Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CSY v Veritas House Inc. [2017] NSWCATAD 211 Hearing dates: 01 February 2017 and 04 April 2017 Date of orders: 29 June 2017 Decision date: 29 June 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: M Anderson, Senior Member R Royer, General Member Decision: (1) The decision to remove the children from the care of the applicant is affirmed. (2) The decision to cancel the authorisation of the applicant is affirmed. Catchwords: ADMINISTRATIVE LAW-review of decisions under section 245 Children and Young Persons (Care and Protection) Act 1998(NSW) and section 28 (1)(a) Community Services (Complaints, Reviews and monitoring) Act 1993 (NSW) – where removal of children from the care of the applicant due to breach of safety plan and code of conduct – where issue is the correct and preferable decision having regard to the material before the Tribunal – where decision to remove the children from the care of the applicant affirmed. Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Children and Young Persons (Care and Protection) Regulation 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) Evidence Act 1995 (NSW) Cases Cited: AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028 Bell-Collins Children v Secretary, Department of Family and Community Services (No. 2) [2016] NSWSC 853 Blinko and Blinko [2015] FamCAFC 146 Deiter & Deiter [2011] FamCAFC 82 Department of Family and Community Services (NSW) and the Bell-Collins Children [2014] NSWChC 5 DFaCS (NSW) and the Colt Children [2013] NSWChC 5 Director-General, Department of Community Services v D & Ors [2007] NSWSC 762 J v Lieschke [1987] HCA 4; (1987) 162 CLR 447 Johnson v Page [2007] Fam CA 1235; (2007) FLC 93-344 Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 M v M [1988] HCA 68; 166 CLR 69 MXS v Department of Family and Human Services (NSW) [2012] NSWDC 63 PR v Department of Community Services [2009] NSWADT 277 Re Cameron [2012] NSWSC 1453 Re Kerry (No 2) [2012] NSWCA 127 Roberts v Balancio (1987) 8 NSWLR 436 The Department of Community Services v "Rachel Grant", "Tracy Reid", "Sharon Reid and "Frank Reid" [2010] CLN 1 YG & GG v Minister for Community Services [2002] NSWCA 247 Category: Principal judgment Parties: CSY (Applicant) Veritas House Inc. (Respondent) Representation: Counsel: R Harper (Applicant) M Neville (Respondent) Solicitors: Cunninghams (Applicant) Campbell Paton & Taylor (Respondent) File Number(s): 2016/00378385 Publication restriction: Pursuant to section 65 of the Civil and Administrative Tribunal Act 2013 a person must not, except with the consent of the Tribunal, whether before or after the proceedings are disposed of, publish or broadcast the name of any person who appears as a witness before the Tribunal in any proceedings, or to whom any proceedings in the Tribunal relate, or who is mentioned or otherwise involved in any proceedings in the Tribunal.Note that a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. REASONS FOR DECISION Introduction 1. On 4 August 2016, Veritas House Inc made a decision to remove three children from the care of the applicant CSY as an authorised carer under the Children and Young Persons (Care and Protection) Act 1998 (NSW) ("the Care Act"). The three children are aged 10 years, 8 years and 6 years old. Each child had lived with the carer from about the age of 1 year old. 2. An internal review of the decision made was conducted and the applicant notified of the outcome on 3 September 2016. The review affirmed the original decision. The applicant filed on 4 October 2016 an application for administrative review. The purpose of the application is to seek review of the decision and have all of the children returned to the applicant's care. 3. This matter was heard on 1 February 2017 and 4 April 2017. Written submissions were submitted by the parties with the last submissions being received on 4 May 2017. 4. There were actually two decisions made. The first decision was to remove the children from the care of the applicant on 4 August 2016. The second decision was to suspend the authorisation of the applicant which occurred on 7 November 2016. The applicant asks to amend the application to include the second of those decisions. There is no objection to the amendment. The second decision was based upon the same material as the first decision. Without authorisation to care for the children the children cannot be returned to the care of the applicant. Therefore, the applicant seeks the return of the children to her care and the lifting of her suspension as an authorised carer. 5. The children are under the parental responsibility of the Minister for Community Services until the age of 18. 6. The respondent, Veritas House Inc, opposes the application. 7. The applicant and her husband were authorised as carers by the Department of Family and Community Services on 18 August 2007. In November 2011 the carers transferred from Family and Community Services and became carers for the respondent. 8. In March 2016 the respondent was informed that a risk of significant harm report been received in relation to each child because the applicant's husband had been the subject of an allegation of sexual harm made by the applicant's granddaughter, now aged 15. The applicant's husband left the family home and his ongoing contact with children was restricted. The children remained with the applicant. The husband attempted self-harm and was admitted involuntarily for psychiatric care. Upon his discharge he was charged with sexual assault on a child under 16 (two counts) and aggravated indecent assault on a child under 16 (two counts). 9. In May 2016 the applicant's husband was barred from working with children by the Children's Guardian and a few days later his authorisation in the carers' register had been cancelled. 10. The applicant's husband came into contact with the applicant and the children in the toy department of a local store in June 2016. 11. In July 2016 a risk assessment of the applicant as sole carer for the children was undertaken. The assessment recommended that the children move to alternative placements. That is what happened. 12. The criminal proceedings commenced against the applicant's husband were concluded in the District Court a few days prior to the recommencement of the hearing in the Tribunal on 4 April 2017 and he was acquitted on all charges. Legislative provisions 1. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act 2013 (NSW) or Civil and Administrative Rules 2014 (NSW) do not otherwise make provision. The rules of evidence do not bind the Tribunal (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal forms: section 38 Civil and Administrative Tribunal Act; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Where the Tribunal has a discretion to act on material which is rationally probative, subject to the rules of procedural fairness and other aspects of natural justice, the Tribunal must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Roberts v Balancio (1987) 8 NSWLR 436. 2. The "guiding principle" under the Civil and Administrative Tribunal Act and the procedural rules, in their application to proceedings in the Tribunal, "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings", subject to a principle of proportionality to the importance and complexity of those proceedings: subsections 36(1) and 36(4) Civil and Administrative Tribunal Act. 3. The Tribunal may hear an administrative review of decisions made by a "relevant decision-maker" if it is a decision referred to in section 245 of the Children and Young Persons (Care and Protection) Act for the purposes of section 28 (1) (a) of the Community Services (Complaints, Reviews and monitoring) Act 1993 (NSW). 4. Jurisdiction arises in the Tribunal as His Honour Justice Campbell observed in a matter before him which required consideration of the legislation which gave jurisdiction to the Administrative Decisions Tribunal, but now exercised by this Tribunal, in AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028 at [20]: "As I have said, in the exercise of the statutory powers arising from sole parental responsibility, the Director-General decided not to grant daily care and control to the second defendants. The key provision that confers the Tribunal's jurisdiction in the present matter is s245 of the Act. So far as relevant, it provides: (1) For the purposes of section 28 (1) (a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993, any of the following decisions made under or for the purposes of this Act or the regulations are reviewable by the Administrative Decisions Tribunal: ... (c) a decision of the relevant decision-maker to grant to, or to remove from, an authorised carer the responsibility for the daily care and control of the child or young person ... (1B) For the avoidance of doubt, subsection (1) (c) does not extend to any decision in relation to: (a) the preparation of a permanency plan, or (b) the enforcement of a permanency plan that has been embodied in, or approved by, an order or orders of the Children's Court. (2) In this section, relevant decision-maker, in relation to a decision, means the person or body authorised by or under this Act or the regulations to make the decision, not being the Children's Court." 1. In this matter it is accepted that Veritas House Inc is the relevant decision maker in relation to the decision to remove from the authorised carer the responsibility for daily care and control of the children. The decision to remove the children from the care of the applicants is one which is described by section 245 (1)(c) of the Children and Young Persons (Care and Protection) Act. The decision to cancel the authorisation of the applicant is within section 245(1)(a1) being: "a decision of the relevant decision-maker to cancel a person's authorisation as an authorised carer, other than a decision to cancel an authorisation granted on a provisional basis or a decision to cancel an authorisation on the occurrence of an event prescribed under section 137 (2) (e)…". 2. In AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028, the Court was asked to decide whether the jurisdiction was curtailed by the provisions of the care plan in that matter where the provisions of the care plan were not obviously embodied in the order made by the Children's Court but were considered as part of the process of exercising the Court's jurisdiction to make a care order. His Honour Justice Campbell stated at [54]: "In every case there must be a permanency plan, and in every case there must be a finding of adequacy and appropriateness in relation to that permanency plan. However, the permanency plan is not enforceable in every case. It is only enforceable in those cases where it has been, I will repeat, embodied or approved in an order of the Children's Court." 1. Further, His Honour Justice Campbell in AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028, at [60] held: "In my judgment, a finding for the purpose of s83(7)(a) does not of itself satisfy the statutory language of s83(8). Something more is required. With great respect, I am of the view that PR v Department of Community Services [2009] NSWADT 277 remains correct in its analysis. It is necessary to my mind that a particular proposal, aspect or requirement of the permanency plan is picked up and expressly incorporated in the order of the Children's Court if s 245(1B) is to be brought into play in a given case. That has not occurred here." 1. None of the parties before the Tribunal asserted that the permanency plan in relation to any of the children had any relevance to this particular application. 2. The Tribunal has jurisdiction to hear this matter. 3. The paramount principle in any action or decision under any provision of the legislation concerning a particular child is the safety, welfare and well-being of the child: section 9 (1) of the Children and Young Persons (Care and Protection) Act. 4. The Tribunal is required to determine what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the decision maker: section 63 Administrative Decisions Review Act 1997; YG v GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25]. 5. Clause 34 of the Children and Young Persons (Care and Protection) Regulation 2012 provides: 34 Conditions of authorisations (1) A designated agency may at any time impose such reasonable conditions as it thinks fit on the authorisation of an authorised carer, including a condition that provides that the authorised carer may provide out-of-home care only to specified children or young persons or to children or young persons belonging to a specified class. (2) A designated agency may at any time vary or revoke a condition of an authorisation imposed under subclause (1). (3) The imposition, variation or revocation of a condition takes effect when it is notified to the authorised carer in writing. (4) It is a condition of an authorisation that the authorised carer must comply with the code of conduct for authorised carers. (4A) It is a condition of an authorisation that an authorised carer may provide out-of-home care only to a child or young person who is a relative or kin of the carer or who knows the carer unless the carer has completed a course of training on the provision of care for a child or young person who is not a relative or kin of the carer. (5) In this clause: "code of conduct for authorised carers" means the code of conduct for authorised carers approved by the Minister for the purposes of this definition and published on the relevant website of the Department, as in force from time to time. Note: The relevant website of the Department is www.community.nsw.gov.au. 1. Conditions of authorised care therefore may be imposed pursuant to section 137 of the Children and Young Persons (Care and Protection) Act and clause 34 of the Children and Young Persons (Care and Protection) Regulation. 2. Pursuant to section 140 of the Children and Young Persons (Care and Protection) Act the respondent has obligations to supervise placements of children with authorised carers. If the carer does not comply with those undertakings or conditions then it is up to the agency to take further and additional action about those matters. 3. The Code of Conduct for authorised carers provides that the carers shall follow the lawful policies, procedures and guidelines brought to their attention by the designated agency, and shall provide a physical environment that is safe, clean and comfortable and meets the needs of the children in the authorised carers' care. The Code of Conduct also provides that the carers should provide a care environment where the child is not exposed to physical, sexual, psychological or verbal abuse, ill-treatment or neglect. 4. The objectives and principles contained in sections 8 and 9 of the Children and Young Persons (Care and Protection) Act embody protective measures to ensure that the child is safety welfare and well-being is given primacy. There is particular emphasis in the intervention powers granted to the Secretary by that Act to remove a child from their usual caregiver in order to protect the child from the risk of serious harm. The risk of serious harm is undefined in the Act but it has been held that "it is quite clear that exposure to sexual abuse comes within the phrase. Obviously, physical violence is within the phrase": Re Cameron [2012] NSWSC 1453 at [13], Young AJ. It also includes risk of sexual harm. Evidence relied upon 1. The parties relied upon documentary evidence. 2. The applicants and respondent relied upon: 1. Affidavit of the applicant dated 15 November 2016: Exhibit 1; 2. Affidavit of the applicant dated 16 December 2016: Exhibit 2; 3. Report by psychologist Jessica Pratley dated 8 December 2016: Exhibit 3; 4. Bundle of Section 58 Documents: Exhibit 4; 5. Affidavit of HIJ, Practice Specialist for the respondent, sworn 26 November 2016: Exhibit 5; 6. Affidavit of JGM independent assessor filed 1 December 2016: Exhibit 6. 7. Affidavit of KAM caseworker for the children sworn 25 November 2016: Exhibit 7. 8. Affidavit of HIJ sworn 13 January 2017: Exhibit 8. 9. Report by psychologist Jenny Howell dated 9 January 2017: Exhibit 9. 10. Attachment V, Carer Review and Assessment dated 15 July 2016: Exhibit 10. 11. Internal Review dated 31 August 2016: Exhibit 11. 12. Affidavit of KAM sworn 20 January 2017: Exhibit 12. 13. Affidavit of KAM sworn 30 January 2017: Exhibit 13. 14. Affidavit of the applicant filed 31 March 2017: Exhibit 14. 15. Affidavit of KAM dated 28 March 2017: Exhibit 15. 16. Letter from the carers of the eldest child dated 25 January 2017: Exhibit 16. 1. In addition, the Tribunal heard oral evidence and oral submissions and received written submissions which have been considered with the documents listed. Issue 1. The Tribunal is required to determine what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the decision maker: section 63 Administrative Decisions Review Act; YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25]. 2. There is no requirement upon the applicant to show that the original decision maker's decision was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88. The evidence 1. A statement contained in these reasons of a factual matter is a finding of fact based upon the evidence referred to in these reasons. A finding of fact will be determined upon the civil standard of proof which is on the balance of probabilities. 2. Daniel Jarvis psychologist gave oral evidence at the commencement of the hearing on 1 February 2017. Mr Jarvis has provided therapy and counselling assistance to 2 of the children. The eldest child is confused and considers the applicant as his mother. It was the view of Mr Jarvis that some of his behaviour was deliberately sabotaging the placement that he had following removal from CSY's care, leading to kinship placements for him. The eldest child now aged 11 was also missing the husband of the applicant. The eight-year-old child was not functioning particularly well and was finding it difficult to transition after contact visits with the applicant. This child wishes to be reunited with the family of the applicant. 3. The applicant entered into a number of agreements with Veritas House as to the care of the children and the applicant's husband was required to leave the family home after he was charged with the offences to which reference has previously been made. 4. The applicant was assessed to lack insight into the risk to the children posed by her husband because of her attitude towards the allegations made against her husband, her attitude toward her granddaughter who had reported the alleged assaults and her capacity to seriously consider whether the three boys had been exposed to, or would be exposed to, any risk of harm from her husband. As a result of that deficient insight it was considered that the applicant lacked capacity to act protectively in relation to the children. The applicant was also assessed to have insufficient capacity to prioritise and respond to the needs of the children. 5. There was an internal review on 31 August 2016 of the initial decision to remove the children from the care of the applicant, which confirmed the decision to remove the children from her care. 6. The applicant clearly has a great deal of love, affection and exhibited devotion to the three children who were in her care and that is the primary motivation for these proceedings. 7. The applicant was assessed by psychologist Ms Pratley who produced a report dated 8 December 2016. The recommendation made by Ms Pratley was for the applicant to undertake counselling to develop an understanding of and insight into the dynamics of intrafamilial child sexual abuse in order to ameliorate the risk that she would not be protective enough to observe and prevent any sexual abuse occurring. 8. The applicant was also assessed by Ms Howell forensic psychologist who prepared a risk assessment report at the request of Veritas House. Prior to preparing the report Ms Howell was contacted by the applicant for the purposes of engaging in counselling as recommended. Ms Howell was unable to provide that counselling and had no further contact with the applicant. The evidence of Ms Howell is that she is not the most appropriate person to provide the type of counselling required by the applicant. It was her recommendation that community-based counselling organisations would be appropriate places to provide counselling required for the applicant to develop further insight. 9. Ms Howell did not have the benefit of actually meeting the applicant beyond the telephone call referred to in the previous paragraph. This is a significant detriment to her formulation of an opinion. However, Ms Howell is an experienced and capable forensic psychologist whose opinions the Tribunal accepts subject to the qualification that she has not actually physically met the applicant. 10. The applicant initially had difficulty coming to terms with the allegations when they were first raised in March 2016. Subsequent to this the applicant has not shown any significant change in her attitudes and her belief in her husband's innocence has not diminished with the passage of time. The applicant has not commenced the counselling which has been recommended in order to awaken and consolidate an understanding of the dynamics of intrafamilial sexual abuse. The acquittal in the criminal proceedings has created a dilemma for the applicant because she has never considered her husband to pose a risk to the children. The evidence is that the applicant initially disbelieved the allegations made by her granddaughter against her husband and called granddaughter a liar. The applicant also advocated for contact between her husband and children. 11. The applicant clearly does not believe that her husband represents a risk to these three children or to any other children. 12. The applicant had sourced and explored some child protection training over the Internet but this was not the type of education which has been recommended by the psychologist. 13. The children have experienced significant loss by the removal from the care of the applicant and the loss of the relationship with the applicant's husband. 14. The Tribunal would have to have confidence in the applicant to show insight, skills and a capacity to support the children as they process the reasons for the removal as they mature in order to contemplate restoration of the children to her care. The applicant would need to establish and maintain boundaries around the children's contact and interaction with her husband if the children returned to her care. An example of the interaction which occurred in the toy department of a local store prior to removal is that the applicant did not remove the children from the store, and allowed the contact to occur, despite having entered into an agreement which provided that there should be no contact between the children and her husband. Ms Howell gave evidence that the applicant didn't react appropriately by permitting the rules to be broken and the potential for harm was "quite great". The applicant has not developed a protective belief system. Instead, the applicant believes that her husband has been unfairly treated or erroneously maligned which feeds into the belief system which negates the required capacity for child protection. Ms Howell identifies that the applicant's lack of understanding of the dynamics of child sexual abuse together with her stated belief of the husband's innocence severely limits her ability to act protectively. Ms Howell identifies that many adults wrongly assume that a child would tell them if they were being abused or that the adult would be able to tell if the child was being abused. The applicant stated she had a very close relationship with her granddaughter, that they often spent time together and that she had opportunities to tell the applicant what happened to her. There is also an unacceptable risk of harm to the children if the applicant exposes them to her views which are essentially supportive of her husband. 15. Even before the acquittal of her husband the applicant remained in regular contact with him. The applicant's husband took her to the interview with Ms Pratley because she had no other support to travel with her. Additionally, there was evidence that the applicant's husband had attended her premises on a number of occasions to finish off building works that he had commenced prior to moving out of the home. In fact, the applicant's husband was at her house on the morning of the first day of the hearing, and she gave evidence that he would not be required to further attend her residence. During the period of the adjournment husband had in fact visited her home three or four times to complete the construction of a "cubby house" and to deliver money. 16. The applicant gave evidence in support of her husband at the criminal trial. The husband also attended her house and on occasion stayed overnight. Despite the applicant's evidence that the relationship was in effect finished, there was clearly a level upon which the relationship continued. The majority of the applicant's social and support network are members of the husband's extended family. The applicant is not in contact with her grandchildren or children due to the difficulties in her relationship with her daughter and granddaughter. In addition the applicant has not mended her relationship with her son and his family. 17. There was an issue which arose during the course of the proceedings about inappropriate material on an Internet accessible device used by the children. Ultimately, this issue has little bearing upon the decision that the Tribunal has to make. The applicant submits that she will in the future be vigilant with electronic devices provided to the children. It is clear that she has a limited understanding of electronic devices but this is not a relevant factor in the determination by the Tribunal. 18. Ms Pratley agreed to be bound by the Expert Witness Code of conduct contained in NCAT Procedural Direction 3. The applicant met with Ms Pratley for approximately two hours and 15 minutes during which time she completed some psychometric assessments. Ms Pratley had no substantive information about the nature of the children's attachment to the applicant or the children's current functioning. She records that the two older boys believe "someone lied" about the applicant's husband. The youngest child is non-verbal. 19. Ms Pratley noted that the assessments which resulted in the children being removed from the applicant's care determined that the applicant was not able to prioritise the children's needs over her husband's. The applicant was found in those assessments to have not supported her daughter and granddaughter. 20. The applicant has a history of depression when her biological daughter was aged three. The applicant's mood improved with counselling as well as significant changes in her situation and improvement in her social network. The applicant resumed antidepressant medication in 1997 following the death of her brother. After about 18 months she ceased the antidepressant medication with no difficulties. The applicant took antidepressants when her husband was charged with the offences. Other than those factors the applicant described herself as able to cope with daily stressors and anxieties by distracting herself and by seeking emotional support from her friends. At the time of commencement of her relationship with her husband, her son was 17 years old and her daughter was 13 years of age. The applicant told the assessor that her daughter did not accept her new relationship, but told Ms Pratley that her daughter had "discovered boys and lies… She wanted freedom, didn't want to live by our rules." The assessor determined that the applicant had prioritised her relationship with her husband over her relationship with her daughter. 21. The applicant's son is currently 36 years of age and her daughter is aged 32. The son has four children: a boy aged 16, 13 year old twin girls, and a six-year-old daughter. The applicant's daughter has three children aged 14, 12 and 10 years of age. The eldest of those children is the alleged victim of her husband's abuse. The applicant's daughter and her children resided with the applicant and her husband for a period of time. The applicant's daughter formed a new relationship and moved out with her children. The applicant and her husband continued to care intermittently for those children after the daughter moved out. 22. The applicant told Ms Pratley that she had decided to legally separate from her husband if the boys are restored to her care. Ms Pratley noted that the husband had accompanied the applicant to Sydney for the assessment because the applicant said she was not comfortable driving in Sydney and that her other family members were working, so she did not feel able to ask them to bring her. She told Ms Pratley that she sees her husband every couple of days. 23. The applicant's husband is alleged to have behaved in a sexually abusive way to his step granddaughter which was allegedly perpetrated in the family home and while camping. The applicant was allegedly present on two of the occasions, although there is no suggestion that she was aware of what her husband was doing. The granddaughter made clear disclosures that identified times, dates and acts involving penile penetration which occurred between the ages of 9 to 13 years. The allegations were substantiated by Family and Community Services but as stated previously he was acquitted at trial. 24. Ms Pratley identified that the applicant had a superficial understanding of grooming and did not reflect the nuances that are present in intrafamilial abuse. This is consistent with the assessment of the assessor. 25. The applicant told Ms Pratley that her husband attempted suicide by carbon monoxide poisoning in his car in the garage of the family home "not because he thought he was guilty, but because he knows he'll never get the boys back". 26. The applicant admitted to Ms Pratley that she may have stated that she would kill her daughter as a function of her being frustrated and overwhelmed with the allegations. 27. Ms Pratley recommended that the applicant engage in appropriate counselling with a clinician experienced in the field of intrafamilial sexual abuse. This is also the opinion of Ms Howell. Ms Pratley considered that there were no significant barriers to the applicant improving her parenting capacity. 28. The failure of the applicant to engage in appropriate counselling intervention together with her continued belief in her husband's innocence are indications of her incapacity to supervise time between the children and her husband, because she does not support the available inference that they are at an unacceptable risk of harm from her husband. 29. The children have lived for the majority of their lives as brothers raised by the applicant which suggests that they have formed strong attachments between the children and the applicant and between the children themselves according to Ms Howell. The children will experience feelings of loss following their absence from the applicant if those attachments are strong. However, it is also the assessment of Ms Howell that it is not now possible to put in place appropriate strategies that would mitigate risk and ensure the children's safety. Ms Howell was critical of Exhibit 16 which showed that the familial placement was also not in the interests of the particular child for similar reasons to those expressed by Ms Howell about the applicant's beliefs. The Tribunal agrees with those opinions. The continued beliefs of the applicant do not support a view that she would adequately or consistently endeavour to minimise risk and act protectively to minimise risk of further emotional and psychological harm for the children. Consideration of risk - legal principles 1. All decisions made under the Act concerning a particular child mandate that the safety, welfare and well-being of the child must be "the paramount consideration" and it has been held that an order removing a child from the care of his or her family should be made if there is an "unacceptable risk" of harm to the child: see M v M [1988] HCA 68; 166 CLR 69 at [25]; Section 9(1); MXS v Department of Family and Human Services (NSW) [2012] NSWDC 63; Department of Family and Community Services (NSW) and the Bell-Collins Children [2014] NSWChC 5, at [70]; Bell-Collins Children v Secretary, Department of Family and Community Services (No. 2) [2016] NSWSC 853, per Justice Slattery at [26]; see also The Department of Community Services v "Rachel Grant", "Tracy Reid", "Sharon Reid and "Frank Reid" [2010] CLN 1 per Judge Marien at [61]. 2. The President of the Children's Court Judge Johnstone in DFaCS (NSW) and the Colt Children [2013] NSWChC 5 at [143] referred to the now well settled law that the proper test to be applied is that of "unacceptable risk to the child" and said: "Whether there is an "unacceptable risk" of harm to the child is to be assessed from the accumulation of factors proved: see Johnson v Page [2007] Fam CA 1235. This test of whether there is an "unacceptable risk" of harm to the child is the sine qua non for the application of the Act: see M v M [1988] HCA 68 at [25]." 1. In Johnson v Page [2007] Fam CA 1235; (2007) FLC ¶93-344 the Full Court of the Family Court referred with approval to an analysis which helps to explain the High Court decision in M v M; 68. In his recent paper entitled 'Unacceptable risk – A return to basics' the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows: 1 The decisive issue is and always remains the best interests of that child. All other issues are subservient. 2 The nature of the risk is best expressed by the term 'unacceptable risk'. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable. 3 Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies. 4 The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk. 5 The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child. 6 The onus of proof in reaching that conclusion is the ordinary civil standard. 7 But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard. and thereafter expanded some points contained in the summary. 69. Relevantly for the issues raised in this appeal, he noted that rather than referring to "the Briginshaw test" it was now more appropriate to refer to s 140 of the Evidence Act 1995 (Cth) ("the Evidence Act")…" (emphasis added) 1. In Blinko and Blinko [2015] FamCAFC 146 ("Blinko"), the Full Court of the Family Court discussed the appropriate approach in dealing with issues of risks and the obligation on the Court to consider whether the imposition of conditions or other safeguards would ameliorate those risks in the context of a family placement for the children. The Full Court usefully summarised the relevant authorities as follows at [83]: "It may be taken as well established by a line of authorities generally acknowledged to commence with Russell & Close (Unreported Full Court, 25 June 1993) that the following are correct statements of principle: - If a Court is satisfied that a parent represents an unacceptable risk of harm to a child, then unless that risk is able to be sufficiently managed or ameliorated by, for instance, supervision of any time or communication between the parent and the child, the best interests of the child may require an order prohibiting that parent from spending time or communicating with the child; -If the Court does not find that a parent represents such an unacceptable risk of harm, nonetheless it may take into account anxiety on the part of the other parent arising from their genuine, but not necessarily rational, belief that the parent represents such a risk of harm. In such a case, the other parent's belief must be genuinely held. If it is entirely irrational and baseless, then the genuineness of the belief would clearly be open to doubt. However where such a belief is genuinely held, if the child spending time with a parent would sufficiently erode the other parent's capacity to properly care for the child, then that may of itself mean that the ensuing detriment to the child determines that it is in their best interests not to spend time or communicate with the parent; -Further, where the history of abuse, violence or like behaviour between two parents means that any continued interaction between them would similarly erode the resident parent's capacity to care for the child, the need for peace and tranquillity in their household may be a more compelling need for the child and hence also might justify an order prohibiting the other parent from spending time or communicating with a child: see Sedgley & Sedgley (1995) FLC 92-623." 1. In Blinko the Full Court made it clear that a necessary part of assessing risk requires the Court to also consider possible measures to ameliorate that risk. In that respect the Full Court said at [27]: "A consideration of risk, and factors which impact upon or ameliorate the risk, will in most cases be inextricably linked. That is because "[t]he object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of 'benefit to the child": see Hon John Fogarty AM "Unacceptable Risk – A Return to Basics" (2006) 20 Australian Journal of Family Law 249 at 261". 1. It is of significance that the Full Court found that the learned trial judge fell into "discretionary error" when he failed to consider a range of potential means whereby the risk to the child of having a relationship with the father could have been ameliorated. Possible options, the Full Court noted at [31], were: 1. Permitting the father to send cards, gifts or letters to the child, whether on special occasions or more regularly; 2. Permitting the child to spend supervised time with the father on one or more occasions during the year for a fixed period (on a final and not interim basis); Introducing, on an interim basis, some closely supervised time between the child and the father with adequate counselling supports, and after some period of time reviewing the efficacy of such arrangements; and 4. Requiring the mother and child to engage with appropriate therapists with a view to preparing the child for re-unification counselling with the father. 1. In terms of the obligation to address issues of risk associated with children being subject to or exposed to family violence, in Deiter & Deiter [2011] FamCAFC 82 ("Deiter"), (referred to with approval in George & George [2013] FamCAFC 182 at [21] and see also Enmore & Smoothe [2014] FamCAFC 131 at [35]), the Full Court at [61] said: "The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made…" 1. As the High Court has observed in a number of decisions it is considered in children's best interests to maintain a filial relationship between children and their "parents". In M v M [1988] HCA 68; 166 CLR 69 at [20], the High Court referred to the balancing exercise to be undertaken in assessing risk: "The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v. Lieschke [1987] HCA 4; (1987) 162 CLR 447, at pp 450, 458, 462, 463-464." 1. The respondent contends that the children will be an unacceptable risk of harm if they are returned to the care of the applicant. The applicant made agreements with the respondent while the children were in her care in order to minimise the risk of harm to the children. Those strategies did not work. Ms Howell gave evidence that the applicant didn't react appropriately by permitting the rules to be broken and the potential for harm was "quite great" in one example of a failure of those strategies. The severity of the impact likely to be caused by exposure to risk of harm is considerable and also likely to be long lasting. CONCLUSION 1. The paramount concern in these proceedings is the safety welfare and well-being of the children, as required by section 9 (1) of the Care Act. 2. The allegations of sexual abuse were substantiated by Family and Community Services on the balance of probabilities and the Tribunal accepts that finding is appropriate based upon the evidence of the disclosures by the complainant. 3. The outcome of the carer assessment highlighted concerns about the applicant's functioning and behaviour and level of insight, raising concerns that the children were at risk of psychological and emotional harm. The failure of the applicant to engage in appropriate counselling intervention together with her continued belief in husband's innocence are indications of her incapacity to supervise time between the children and her husband because she does not support the inference that they are at an unacceptable risk of harm from her husband. 4. Once attempts are made to ameliorate the perceived unacceptable risk of harm and those conditions do not ameliorate the unacceptable risk there are very few remaining options. In addition, the applicant has not undertaken or completed to an acceptable level the recommended counselling with a clinician experienced in the field of intrafamilial sexual abuse. Therefore, it is the conclusion of the Tribunal that the children are at unacceptable risk of harm in the care of the applicant which justifies their removal from her care. 5. The correct and preferable decision in all of the circumstances is to remove the children from the care of the applicant. Since their removal it is the Tribunal's finding that the children have tried to settle and it would not be in their interests to again change their current living circumstances. The Tribunal accordingly affirms the decision of the respondent to remove the children and finds no reason to restore them to the care of the applicant. 6. Additionally, for those reasons the correct and preferable decision in all of the circumstances was to cancel the authorisation of the applicant to provide out-of-home care. 7. The decision and order of the Tribunal shall be: 1. The decision to remove the children from the care of the applicant is affirmed. 2. The decision to cancel the authorisation of the applicant is affirmed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 29 June 2017