deregister the applicant. That is but one matter that is to be taken into account. In the circumstances of this case, this tribunal is not in a position to make a positive finding as to whether or not a risk of harm existed such as to warrant the deregistering of the applicant. If the Court determines that it cannot or should not make a positive finding that there has been abuse, the Court must determine whether in all the circumstances there is an unacceptable risk of it. 89Consistent with the decision in M, resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. 90Although not decisive, an important consideration will be the absence of any previous reports as to risk of harm. In the case before this tribunal, the applicant has shown that she has been a responsible family day carer for the entirety of her time in that role, having had no previous substantiated reports made about her that were in any way adverse to her role as a carer. 91Having been deprived of any useful material as to the method and scope of the JIRT's investigation of the allegations made with regard to B, this tribunal is left in the unfortunate situation of being unable to make any assessment as to the truthfulness and reliability of the accounts of the children. Further, and perhaps more significantly, the tribunal has found that the evidence with regard to the various accounts of the critical incident given by the child F's parents were inconsistent. 92In consideration of the above matters and the relevant factual material before us, we consider that the correct and preferable decision is that the decision to remove the applicant from the register should be set aside. The relevant factual material before us does not comfortably satisfy us that children would be at risk of harm should the applicant continue in her role as a registered carer. ********** 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: 28 November 2011