AOP v Ngunya Jarjum Child and Family Network Inc. [2013] NSWADT 263

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: AOP v Ngunya Jarjum Child and Family Network Inc. [2013] NSWADT 263 Hearing dates: 22 April 2013 Decision date: 21 November 2013 Jurisdiction: Community Services Division Before: L Goodchild , Judicial Member J Le Breton, Non-Judicial Member J Green, Non-Judicial Member Decision: That the decision made by NGUNYA JARJUM ABORIGINAL CHILD AND FAMILY NETWORK INC to remove the children from the care of the foster carers 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) Regulation 2003 Children and Young Persons (Care and Protection) Regulation 2012 Administrative Decision Tribunal Act 1997 Cases Cited: YG & GG v Minister for Community Services [2002] NSWCA 246 Category: Principal judgment Parties: AOP (Applicant) Ngunya Jarjum Child and Family Network Inc. (Respondent) Representation: Legal Aid of NSW (Applicant) Maxwell & Co Solicitors (Respondent) Francesca Seychell (Guardian ad-Litem) File Number(s): 134002 Publication restriction: s.126 of the Administrative Decisions Tribunal Act applies

REASONS FOR DECISION

INTRODUCTION 1In these reasons for decision, the applicant is referred to by the pseudonym AOP (see s.126 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act")). The children the subject of these proceedings have not been identified and will be referred to as Child A and Child B. At the date of the hearing the children were 6 and 3 years of age. 2The applicant, an authorised carer, under the Children and Young Persons (Care and Protection) Act 1998 (CYPCPA), seeks a review of the decision by the Ngunya Jarjum Aboriginal Child and Family Network Inc. to remove the children from her care. 3At the time of the removal, A and B had been in the care of the applicant for a period of approximately two years. 4The applicant's mother had in the past been the foster carer for A and B's two elder brothers C and D. 5The evidence available discloses that in November 2012, C, (the brother of A and B, aged 11 years) told his foster carer that the applicant's two male children had sexually abused him. C had previously been placed in the foster care of the applicant's mother. At the time that he made this disclosure, he was no longer in the care of the applicant's mother but had been placed elsewhere. C stated to his current foster carer that when he had been in the care of his previous foster carer his brother D had sexually assaulted him, and that the applicant's two boys had sexually assaulted him and his brother. He claimed to have been 'raped' at the applicant's property. He made an allegation of another occasion when he went 'into the bush' and the two children, A and B, witnessed sexual behaviour by his brother and the applicant's two boys. 6These are, on their face, very serious allegations. 7Later in November 2012, C was interviewed by JIRT in respect of the allegations. He repeated the allegations in respect of his brother. He did not repeat allegations in respect of the applicant's two boys. 8In December 2012, caseworkers of the respondent interviewed child A. A decision was made by the respondent on 13 December 2012 to remove the children A and B from the care of the applicant. The applicant attended a meeting with the respondent on 14 December 2012. At that meeting the applicant was advised that the children would be removed and the children were removed that day. The applicant was provided with correspondence outlining the reasons why the children were removed. She was later provided with correspondence giving additional detail regarding the reasons as to why the children were removed from her care. 9In addition to the concern as to the risk of the children remaining in the care of the applicant in light of the allegations made by C about the applicant's two boys, the respondent identified the following further matters as the basis for the removal of A and B: (a)Possible breaches of undertakings signed on 8th November 2012 (b)Lack of appropriate supervision for the children; (c)Inadequate and/or inappropriate sleeping arrangements for the children. 10The young person making the sexual abuse allegations, C, is a young person who has been identified by the JIRT team as having a long history of developmental trauma. During JIRT interviewing with respect to the allegations it was reported that C became distressed and began to cry and the interviewing was suspended. He did not make any disclosure consistent with the allegations he made to his carer concerning sexual abuse by the applicant's two boys. Nor did he repeat the allegation of sexual behaviour in the presence of the children the subject of these proceedings. JIRT were unable to proceed with a criminal investigation of the allegations made by C due to the lack of detail of the disclosures. FACS however substantiated that C had been the victim of sexual abuse by his older brother. 11In respect of the allegations made by C against the foster carer's children, in January 2013 JIRT, FACS, and Health jointly decided that there would be no further investigative interviews done with Child C until such time as he has engaged with a sexual assault counsellor. They determined that he would benefit from engaging in a therapeutic relationship with a counsellor. 12As a result, at the time of hearing, no further interviewing of C had been undertaken. 13The applicant denies all allegations and wishes to have the children, A and B returned to her care.