Administrative Decisions Tribunal New South Wales Medium Neutral Citation: AIR v Department of Family Community Services [2013] NSWADT 141 Hearing dates: 3 September 2012 and 10 October 2012 Decision date: 17 June 2013 Jurisdiction: Community Services Division Before: L Goodchild, Judicial Member J Green, Non-Judicial Member M Bolt, Non-Judicial Member Decision: 1. That the decision made by the Respondent, Department of Family and Community Services, to permanently remove the children from the care of the Applicant is affirmed. 2. That the decision made by the Department of Family and Community Services to cancel the authorisation of AIR as a carer is affirmed. Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Children and Young Persons (Care and Protection) Amendment (Out of Home Care) Regulations 2003 Children and Young Persons (Care and Protection) Regulation 2012 Administrative Decision Tribunal Act, 1997 Cases Cited: YG and GG v Minister for Community Services [2002] NSWCA 246 Category: Principal judgment Parties: AIR (Applicant) Department of Family Community Services (Respondent) Representation: Counsel S Goodwin (Applicant) Galland Elder Lulham (Applicant) Care Legal (Respondent) File Number(s): 124006, 124010 Publication restriction: S126 of the Administrative Decisions Tribunal Act reasons for decision INTRODUCTION 1The Applicant in these proceedings is referred to by the pseudonym AIR (see Section 126 of the Administrative Decisions Tribunal Act, 1997 (ADT Act)). 2The children the subject of these proceedings have not been identified. The two boys aged 12 and 8 at the date of the hearing are respectively referred to as Child A and Child B. 3The Applicant was an authorised carer under the Children and Young Persons (Care and Protection) Act (1998) ("the Care Act"). The Respondent, the Department of Family Community Services (CS) is the New South Wales State Government body that coordinates and manages the arrangements for children the subject of orders made in the Children's Court with respect to their care and protection. 4The two boys had been placed with the Applicant since they were infants. They are indigenous boys. They are both subject to Court Orders for parental responsibility to the Minister for Family and Community Services until 16 years of age and 18 years of age respectively. 5The Respondent removed Child A from the care of the Applicant on 10 November 2011 and Child B from the care of the Applicant on 22 November 2011. 6The Applicant was de-authorised as a carer on 21 February 2012. 7The Applicant seeks a review the decision to remove the boys and the decision to de-authorise her as a carer. 8The removal of the children occurred following allegations that the Applicant had physically assaulted the children. The boys have been placed in separate homes since their removal. 9The Applicant sought an internal review of the decision of the Department of Family Community Services. Upon internal review by the CS, the decisions made by the CS were affirmed. 10The hearing of the proceedings started on 3 September 2012. The proceedings were then adjourned to allow the finalisation of the Reportable Conduct Unit Investigation. At the time the proceedings commenced again on 10 October 2012, the Reportable Conduct Unit Investigation had not completed. TRIBUNAL'S JURISDICTION AND POWERS 11It is not in issue that the decision to remove the children from the daily care and control of the Applicant is reviewable by the Tribunal. (Section 245(1)(c) of the Children and Young Persons (Care and Protection) Act (1998) read in conjunction with s.38 of the Administrative Decisions Tribunal Act 1997 ("the Tribunal Act") and s. 28 of the Community Services Complaints Reviews and Monitoring Act.) 12In conducting this review we stand in the shoes of the Administrator and make the correct and preferable decision having regard to all relevant material. We may have regard to all material that was relevant at the time of the decision as well as any further material that is relevant as at the time of the hearing. (YG & GG v Minister for Community Services [2002] NSWCA 246 at [25]). 13On review, we may decide to affirm the decision, to vary the decision, to set aside the decision and make a decision in substitution for it or to set it aside and remit it back to the Administrator (s.63 (3)). 14The interests of young people are paramount. The principles to be applied in the administration of the Act are set out in s. 9. Among other requirements s. (9)(a) of the Act require that the safety, welfare and wellbeing of the child or young person must be the paramount consideration. Where young people are able to form their own views on matters concerning their safety, welfare and well-being we are required to give due weight to their views in accordance with their developmental capacity and the circumstances (s. 9(b)). BACKGROUND 15Child A was placed into the care of the Applicant on 25 January 2000. He was 3 months old. Child B was placed into the care of the Applicant on 13 June 2003. He was 6 months old. Both of the boys referred to the Applicant as "Mum" and referred to the Applicant's biological daughters as their sisters. The placement was considered to be a long-term placement. At the time the children were removed from the care of the Applicant, they had been residing with the Applicant on an ongoing basis for almost all of their young lives. Both were identified as having significant medical needs. Child A had a number of health issues including Perthes disease and required surgery and treatment for this condition. During 2010 and 2011, particularly prior to when he was removed from the care of the Applicant; he was displaying what was referred to as unresolved anger issues. Child B was diagnosed with shaken baby syndrome, had learning and speech difficulties, was cognitively impaired, had vision impairment, severe speech delay and ADHD. 16Both boys have significant needs that required specific medical attention and regular check-ups. 17In June 2010 the CS alleged that the children were suffering medical neglect. The CS were concerned that the Applicant was not ensuring that Child B was attending his ophthalmologist appointments at Westmead, his speech pathologist appointments, his occupational therapy appointments and his Vision Australia appointments. Child B was assessed by a speech pathologist at primary school in 2010. The results indicated he had a severe language disorder for receptive language, that he had speech delay and would require speech therapy. Further, the CS were concerned about the children's unexplained absences from school and Child A's worrying outbursts of anger. 18The Applicant denied the allegations of medical neglect and considered that she had presented the boys to all recommended medical and allied health appointments, or if she had missed appointments, that could be explained. The allegations were referred to the Allegations Against Employees unit (AAE) within the CS. In September 2010, after investigation, the AAE did not sustain the allegations. It was recommended that there be case worker support and close monitoring as medical appointments had been missed and some services had not been followed up. As a part of the investigation, a report was prepared in September 2010 by Dr Judith Bragg from the Child at Risk Health Unit (CARHU). The purpose of this assessment was to examine the medical needs of the children, to consider whether there had been neglect and to consider their current needs and make recommendations. The opinion and recommendations from the CARHU report identified the Applicant as presenting a coherent picture of each of the boys, which was consistent with their presentation. Dr Bragg observed the interaction between the boys and the carers in 2010 and considered it appropriate for their developmental ages. Dr Bragg observed that the Applicant seemed to be supportive of the children during the examination and the overall impression given to Dr Bragg in 2010 was that the interactions between the Applicant and the children were that the children relaxed in her presence. Dr Bragg considered the disruption of the placement of the children would result in grief and loss for both children and that there would be significant subsequent placement breakdown as a result of the children's grief because of their high needs. Dr Bragg considered that it was preferable to put in place strategies that would support the Applicant. 19In October 2010, the Applicant attended with Child B to the various medical appointments at Westmead Children's Hospital. Child B's behaviour started to change during this time. The school noted these changes. By the end of 2010, Child B had been removed from the school due to behavioural changes. Concerns were expressed that the Applicant had not notified the behavioural changes to the CS. 20In January 2011 a case plan meeting was held involving the Applicant, CS and various services involved with the care of Child B. 21Arrangements were made for Child A to see a psychologist. Matt Thomas, a psychologist with the Greater Southern Area Health Service, saw Child A for a period of time to assist him in soothing himself and handling his volatile behaviour. Matt Thomas stopped seeing Child A in February 2011. In cross-examination the Applicant stated that the counsellor "signed -off...was happy how things were going". The evidence relied upon by the Respondent shows correspondence from Matt Thomas to the Applicant in July 2011 inquiring if things were going well with Child A and indicating that he had not heard from her since February 2011. 22In August 2011, CS contacted the Cerebral Palsy Alliance who advised that there had been no response from the Applicant despite phone calls and letters and that as a result, Child B had been removed from a waiting list. 23The CS contacted the Southern Area Brain Injury Unit (SABIU) in October 2011. The worker from the SAIBU is reported to have expressed concern that the child had missed the opportunity to obtain OT services through the Cerebral Palsy Alliance. The worker is reported to have commented that the child is making progress but is still far behind. She is reported to have stated "this child has a disability but a significant proportion is environmental". 24The notes from a further phone call to the SAIBU on 3 November 2011 record child B to be making significant improvement since the change in school environment. The SAIBU express a desire for the Applicant to agree to an overnight stay for the boy to have a full and comprehensive assessment. The Applicant is reported to have refused or has left the hospital after agreeing to stay. The SAIBU is reported to have stated "it is very sad because Child B could possibly have learnt brail, be able to be more independent, would he have little friends, be able to do some basic chores at home and use a telephone like his peers but because he has been held back so much he has not learnt the skills to be able to do these things". The Applicant denied knowing of the request for over night stay. 25The file note records from the CS report a phone call to the OT in October 2011 where, despite numerous attempts to contact the Applicant regarding the further OT intervention for child B, he had not returned since the review in February 2011. An appointment had been made for early November 2011. SEPTEMBER 2011 26Between January 2000 and November 2011, 2 reports were made to the CS regarding the Applicants care of Child A. 27It was reported on 6 September 2011 that Child A had missed 22 days out of 35 in the school term and that Child A had not been at school for 11 consecutive days. The Applicant indicated that she was unable to force Child A to attend school. 28The teacher at the school where Child A attended contacted the Department in August 2011 concerned that Child A had only attended 9 days of school that term with no explanation being given for the absences. It seemed that Child A had fairly regular absences averaging 15 to 20 days off a term but this term had been worse. The teacher's concerns were that Child A was not attending school, that he has no access to a school counsellor through the school and that there has been a referral to CAMHS but she has information that suggests that Child A has not followed this up. The teacher was concerned that Child A's absences were causing him to regress. She reported that Child A reports to her that he stays up late watching movies. She reported that the school has little contact with the Applicant carer who does not respond to written letters or phone messages left for her. The teacher stated that they were sending letters home but getting no response. She stated that there had been a massive communication breakdown for unknown reasons. She is reported to have stated concerns for Child A's weight and nutrition. Child A continues to not participate in any sport at school and on sport days. The carer is reported to collect Child A from school early to prevent him from engaging in any sport. Child A does not participate in any school activities such as excursions as the carer will not support him to do this. She stated that Child A was regularly soiling himself at the beginning of the year (2011) but this had decreased although he was now rarely at school so a full assessment cannot be made. It was reported that he was very behind academically. 29On 7 September 2011, Child A was transported to Goulburn base hospital after an incident in the home. The evidence disclosed that Child A was smashing things in the house, that he had locked himself in his room, that he was screaming and uncontrollable. The Applicant contacted the police. The COPS event produced by the Respondent disclosed that in the afternoon of Wednesday 7 September 2011 Child A had smashed a picture frame in his bedroom, had made threats against the Applicant that he was going to burn her and that he was going to kill himself. Child A was observed by the police to be armed with a golf stick holding it above his shoulder and threatening the police. He was restrained by the police in the living room. He was conveyed by the police to the Goulburn Base Hospital for a mental health assessment. At the hospital officers of the Respondent attended and the Child A was then sent home with the Applicant. 30The Applicant stated that on the occasion when the police attended the home in September 2011 and restrained Child A, they told her "off the record," that she could restrain the boy as they had done or sit on him until he calms down. THE CRITICAL INCIDENT 31In 9 November 2011 the Goulburn CS received a report. That report stated that Child A had said "Mum (meaning the Applicant) and I had a fight. I got bruises all over me and a black eye and mum didn't want me to go to school." This was a helpline report where the reporter is reported to have said 'Child A then pointed to his (L) eye and in doing so the caller noted what appeared to be tiny remnants of bruising (caller stated that the injury is not immediately visible and Child A had to point it out to her)". 32As a result of the report, Child A was interviewed by CS caseworkers on 10 November 2011 at the school that he attended. Ms Shipp, the caseworker who interviewed the child was available for cross-examination. The Respondent provided a record of the interview, which was said to be a narrative of a true and accurate account based on handwritten notes and memory. It is noted that at the top of the typed notes the following is recorded: "Throughout the interview, Child A at times shut down walked out contradicted himself and appeared confused and then at the end of the interview stated that he could not remember what happened last week. However Child A did disclose being restrained by his carer and having a physical fight being grabbed and shoved and punched (later retracted) with his carer". 33The following is an excerpt of this interview with the child A: "Q. Tell us from start to finish about the physical fight you had with mum last Wednesday night, A. Can't remember what it started over, but she restrained me. She was sitting on my legs because I was angry with Nicholas. Tried to get after him. Angry kicking at mum. Mum was holding me down. Couldn't get up. Pulled legs out and started kicking. Mum sat on my legs and held my arms so I couldn't punch her. Don't blame her, I was pretty angry. Waited fully until I calmed down, fell asleep. Woke up, then asleep. I punched mum went to grab my arm. Q. How mum grabbed you? A. From behind grabbed me by the shoulders. She grabbed me I tried to get (Child B) I was waving my arms around and then she pulled me. I wanted to get (Child B) she pulled me up there......she was in front and punched like that". Child A pointed to his chest. Child A said "pushed down like that" - where he landed on the lounge. "She pulled my legs; I kicked at her she sat on my legs. I went to punch her and she grabbed at my arms she missed and got me in the head by accident. Q. How did you know it was by accident? A. She went to grab my arm. She held my arms until I calmed down." Child A motions his left hand towards the left side of his face. He puts five fingertips on the side of his face near the side of his cheek. Q. How did she know you'd calmed down? A. I don't know she's had me for 12 years mum just sat on me.....so I'd not get up and chase Child B". Q. Has your mum ever sat on you before? A. No, only when she tickles me to play. Q. Have you ever had a physical fight before?" A. No. Q. Did anyone get hurt we've received a report that you had a black eye? A. Mum got hurt oh I don't think she did. I get mad over anything. It was a red mark, just on, just a hand. Just like a claw, finger marks only. Q. We received a report that you had marks to your left eye? A. Grabbed it yeah." 34Child A was interviewed again on 14 November 2011. The following is an excerpt of this interview: A. "On the lounge and I got up and mum walked in and pushed me away and said just let me watch this show and went like that". (Child A shows mum putting her hands up to block him from being able to get to change the TV). I tried to get up and she pushed me and sat on my legs on the dog lounge. My legs were up here (Child A lays down on the couch and shows how he was positioned with his legs outstretched on the couch). She goes to grab my wrists (Child A holds both and his wrists together). Q. Was she still sitting on you? A. Yes I tried to push her so I could get my legs out she was going like this. (Child A re-enacted this by poking his index finger repeatedly to his chest) She was trying to distract me. Then I went like this. (Child A rolled to his side and got my legs out and got up, I ran to Nick but mum chased me and stopped me then she went like that to get me on the other lounge". (Child A shows with his hands a pushing type motion with his hands in front of him). Q. And then what happened? A. Can't remember. I grabbed the cushion off the back of the lounge and started whacking her and then I threw the cushion towards Nick. Then mum held my hands and started pushing them down. (Becomes thoughtful)..... She was holding my arms down and was moving the cushion with the legs trying to get it out of the way off the floor I think I said something and she got a bit angry and she took the little pillows." (Child A reaches for a cushion) And holds it over my face like this. She is still holding me down". (Child A held the cushion over his face). Q. Can you tell me more about the cushion she held over your face? A. It was the little one on the lounge it was under my head and she grabbed it out and put it over my face. She was holding my hand. (Child A was pointing to his wrist while saying this And she out them like this and pushed them down. (Child A re-enacted laying on the lounge with a pillow over his head and both arms up and his wrist together and pushed into the pillow covering his face) I think I made her angry and hit me in the face. I think I said something about queuing Nick after she hit me". 35In cross-examination, Ms Shipp stated that the child was removed from the home of the Applicant that day because of the physical altercation, the fact that the chid had been restrained and there is a 'no restraint' policy, and in the discussion with the Applicant, the event did not occur. She stated that she observed old bruising to Child A's left eye. The CS determined that the child was not safe if he remained in the care of the Applicant. 36The Respondents relied on a statement from KH the Principal of the primary school where Child A attended at the time. This statement was provided to the police. The principal stated that on 7 November 2011 at about 11.30am she was sitting with Child A at morning tea. She was aware that he'd been absent from school on Thursday and Friday the week before. She asked Child A why he was absent from school last Thursday and Friday and Child A replied; "I had a fight with mum on Thursday before school". She states; "I asked why you didn't come to school? Child A replied; "She didn't want me to come to school because I had bruises all over me and a black eye." I noticed that he had slight bruising under his left eye. Child A appeared to be quieter and more withdrawn than usual. I have interactions with Child A on a daily basis during school days as there are currently only 26 students at the school". KH stated she then contacted the Respondent. 37On 22 November 2011 officers of the Department of Family and Community Services interviewed Child B. Child B stated in this record of interview that Child A swears a lot and tries to hurt him and wreck mum's house. He says that Child A had jumped on him and attacked him in the kitchen. He stated that mum tried to stop him from hurting me. The interview proceeds as follows: "Q. What did mum do to stop? A. Mum hold him on the lounge in the night. Stop him from hurting me because mum changed the channel. Q. What channel? A. On 7. Q. What did she change the channel on? A. Child A tried to change the channel and I slapped him on the head. Child A tried to change the channel. Q. What were Child A and mum doing? A. Mum was holding Child A on the lounge. She then had a fight. Q. What do you think the fight was about? A. They were trying to change the channel. Q. They had a fight? What was mum doing with Child A? A. Trying to protect me. Q. How was she protecting you? A. Because Child A trying to hurt me. Q. What was she doing to protect you? A. Protect me from getting hurt. She jumped on him. She hold him down and he yells 'get off me'. She stayed on him to control his temper." 38Child B was removed from the care of the Applicant on 22 November 2011. The Applicant was formally interviewed on 15th November 2011. The police obtained a statement from Child A on 16th November 2011. 39The Applicant was charged with an assault arising from the allegations. On 5 April 2012 that charge and the apprehended violence order were dismissed by the Goulburn Local Court on the basis that the evidence could not ground a conviction. 40The Respondent relied upon evidence of an email from Child A's current carer identifying a number of things that Child A told her that she found to be "disturbing". Those matters included that Child A had told her that he was scalded with hot water as a child, that he had stated that he had used power tools unsupervised on his own, that he is reported to have said that he only eats 2 minute noodles or pasta or lasagne or KFC and that the current carers were trying to get him to eat a more healthy diet and were meeting with a lot of resistance. 41Child A is reported to have said that he also had locks on his bedroom door, one lock on the outside and one on the inside. Child A said that he would be left home for long periods of time to look after his brother whilst his mother was out doing dog rescue. The email indicates that when Child A first came to them he would stab his food with a fork or a knife and eat it off the utensil. He said that no one had taught him how to use a knife and fork. 42The Applicant responded to these allegations. She confirmed that when Child A was younger he was scalded on one occasion with hot water and he received medical attention. She further confirmed that on occasion under supervision he used the lawnmower and the whippersnipper and a cordless drill. She confirmed that on occasion that he did eat noodles and lasagne but her experience was that he was fond of vegetables, that he was a big fruit eater and that he was fond of gardening and had grown vegetables at home. She confirmed that his bedroom door had a lock on the outside which was there when they moved into the home and she further stated that whilst there may have been occasions when Child A was left on his own when picking up Child B from school. 43Since Child A's removal from the Applicant, a report was provided from the Child Protection Counselling Service dated May 2012 with respect to therapeutic counselling to assist and support Child A to adjust to his new placement after he was removed from the carer. It was observed by the report writer, Ms Henderson, that Child A's current placement had been providing support, safety and stability. He continued to go to his previous school and has an almost unblemished attendance record. It stated that he was made captain of his class in Term 2 and is well liked in the whole community with his peers and he is reportedly making good progress. There seem to have been no reports of verbal or physical outbursts since removal from the care of the Applicant. The author of the report observed Child A's expression of loss in relation to being removed from the carer. She also observed these expressions have become less painful and anxiety provoking for him and appear to be less distressing. The report writer observed that Child A had expressed feelings of guilt and responsibility around the circumstances of his removal. The report writer considered that Child A had made positive progress, that he is engaging positively and with enjoyment in all aspects of his social and academic performance at school and also in the area of self reflection and behaviour modification. 44It was noted that Child A still had a connection to the Applicant although he had responded positively to the challenges of the 'enormous change' in his life. It is reported that in his present placement he can appear aloof and emotionally unresponsive. The Child Protection social worker observed that it was her observations that this behaviour stemmed from the independence as well as inappropriate interaction he experienced in the care of the Applicant. 45At the time that the child was removed from the Applicant the child was found to have a severe contagious staph infection on his scalp. He received medical attention for this and it resolved. At the hearing, the Applicant did not accept that the condition of the child's scalp was a staph infection. THE APPLICANT'S RESPONSE 46The Applicant relied upon affidavits from herself and also from her two daughters. She relied upon written submissions. The Applicant was cross-examined. TG, the Applicants daughter, was also cross-examined. 47The Applicant states that she has been a foster carer for 18 years and has had over 150 children in her care. She states that she lives in a four-bedroom home, which she has fully furnished with all usual amenities. She states that Child A and Child B have their own fully furnished rooms with toys, clothes and personal possessions, that there is a enclosed backyard. She states that it is normally only her and Child B and Child A residing in the house. She states that in April of 2010 she was assessed for a sole parental responsibility order for Child A. The Applicant relied upon that assessment. The recommendation was that the department pursue a sole parental responsibility order for the Applicant. The children were identified as being secure in their placement. It was noted that the Applicant was responsible for providing Child A with a stable and loving family environment and demonstrated a commitment to Child A in his care. At this stage Child A was continuing to exhibit behavioural problems at school and it was thought that the Applicant would benefit from support and understanding in managing Child A's anger and anxiety. In cross-examination the Applicant stated that the CS never offered her respite. She stated that it had been 'mentioned' over the years but that it was never officially offered. She stated that her daughters would take the boys a day 'here and there' and that provided her with respite. It is clear from the evidence from the Applicant herself that the behaviour of Child A had been escalating throughout 2011. In cross-examination she stated that "she had never really had any trouble with the boys or a brake from them until Child A's behaviour started to escalate". 48The Applicant does not deny restraining Child A and she says that she acted to protect Child B from injury from Child A. She denied the force and extent of the restraint as alleged by Child A. She says that at the time of the incident she was in the kitchen preparing tea and Child B was watching TV. Child A came out of the lounge room and wanted to watch a show. Child A turned the TV channel over and Child B screamed out words to the effect "Mum he's turned my show over". The Applicant came out and said words to the effect "Let Child B watch to the end of his show and then you can turn it over". The Applicant switched the channel back. Child A had the remote and he kept flicking the TV back to his show. She took the remote from him and he said words to the effect "I hate you Child B you always get what you want I'm going to kill you. You wait you're going to get it." The Applicant said she observed Child A move towards Child B and make threatening gestures and she stepped between them. She says she observed Child A trying to hit Child B and then he was pushing and shoving her and trying to get her out of the way so he could get to Child B. She agreed that she was pushing Child A back away from Child B but she says she was doing it to protect Child B from Child A. She says Child A was enraged. She says she pushed him onto the lounge and then she lay across his body. She says she did not hold his arms down, she did not poke him, tickle him, punch him or put a pillow on his head or hit him. She says that he kicked and thrashed about for what seemed to be 5 or 10 minutes, he then calmed down she said to him "Are you going to calm down?" He said "Yes". She observed him to be sulking and he sulked for about 20 minutes and didn't talk to her. She said after this evening everything went back to normal and he ended up sleeping that night on the lounge. She says that she didn't send him to school on Thursday 3rd November because he was unwell. He had flu like symptoms. She denied that she kept him home because he was bruised or had a black eye. She says that on the evening of Thursday 3rd November he stayed at her daughter's place. Her daughter visits every day and he requested to stay there. She says that he didn't attend school on Friday because he was still unwell and he stayed Friday night at his other daughter's house and he was then subsequently returned home on Saturday. She says she was going to keep him home on Monday as he was still unwell however he wanted to go to school. His class was away at camp and he was not to attend the camp and was allocated an infant's helper for the week. 49Under cross-examination the Applicant confirmed the evidence contained in her affidavits. She stated that she "pushed him in the chest". She stated that she "pushed Child A onto the lounge and restrained him" because he was trying to push her out of the way. She stated that she "pushed him backwards". She stated that she was concerned about the safety of Child B. She stated that she was "leaning over the top of him...kneeling on the ground". The Applicant stated that this was the first time things had got physical between them. She stated that from the beginning of 2011 Child A would become angry over little things. She stated "it had been building up. Anger levels were getting worse". She denied putting a pillow over him. She stated that in previous years he had gone to his room and had time out. The Applicant said she was "frustrated....but not out of control". In answer to a question concerning the allegations by Child A that she had punched him she stated "in the pushing and shoving....I don't recall it happening". She agreed that her hand could've made contact with his face. She stated that she "would do the same thing again. I think I acted accordingly". 50The evidence discloses that Child A's behaviour had been escalating at least since the end of 2010. Notes from the respondent record a threat with weapons in October 2010. A report from the Goulburn Community Mental Health dated November 2010 reports aggressive behaviour, a threat of suicide, head banging and presenting with Oppositional Defiant Disorder. In cross-examination the Applicant considered that his behaviour was not something she could not handle. 51With respect to the allegations that Child A missed school in 2011, the Applicant agreed that had happened. The Applicant stated that Child A would simply refuse to go and she was unable to force him to go. She says she contacted CS about this and they spoke to Child A and herself. She says that she then spoke with Matt Thomas the psychologist and that over a gradual period of time he would be introduced back to school. 52The Applicant states that after the incident that occurred on 7 September 2011 resulting in Child A attending hospital for an assessment, she was expecting to obtain help and services from the CS. She says she never received any follow up from the caseworker to see how things were going. Ms Shipp stated in cross-examination that there had been several phone calls to the Applicant that 'went unanswered'. She stated had spoken to the Applicant as arrangements were being made for the case plan meeting. Ms Parsons, Manager Casework, expressed concern that a foster carer needs to be an advocate for a child at all levels. She was not satisfied that the Applicant acted as a strong advocate for the children in her care. 53The Applicant denied punching Child A to the chest or hitting him in the head. She does not deny restraining him but she says she was restraining him to protect Child B from harm. She disputes that there would have been bruising and she disputes the fact that any bruising would have been visible. She states that on 9th November the reporter indicated that the injury was not immediately visible and Child A had to point it out to her yet the next day when Katie Shipp interviewed him she says a black eye was noticeable. The Applicant states that Child A has scaly stuff on his head his whole life, which looks like psoriasis. 54The Applicant did not agree that she prevented Child A from playing sport. She deposed to an incident of misbehaviour at tennis where Child A was then not allowed to play tennis. The Applicant said that Child A participated in the walkathon and the expo jump at swimming. The Applicant says that he also attempted to play soccer but was unable to continue because of his hip. FINDINGS AND CONCLUSIONS 55The task for this Tribunal is to determine the correct and preferable decision. In conducting this review we may have regard to all material that was relevant at the time of the decision as well as any further material that was relevant at the time of the hearing. Under the Act, the safety and welfare and well being of the children or young people must be the paramount consideration. When children are placed in out-of-home care, the Act provides that the child or young person is entitled to a safe, nurturing, stable and secure environment. We are also required to give due weight to the views of the children in accordance with their developmental capacity and circumstances. 56It is trite to observe that cases such as these present very difficult evidentiary issues and Applicants have a heavy burden to discharge even on the balance of probabilities. This is because the principles of the Act require the decision makers to give paramount consideration to the safety, welfare and wellbeing of children in the care of foster-carers. The interests of children in cases such as these are to be placed above those of the foster carer. 57Both of the children, the subject of these proceedings have significant needs and require a high level of support and care. Concerns were raised with the Applicant as to her attention to the care of the children in 2010. 58The defiant behaviour of Child A was escalating in 2010. Whilst CS did not make a finding of medical neglect in 2010, it is apparent that regular attendance at appointments was a substantiated concern. The respondent provided evidence of the failure by the Applicant to attend to some of the medical appointments or appointments with services in 2011. Further, both children's attendance at school had been the subject of concern. In 2011 just prior to the children being removed from her care, Child A had many absences form school. The Applicant indicated she was not able to force him to go to school. 59With regard to what has been referred to as the critical incident, the Respondent submits that we should accept the version of the child over the version of the Applicant. There is no doubt that a very serious incident involving the Applicant and the 2 children occurred in November 2011. The incident involved one of the children apparently threatening the other, escalating physical behaviour requiring, according to the Applicant, her to push the child in the chest and push the child onto the lounge and to physically restrain the child. The Applicant stated she had to push the child onto the lounge, where she then restrained him either holding him down or laying across him for a period of time. Whether she restrained him for 5 minutes, 10-15 minutes or "about ½ hour" is of little moment in the circumstances. The Applicant did not recall the use of the cushion, she denied that the child hit or punched her. We are unable to determine if the child received an injury to his eye as a result of the events that had occurred. The child remained away from school for 2 days, and away from the carers home staying with the Applicants daughters, in circumstances where he was said by the Applicant to have the flu. The Applicants daughter stated in cross-examination he was not bedridden, he had a runny nose. He was not taken to the doctor. 60There were inconsistencies in the Applicants statements given on 10 November with that of her statement given on 15 November 2011. There were also inconsistencies with the children's statements. The statements given by the children do not allow us to determine with any real certainly exactly what occurred. We are unable to determine if the Applicant used excessive force in the circumstances. However, we are also unable to determine if the Applicant used reasonable force and reasonable restraint in the circumstances to prevent serious injury. 61At the time that the Applicant acted in the way that she did, there were no behaviour management requirements contained in a care plan applicable to the child. At the time the incident occurred, the Police were not called and significantly, the CS were not notified. On the Applicants own evidence, she pushed the child in the chest and she pushed the child onto the couch and she restrained the child on the couch for a period of time. This was a very serious incident of which there was no attempt by the Applicant to inform the CS. The Child A, after being away from school for a period of days, spoke of the incident to his Principal. The only time CS were notified was some 6 days later by a report from the school because Child A said to his teacher "Mum and I had a fight....". The CS submitted that the Applicant minimised the incident when discussing the incident in the interview with the caseworkers on 10 November 2011. That is an impression reasonably gained from not only by the interview but by the Applicants failure to notify the CS or to take any action what so ever post the incident. Despite the investigation of the incident and an opportunity to reflect on what had occurred, the Applicant considered that she had acted appropriately in the circumstances in restraining Child A. In the circumstances identified in this case, we are not satisfied that the Applicant has demonstrated insight into the needs of the children in her care nor the seriousness of the critical incident and her responsibilities as a foster carer. 62The Respondents call on us to find that the Applicant used physical discipline on Child B. The Child B made statements regarding smacking in an interview with the caseworkers. The Applicant denied that she has ever smacked Child B. There are no independent witnesses to the allegations. We make no finding that the Applicant smacked Child B. 63The Respondent submits that whilst the events of the critical incident warranted the removal of the children, in considering all of the evidence, the Tribunal should find that the Applicant was not adequately meeting the children's health needs and the children were not progressing in their development in the Applicants care. 64As noted earlier in these reasons, both these little boys had extensive health needs and required consistent medical intervention. There is reliable and coherent evidence of the Applicants' failure to attend medical and service appointments prior to the children's removal. A review by the CS of the Applicants care of the children occurred in 2010 and recommendations were made to assist the Applicant in meeting the children's health needs. However, the evidence discloses that throughout 2011 the Applicant had again failed to ensure that the children attended medical and related appointments. We find that the Applicant failed to consistently attend to the children's medical and related needs. 65The Respondent submits that the Applicant failed to meet the children's educational needs. The unchallenged evidence was that by September 2011, Child A had missed 22 out of 35 days of school. In the first half of 2011, Child B had 10 absent days and 16 partial absent days. There is no reasonable explanation provide by the Applicant for the failure of the children to attend school. The evidence suggests that the absence form school has had a negative impact on the children's development. There is no evidence of action taken by the Applicant to address the poor attendance of the children at school. We find that the Applicant failed to consistently attend to the children's educational needs. 66The Respondent submits that we should find that the Applicant has failed to meet the emotional and psychological needs of the children. The Respondent refers to the complaint by Child A that he did not receive equal treatment to Child B that he would; "be blamed for everything". We are unable to make a positive finding that the Applicant failed to meet the emotional and psychological needs of the children. 67It has been observed by others in decisions such as these, that when dealing with the circumstances of children in our community who are the most vulnerable - children who have been separated from their parents and are placed in out-of-home care and children who's care needs are as significant as these 2 boys - that we as a community have a heavy responsibility to ensure that these children have the best possible care in a safe and secure setting. The legislation dictates that the children's safety, welfare and wellbeing is paramount. The decision to permanently remove the boys from the care of the foster carer is a difficult one in circumstances where these boys had been in her care for a lengthy period of time. 68Physical punishment or physical restraint of a child in foster care represents a clear breach of the code of conduct. However, it does not necessarily mean that children in a long-standing placement would be automatically removed from that placement. All of the circumstances need to be assessed including the nature of the risk of harm and the magnitude of the risk of harm. 69We have had regard to the views of the children. The evidence shows that Child A stated in August 2012 that he wished to live with his current carers who were approved long-term carers. Those carers indicated they would like him to stay with them. At time of hearing, Child B had not expressed similar wishes but the CS submitted that he was content with his current carers. Prior to the hearing, Child B is reported to have said "yes" if he was asked if he wanted to go home to Mum. We have taken into account the views of the children in making our decision. 70In the circumstances of this case we determine that we cannot be comfortably satisfied that children would be safe if placed into the care of the Applicant. Foster carers have the care of the most vulnerable children in our society. Many of those children present with complex needs and challenging behaviours. There is no doubt that undertaking the task of being a foster parent to children with complex needs and challenging behaviours is, despite the financial assistance provided, often unrewarding and difficult and often undertaken in circumstances where assistance from agencies is scarce. However, foster carers are guided by a code of conduct and are required to be open and accountable advocates for the children in their care. They are required to persistently and consistently provide for the needs of the children in their care. They are required to provide to the children and safe and stable and nurturing environment. 71In the circumstances of this case, after considering all of the evidence and the submissions by the parties we consider that the decision to not return the children to the applicants care and the de-authorisation of the Applicant as a foster carer to be the correct and preferred decisions. ACCORDINGLY, WE MAKE THE FOLLOWING ORDERS:- a) That the decision made by the Respondent, Department of Family and Community Services, to permanently remove the children from the care of the Applicants is affirmed. b) That the decision made by the Department of Family and Community Services to cancel the authorisation of AIR as a carer is affirmed. ********** 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: 17 June 2013