Public hearing 13: Disability services (a Case Study), Sydney - Day 1

CHAIR: Good morning, everybody, both here and watching more remotely.
OPENING REMARKS BY CHAIR

CHAIR:  I welcome everybody this morning to this Public hearing 13 of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability.  The principal purpose of this five day hearing at Homebush is to examine the experiences of people with disability who are NDIS participants and who live in a disability residential setting managed by the service provider, Sunnyfield Disability Services.

We commence, as always, with an Acknowledgment of Country.  We wish to acknowledge the Wangal people of the Eora Nation, the traditional custodians of this land, and pay our respects to their Elders past, present and emerging.

We also acknowledge the Wurundjeri people of the Kulin Nation, upon whose lands Commissioner Galbally is sitting.  We pay our respects to their Elders past, present and emerging.  We also pay our respects to all First Nations people attending the hearing in person today, as well as those viewing the hearing on the livestream.

Let me deal with the resumption of hearings.  Exactly 15 months and six days ago, on 18 February 2020, the Royal Commission commenced a 10 day hearing at this very venue.  The subject matter of that hearing was health care and services for people with cognitive disability.  That was the last time before the COVID pandemic struck that the Royal Commission was able to hold a hearing at which members of the public could actually attend in person.

As people who have been following the work of the Royal Commission will know, we were forced to suspend public hearings for a period of six months because of the pandemic.  We resumed our program of public hearings in August 2020, with Public hearing 5, which examined the experiences of people with disability in the early stages of the COVID 19 pandemic.  That hearing and the seven hearings that followed have been conducted remotely, without members of the public being able to observe the proceedings firsthand.  Of course, it has always been possible to follow hearings through the Royal Commission's livestream of the proceedings.

Today's hearing marks the return of public hearings in the fullest sense.  We hope that all of the further hearings of the Royal Commission, leading up to presentation of our Final Report, now due in September 2023, will also be open to all members of the public who wish to attend.  Whether this proves to be the case in practice obviously depends upon the success of the Australian community and the authorities in preventing further outbreaks of COVID 19.

At today's hearing, I am joined by Commissioner Alastair McEwin AM in Homebush, Sydney; Commissioner Rhonda Galbally AC has not yet been able to  
leave Melbourne, so she is joining the hearing remotely from Victoria.

Commissioner Roslyn Atkinson AO was to participate in this hearing but, as was publicly announced last Friday, she has tendered her resignation as a Commissioner for personal reasons.  I wish to record on behalf of all Commissioners our profound appreciation for Commissioner Atkinson's invaluable contributions to our work and our regret that she is leaving the Royal Commission.  Commissioner Atkinson has contributed tirelessly to all facets of our many activities and has provided many significant insights into the complex policy and rights issues we face.  We thank her most sincerely for her contributions and wish her well for the future.

Let me say something about our shifting focus and turn first to the past.  In my opening remarks at Public hearing 4, I explained the distinctive nature of this Royal Commission when compared with others.  In particular, I pointed to the extraordinary breadth of our Terms of Reference which, amongst other things, require us to inquire into what should be done to prevent and better protect people with disability from experiencing violence, abuse, neglect and exploitation.  The Terms of Reference also stress the importance of exposing violence against and abuse, neglect and exploitation of people with disability in all settings and contexts.

There are many aspects of the work of the Royal Commission: receiving and processing submissions, which now number nearly 2,500; publishing issues papers and overviews of responses to issues papers --- we have now published 13 issues papers and received nearly 600 responses, many of which are extremely detailed and very helpful; conducting an extensive research program and publishing numerous research reports; holding many forms of community engagement, including, of course, engagements with First Nations people and CALD people and communities; and conducting private sessions, both remotely and now more often in person, we have held 372 private sessions to date.

Public hearings are, therefore, only one aspect of the Royal Commission's work, but they are a very important part.  Public hearings provide the forum for investigating the many complex and difficult issues arising in a multitude of settings in which people with disability are exposed to the risk of violence, abuse, neglect and exploitation.

Hearings also provide a forum to examine the conduct, including a failure to act, of governments, institutions, commercial entities and individuals that may have contributed to the violence, abuse, neglect and exploitation experienced by people with disability in our community.  The hearings provide an opportunity for people with disability, their families and supporters, together with the wider Australian community, to follow the work of the Royal Commission in real time.

Up to date at hearings, we have concentrated on exposing systemic failings that affect the wellbeing of people with disability in areas that seem to be as diverse as education, healthcare, group homes, the use of restraints such as psychotropic drugs, the criminal justice system and employment.  I say "seem to be diverse" because a  
critical theme that has emerged from the Royal Commission's work in the two years since we were established is the interconnectedness of the experiences of people with disability throughout the course of their lives.  The issues we are addressing cannot be considered in isolation from each other.

We have examined these issues through accounts of people with lived experience of disability or, where this has not been possible, through accounts given by family members or supporters; we have identified the crucial policy questions that must be addressed if transformational changes are to be achieved.  As part of this process, we have sought to explore the reasons for the systemic failures that have contributed to violence, abuse, neglect and exploitation of people with disability.

In the hearings we have, from time to time, sought explanations from those responsible for delivering services or for ensuring that the human rights of people with disability are respected.  We have had occasion to challenge some of these explanations and we have made some findings and recommendations about systemic failures and identified numerous matters, specific matters, for further investigation.

The results can be seen in the Commissioner's reports of public hearings, of which four have been published to date, with a fifth, on Public hearing 6, addressing the use of chemical restraints on people with disability --- the fifth of the Commissioners' reports dealing with Public hearing 6 will be published shortly.

Let me turn to what is, in effect, a new phase.  The Royal Commission has always intended to explore issues relating to the quality of the NDIS funded services and supports and the adequacy of external oversight and accountability mechanisms.  The personal experiences of people with disability conveyed through submissions, private sessions and other forms of engagement, have reinforced the importance of this aspect of the Royal Commission's work.

In a sense, this hearing marks a move to a new phase of our investigations.  We intend to undertake a forensic analysis of case studies involving allegations of violence, abuse, neglect or exploitation, directed to or experienced by people with disability who are participants in the NDIS.  This will be the approach taken at this hearing, the next hearing, Public hearing 14 scheduled to commence on 7 June in Adelaide, and at least two additional hearings later this year.

Nothing I have said should be taken as expressing any view by Commissioners about the evidence to be adduced at this hearing.  Whether it is appropriate for Commissioners to make findings about the conduct of any party will depend upon the nature of the evidence that is given and will require careful consideration by Commissioners of any submissions made by Counsel Assisting and the parties who have leave or will have leave to appear.

The significance of the case studies goes beyond a consideration of the actions of particular service providers or regulatory bodies in specific situations.  The case studies are intended to illuminate the practices and policies of NDIS service  
providers and of the regulators, insofar as they affect the wellbeing and human rights of people with disability who are participants in the NDIS.

Let me provide some very basic data --- there will be, I am sure, more detail in the evidence, but let me provide some basic data to provide context for this hearing.  As at September 2020, the NDIS had 412,543 participants.  Nearly three quarters of these were people with autism or intellectual, psychosocial or developmental delay disabilities.  About half of NDIS participants were aged 18 or under.  First Nations participants comprised 6.6 per cent of all NDIS participants, that is, 27,109; while Culturally and Linguistically Diverse participants comprised 9.27 per cent of all NDIS participants, that is, 38,252.

Most, although not necessarily all, of the case studies to be examined at hearings, including this hearing, will include NDIS participants who live in what is called Specialist Disability Accommodation or SDA.  SDA is how the NDIS funds specialist housing for NDIS participants with very high support needs.  It is a form of capital funding for the provision of dwellings --- that is, the bricks and mortar --- not the services and supports that are delivered to the residents of the SDA dwelling.

In December 2020, the NDIA recorded that there were 5,978 SDA dwellings, with a total capacity of 17,155 residents.  The actual number of residents in SDA dwellings three months earlier was 15,667.  Most SDA dwellings involve what are called cash arrangements.  Of those, 65 per cent have a capacity of 1 3 residents, nearly one third, 31 per cent, are group homes with a capacity of 4 5 residents, while only 4 per cent, or 200, SDA dwellings have a capacity of six residents or more.

In September 2020, there were 9,150 active NDIS service providers across Australia.  They provided a wide range of supports and services for NDIS participants but only 228 active NDIS service providers were registered to provide SDA supports.

As I have already indicated, SDA supports are separate to the services that are provided to someone in their home to assist with independent living.  Those services are provided by funding known as Supported Independent Living or SIL.  A number of investigations and inquiries have already considered the interaction between SDA and SIL funding on a broader level.  These include the review of the National Disability Insurance Scheme Act which was conducted recently and is known as the Tune Review, and a review undertaken by the joint standing committee on the NDIS' report into Supported Independent Living.  NDIS service providers actually provide the services to people with disability living in SDA dwellings.

While the two reports I have mentioned considered the interaction of SDA and SIL funding on a systemic level, this hearing will consider the interaction of those two types of funding in the context of a single disability residential setting, operated by one service provider.

As we shall hear in the course of these forensic hearings that the Royal Commission proposes to undertake, there will be a number of issues examined, systemic or policy  
issues.  They include, without being exhaustive, the governance of service providers; the recruitment, training and supervision of disability support workers, including the casualisation of disability staff; internal complaints handling and investigations of allegations of violence, abuse, neglect or exploitation; communications between service providers and regulators and the families and supporters of people with disability; the role of community visitors or similar oversight mechanisms; and the role of external bodies, such as the NDIS Quality and Safeguards Commission and police, where complaints or allegations concern criminal conduct.

It can be readily seen by anybody who has been following the work of the Royal Commission that many of these issues have already received attention to some extent in our public hearings.  For example, Public hearing 3 on group homes considered complaint handling mechanisms and the role of external agencies in monitoring the treatment of people with disability in group homes.

This reflects a point that has been made at a number of other hearings.  The fundamental task of this Royal Commission is encapsulated by the requirement in the Terms of Reference that we investigate:

what should be done to promote a more inclusive society that promotes the independence of people with disability and their right to live free from violence, abuse, neglect and exploitation.

The subject matter of the 12 hearings to date and the evidence that has been received constitutes, as I said earlier, a mosaic or, if you prefer a more humble simile, the pieces that the Royal Commission will need to assemble in an integrated and coherent manner in our Final Report.

I shall now take appearances.

MS EASTMAN:  If the Commission please, my name is Kate Eastman, I'm Senior Counsel Assisting the Royal Commission and I appear today with Ms Elizabeth Bennett.

CHAIR:  Thank you, Ms Eastman.  Can I take other appearances, who will presumably be representatives participating remotely.  Can we start with the Commonwealth.

MS DOWNES:  Good morning.  KE Downes with Mr B Dighton, instructed by Gilbert + Tobin for the Commonwealth.

CHAIR:  You are not appearing remotely, you are actually here.

MS EASTMAN:  Chair, all of these pieces of equipment in front of you are screens and you will see that behind us there is a Bar table and then again behind are further Bar tables.

 
CHAIR:  There is a reason why we can't use these?

MS EASTMAN:  These are screens, not tables.

CHAIR:  I apologise.  Back to the status quo ante.  Next is New South Wales.

MS FURNESS:  Gail Furness and I appear with Trent Glover for the State of New South Wales, instructed by the Crown Solicitor's Office.

CHAIR:  Thank you very much, Ms Furness.  I think there is an appearance for South Australia, is there not?  No?

MS FURNESS:  I also appear for the NSW Ombudsman.

CHAIR:  Yes, thank you, Ms Furness.

There is, I think, an appearance for Sunnyfield; is that correct?

MR DUGGAN:  Commissioners, my name is Duggan, I appear for Sunnyfield.

CHAIR:  Thank you very much, Mr Duggan.  Are there any other appearances?

MR O'BRIEN:  O'Brien is my name, I appear for the witness Eliza.

CHAIR:  Thank you.  Is there any other appearance?

MS EASTMAN:  Chair, there may be further appearances as the witnesses appear during the course of this week but I think that completes the appearances this morning.

CHAIR:  Thank you very much.  Yes, Ms Eastman.

OPENING REMARKS BY MS EASTMAN

MS EASTMAN:  Royal Commissioners, we also acknowledge and pay our respects to the traditional custodians of the lands on which we are meeting today.  We pay our respects to First Nations Elders past, present and emerging, as well as all First Nations people following this Public hearing.

As the Chair has noted in his opening remarks, this is the first of a number of public hearings that will focus on registered NDIS providers and other service providers.  This case study will examine the experiences of Melissa, Carl and Chen.  They live together in what is commonly called a group home in Western Sydney.  Since 1 May 2017, they have received accommodation and support services from a non government disability service provider, Sunnyfield Disability Services.   
Sunnyfield is a member based, for purpose, not for profit registered charity, providing support services for over 1,200 people living with disability in New South Wales and the ACT.

Sunnyfield has been in operation for about 70 years.  It operates 48 homes for 215 residents and Sunnyfield has a staff of over 1,700.

Royal Commissioners, you should be aware that Melissa, Carl and Chen continue to reside at the house and receive services from Sunnyfield.  This week, you will hear evidence that the relationships between the families and Sunnyfield has been strained and difficult.  Melissa and Carl's families are concerned that Melissa, Carl and Chen will not experience any detriment because of this hearing.

Chen and his family have not provided evidence for this Public hearing, but Chen was involved in the incidents where he experienced violence and abuse in the house.

Sunnyfield has also expressed its concern about the impact of this hearing on their clients. 

So, noting these concerns, Commissioners, you have made orders for pseudonyms to be used for Melissa, Carl and Chen, their family members and the employees of Sunnyfield who worked in the house as support workers or coordinators.

Before addressing the issues to be explored in this hearing, we must warn people watching or listening to this hearing that I am about to describe incidents of violence and abuse which are likely to be distressing and confronting for many people.  The Royal Commission encourages people who may be distressed to seek support.  For people attending the hearing at Homebush, the Royal Commission's counselling team are on site and may be contacted for support.

I also note, as you will see on the screen, the contact details for various counselling services, including the Blue Knot Foundation.  The details for Blue Knot, which is a specialist counselling and support referral service for people with disability, their families and carers, are available on the Royal Commission's website.

Commissioners, I am going to start with Melissa.  Melissa is 23 years old.  As a child, Melissa was diagnosed with Prader Willi syndrome.  Prader Willi syndrome is a chromosomal condition that affects multiple systems in the body.  For Melissa, this has resulted in intellectual disability and impaired physical development.  She also lives with autism and post traumatic stress disorder.

People with Prader Willi syndrome want to eat constantly because they never feel full.  The expression used in medicine is hyperphagia.  This means Melissa requires support because of the inability to control food intake and support for daily living generally.  You will hear that it takes someone who is suitably skilled and knows her and takes time with her to understand how to communicate properly with her.

 
Melissa lived with her mother until she was about 13 years old.  Melissa's sister Eliza will give evidence shortly.  She will tell you that in 2011, her mother was overwhelmed and a crisis situation developed.  Eliza realised that Melissa could not live with her mother any more and at that time the only way they could get Melissa into full time residential care was if they legally abandoned her at Melissa's respite service.  That is what they had to do, legally abandon Melissa.

Melissa has now lived in residential disability accommodation for 10 years.  She has lived at the house in Western Sydney since early 2016.  Eliza is Melissa's guardian.  Eliza lives in a regional town, some distance from Sydney, and she comes to Sydney and sees Melissa at the house about every three months.  So, Eliza relies on the staff at the house, particularly the house manager, to provide her with reliable, accurate information about what is happening in the house.

Eliza will give evidence today to tell you about the arrangements that she and the other families made, from late 2016, for Sunnyfield to take over the operation of the house, commencing on 1 May 2017.  Eliza will also tell you that from about mid 2017 she began to have concerns about some incidents in the house and the impact these incidents could have on Melissa.  For example, one of her early complaints was to inquire as to how Melissa broke her finger.  Eliza tried to raise her concerns and made a number of complaints about what was happening in the house at Sunnyfield.  Eliza also made complaints to other agencies, including a complaint to the New South Wales Ombudsman.

Matters came to a head.  By 4 June 2018, Sunnyfield told Eliza it would terminate Melissa's services with effect from 5 September 2018.  Sunnyfield told Eliza that if a new accommodation provider, new accommodation, could not be found by 5 September, Eliza would need to assume responsibility for Melissa's accommodation and support from that point on.

Eliza will tell you this came out of the blue for her.  She was terrified that Melissa was going to lose her home and concerned about the impact this would have on Melissa.

Two days after receiving what was in effect an eviction notice, Eliza and an organisation working with Melissa as a support coordinator, notified the NDIA of Melissa's change of circumstances and they requested the NDIA increase Melissa's support coordination funds to find alternative accommodation.

Eliza also asked Sunnyfield why it had decided to terminate Melissa's services and effectively evict Melissa.  On 13 June 2018, Sunnyfield's General Manager of Shared Living wrote to Eliza.  They told Eliza that "it was not in Sunnyfield's overall best interests to continue to provide services in an environment where
[Eliza] so clearly lack trust in Sunnyfield, our staff and our policies".

Ms Cuddihy, who will give evidence later this week, is the CEO of Sunnyfield and she will tell you that the decision to terminate Melissa's services was not made  
lightly.  Ms Cuddihy will tell you that Sunnyfield considered the potential impacts on Melissa but Sunnyfield "formed the view that, on balance, it was concerned for the wellbeing of staff, due to the levels of stress that they reported" and "Sunnyfield was also concerned that issues reported by staff [as she identified above] had resulted in the situation that it was not in Melissa's best interests to remain".

By 13 June, Melissa's support coordinator told the NDIA that 13 organisations had been contacted in relation to vacancies for alternative accommodation.  No suitable accommodation had been identified.  Eliza, by this stage, was deeply concerned that Melissa would become homeless.  Eliza made a complaint about the proposed eviction to the New South Wales Ombudsman and also to the NDIS Quality and Safeguards Commission.  She also contacted her local member and approached the media.

You will hear this week from Mr Graeme Head, the NDIS Quality and Safeguards Commissioner, that the NDIS Quality and Safeguards Commission identified this complaint as "high risk".  It was one of the earliest complaints received by the Commission that had commenced its operation in New South Wales on 1 July 2018.

You will hear how the Commission responded to the complaint and the action it took, and you will hear that the Commission did not have the power to compel Sunnyfield to provide supports to Melissa.

In December 2018, Sunnyfield and Melissa participated in a mediation.  Ms Cuddihy will tell you at the mediation, Sunnyfield agreed to continue to provide services to Melissa, while Eliza sourced alternative accommodation and services for her.  Ms Cuddihy will tell you this week that Eliza has not provided any update on the status of this process.  Commissioners, you will observe it is now May 2021.

Eliza will tell you that after two years, and despite her efforts, along with those of multiple support coordinators and advocates, they have not found suitable new accommodation for Melissa.  When COVID 19 struck last year, they stopped looking.  Melissa remains at the house.

Sunnyfield has never formally withdrawn the eviction notice.  Melissa continues to live with the threat of eviction looming over her.  However, Eliza's present understanding is that the eviction could not now be enforced as too much time has past, but she will tell you that it still worries her.

Ms Cuddihy will tell you at the present time it is "not clear to me whether Melissa's guardian is still seeking to find alternative accommodation".  Ms Cuddihy will also tell you that at the present time Sunnyfield's concern for staff wellbeing at the house is ongoing.

Commissioners, communications between service providers and their clients and families are plainly of key importance.  In this hearing, we will examine the policies and protocols in place for communication between the families of the house residents  
and Sunnyfield.  Sunnyfield has a communication protocol for coordinating communications between a client's circle of support and Sunnyfield.  The purpose of this protocol is said to be to "foster communication that supports the client's dignity, choice and opportunity."

Over the course of this week, you will hear from Eliza and Sunnyfield about the breakdown in communication and the relationship between them which resulted in Sunnyfield deciding to evict Melissa.  We will examine why Sunnyfield's communication protocol appears to have failed with respect to Eliza and Sunnyfield and what this means in terms of consequences for Melissa.

Many of the communications between Sunnyfield and Eliza appeared to be viewed by Sunnyfield as defensive, tense and ultimately hostile.  Some of the communication issues were elevated to Ms Cuddihy, as the CEO.  One example is an email from 28 September 2017 from the regional manager to the CEO, complaining about Eliza's "passive aggressive communication that she is bombarding us with" and suggesting that Sunnyfield needs to "shut it down". Then in October 2017, the house manager at the home described Eliza as "unhinged". 

Around this time, Sunnyfield was considering training with the New South Wales Ombudsman on "managing unreasonable complainant conduct". 

By 2019, an adversarial relationship between Eliza, on one hand, and Sunnyfield, on the other, was entrenched.  So much so that internal Sunnyfield documents referred to Eliza as "highly demanding" and "querulent".  We will explore these issues.

Can I next turn to Carl.  Carl is 24 years old and Carl's family comes from Lebanon.  They have lived in Australia since 1998.  Carl, who you will meet tomorrow, with a special video that has been prepared, loves dancing, music and being with his family.  He loves the trampoline and the swings, he loves being at the park and he loves going for drives.  He also loves being in water and he used to enjoy swimming.

Carl's mother is Sophia.  She will tell you that Carl and his younger sister were both born blind.  When Carl was about four years old, Sophia started to notice that Carl's cognitive behaviour and motor skills were not developing as fast as her daughter's.  Carl was diagnosed with autism.  He lives with a severe intellectual disability.

Sophia will tell you that as Carl grew, his behaviours became more challenging.  She and her husband had to make a decision.  When Carl was 11 years old, he went to live at a boarding school for children with profound disability.  Carl would live at school from Monday to Friday and then spend the weekend at home with his family.  Sophia will tell you that this worked well until the school closed down about two years before Carl was due to finish high school.

At this stage, Carl was almost an adult and his strength and behaviours of concern meant it was impossible for him to live at home with his family.

 
Carl moved into a residential property operated by a service provider in New South Wales.  About four years later, he moved into the current house that was built for him and the other young people with disability, including Melissa and Chen.  The house is not far away from where Sophia and her family live in Western Sydney.

Because Sophia was at the house frequently, she got to know a number of the support workers who were working with Carl from 2017.  Her impression, visiting the house, was that the staff were often stressed.  But she says she wanted to maintain a professional relationship with the staff and so she didn't ask them to tell her why they were stressed.

That changed in May 2019.  Sophia began to notice just how anxious Carl was around one particular support worker, who we will refer to as SP2.  In June 2019, matters came to a head for Sophia after speaking to some of the staff.  Commissioners, you will hear about Sophia's concerns and how she sought to address those concerns.

Around mid June 2019, a staff member shared the staff member's concerns with Sophia.  The staff member said that she was worried about Carl's safety and the staff member said that she couldn't forgive herself if something happened to Carl and she hadn't told anyone.  This caused Sophia significant worry.

It was also around this time that Sophia had learnt that a few months earlier, when the Christchurch mosque shooting had occurred, there was a news segment about the shooting on the television that was on in the house.  A staff member told Sophia that another support worker, who I will call SP1, said words to the effect, "If it was up to me, I would have shot them all."

SP1 made the comment about the victims of the shooting being Middle Eastern.  The staff member said that she responded to SP1 with words to the effect, "How can you say that?  Carl is Middle Eastern.", and SP1 replied, "I don't care."  When Sophia heard this conversation, and that it had occurred in March 2019, she said it was absolutely shocking.

Very shortly after, on 20 June, SP1 called Sophia to tell her that Carl had been injured in the Sunnyfield van during an outing.  When Carl had returned to the home, support workers had observed that there was blood throughout the van.

On the following day, Friday, 21 June, at around 4.40 pm, the NDIS Quality and Safeguards Commission received an anonymous telephone complaint about SP1's and SP2's treatment of both Carl and Chen.  The anonymous complainant alleged that SP1 and SP2 --- suggested that Carl and Chen had been physically pushed, grabbed and subjected to verbal abuse.

The anonymous complainant alleged SP1 and SP2 had used racist and insensitive language about African and Indian support workers.  It was alleged SP1 told people that he was at a meeting, but in fact he had left the house and had gone fishing, and  
this had occurred on a regular basis.

An allegation was also made that SP1 had been terminated from his previous employment with an organisation providing services in aged and disability settings.

Shortly after, some time between 5.20 and 5.30 on that Friday afternoon, the NDIS Quality and Safeguards Commission telephoned Sunnyfield's Senior Risk and Compliance Manager and expressed serious concerns about the provision of services to Carl and Chen in the house.

Pausing here, Chen has complex support and behaviour support needs.  Chen's family are from an Asian background and English is not their first language.  The records produced to the Royal Commission reveal Chen's family reported that he had had unexplained bruising on his thigh in around July 2018.

Coming back to the sequence of events, on 24 June, Sophia received a phone call from a support worker at the house.  Sophia was told that Carl had had a major behaviour and that he had split his eyelid open.  Sophia arrived at the house before the ambulance arrived and she saw Carl's eye injury.  It was bleeding and it looked terrible.  She then travelled in the ambulance with Carl and they were both very upset.

While she was in the ambulance, and this is around 10.30 am, Sophia spoke with the NDIS Quality and Safeguards Commission.  She provided details to the Commission about the events that had occurred over the previous week, including the incident in the van, and the injury to Carl's upper eye.  Carl was treated in hospital and he received stitches for the injury.

On the following day, 25 June 2019, Sophia also contacted the General Manager of Shared Living at Sunnyfield.  The contact was about the incidents because Sophia was very concerned about Carl's wellbeing in the house.

Later that day, Sunnyfield suspended SP1 on pay.  SP1 denied any misconduct.  Then the next day, Sunnyfield suspended SP2 on pay, and SP2 denied any misconduct.  It should be noted that the records indicate that SP2 had been given a final warning much earlier, on 7 September 2018.

By 29 June, Sunnyfield told the Quality and Safeguards Commission that SP1 and SP2 were suspended, pending an investigation, an independent investigation had been arranged and the allegations had been provided to the police for investigation.

With respect to the independent investigation, Sunnyfield engaged Jennifer Piaud to investigate the allegations about SP1 and SP2 concerning Carl and Chen.  Ms Piaud will give evidence about her experience as an independent investigator, the terms of reference for her investigations, the nature of her investigations, and you will have before you, Commissioners, a copy of her findings in her report.

 
Ms Piaud interviewed Sophia in early 2019.  What we also know from the internal records is by 27 July, Sunnyfield was asking itself, how could this have occurred, what had happened?  In an email that was sent from one of the Sunnyfield staff to the CEO, Ms Cuddihy, the report said this: 

How could this of happened? 

A boiling frog scenario appears to have occurred at [the house]. 

Due to the querulent complaints of one guardian a protectionist approach has occurred towards staff.  Also due to the high level of client disability and behaviours it has masked a potential causation.

Several [Sunnyfield] Response Team investigations did not substantiate previous allegations raised. 

Regional Managers have been naive and distracted by seemingly endless, NDIS driven administration, along with Sunnyfield's need to re-roster to ensure [the relevant industrial award] compliance.

The [house coordinator] has been good at covering up and deceitful in his behaviour that has gone on undetected. 

The staff have been intimidated, racially vilified and frightened of this gun owning [coordinator] and knowing the protected [support worker] and their vital need for their jobs.

Sunnyfield QA Audits have not involved staff other than the [coordinator].

Commissioners, that is SP1: 

HR did not follow-up on complaints and exit interview negative feedback regarding [SP1].

The document then sets out a series of learning.

Commissioners, you may be able to conclude that but 27 July 2019, Sunnyfield itself had diagnosed the reasons for the problems.  On 24 July, the New South Wales Police charged SP1 with five counts of common assault and two counts of stalking/intimidation, with respect to alleged incidents that had occurred between March 2019 and June 2019 in relation to Carl and Chen.

Sophia will tell you that towards the end of July 2019, she was told by the police that charges had been laid against SP2 in relation to the incidents of alleged abuse of Carl and the police would be in touch when they had a hearing date for the court case.

The police did not interview Sophia and did not interview Carl.  Sophia attended the  
first court hearing in November 2019 and there was another hearing in March 2020 in relation to SP2.  She will tell you about her experience listening to the evidence presented at court.  She was horrified by some of the allegations against SP2 that came out during the court proceedings, and she and her husband found it to be very confronting.  The magistrate found that the evidence was insufficient and the charges against SP2 were dismissed.  Sophia and her husband were very disappointed by the outcome.

On 29 August 2019, the New South Wales Police charged SP1 with one count of assault occasioning actual bodily harm, in relation to the allegation SP1 kicked Chen on 12 July 2018.  On 13 March 2020, the charges against SP1 were dismissed by a magistrate.

Later, in October 2019, another Sunnyfield staff member subsequently raised a further complaint to Sunnyfield that SP2 had assaulted Melissa, and that had occurred either on 29 May 2019 or 3 June 2019.  Sunnyfield notified the Quality and Safeguards Commission and the New South Wales Police.  This resulted in SP2 being charged with assaulting Melissa.  The charges were laid on 22 January 2020.  The matter proceeded to court and on 17 August 2020 those charges were dismissed.

Returning now to Sunnyfield's investigation.  Ms Piaud prepared a number of reports with respect to her investigations concerning the treatment of Chen, Carl and Melissa, but she also investigated issues with respect to SP1's recruitment.  Ms Piaud will give evidence tomorrow and, as I mentioned earlier, she will tell you about her reports and findings.

Following her investigations, not all of the allegations of physical abuse or mistreatment of the residents were substantiated.  However, Ms Piaud found that six of the 25 allegations concerning SP1's treatment of Carl and Chen were sustained; two of the 25 allegations concerning SP1's treatment of Carl and Chen were partially sustained; and 17 of the 20 allegations concerning SP2's treatment of Carl and Chen were sustained.

Ms Piaud also identified some more systemic issues.  She said Carl and Chen's parents lacked trust in the staff at the house and this manifested in the parents needing to continually check up on staff and processes.  Ms Piaud warned that this type of culture can either lead to nonreporting of incidents or misrepresenting reporting to cover up for another staff member.

She found that the staff at the house felt bullied by SP1.  She found the staff were segregated based on ethnicity.  She found the culture in the house had become "disjointed and distrusting".  She said there was a lack of understanding about the importance of reporting.  She said there was a mixed understanding among the staff about what constituted abuse, assault and neglect.

With respect to Melissa, Ms Piaud conducted two investigations in September 2019 in relation to unexplained injuries to Melissa that had occurred on 14 August 2019.   
A second allegation was that SP2 had dragged Melissa by the wrists, and that had occurred, as I said earlier, on 29 May or 3 June 2019.

Ms Piaud investigated aspects of how SP1 was recruited to work for Sunnyfield in 2017.  She examined SP1's employment history and whether he had worked at a particular organisation prior to commencing work at Sunnyfield.  Ms Piaud found SP1's employment history displayed significant breaks in employment continuity, which appeared not to have been followed up.  She expressed concern that SP1 had twice refused to answer her question as to whether he had worked for a particular previous service organisation, and that organisation had not been listed in SP1's resume that had been provided by him to Sunnyfield at the time of recruitment.

However, on 7 January 2019, information had been disclosed to the New South Wales Ombudsman, in turn to the Office of the Children's Guardian, pursuing --- I'll withdraw that.  I have missed a page.  My apologies.  Can I walk back.  I will come back to the recruitment.

Commissioners, Paul Miller, the New South Wales Ombudsman, has provided two statements to the Royal Commission.  Mr Miller has declined the Royal Commission's request to give oral evidence at this Public hearing and he asserts he cannot be compelled to give evidence.  We keep our invitation open to him.  But you have the benefit of his statements.

In his first statement, he explained that during March 2018 the Ombudsman was conducting an inquiry into probity checks and recruitment practices of accommodation service providers when obtaining staff from labour hire agencies.  The Ombudsman examined a number of notifications about SP1 in his previous employment, unrelated to and well before his employment with Sunnyfield.

This included an allegation in 2005 of alleged sexual misconduct towards a 17 year old girl in residential care, which was found to have been unsubstantiated for a lack of evidence.  It also included a notification in October 2016 in relation to supervisory neglect of a person with disability, falsifying documents including time sheets, and falsifying a client's medication chart and other misconduct.

As a result of a finding of misconduct, SP1 was dismissed on 30 November 2016 by a service provider.

In September 2018, the Ombudsman's office prepared a draft letter to Sunnyfield, seeking information about Sunnyfield's recruitment and probity policies.  The draft letter set out the October 2016 notification about SP1.  This letter was not sent to Sunnyfield and Mr Miller says it is apparent from the Ombudsman's records that the letter was never sent.

I will come back to where I got up to.

However, on 7 January 2019, this information was disclosed by the New South  
Wales Ombudsman to the New South Wales Office of Children's Guardian, pursuant to a specific statutory provision that permitted the New South Wales Ombudsman to make a disclosure to the Children's Guardian.  Until these proceedings, Sunnyfield had been unaware that the Ombudsman had this information about SP1.

Coming back to what happened to SP1 and SP2, on 9 December 2019, Sunnyfield terminated SP1's employment.  On 21 January 2020, Sunnyfield terminated SP2's employment.  Ms Cuddihy will tell you the events that occurred at the house and, in particular, those concerning the actions of SP1 and SP2, have caused considerable hurt and distress to the residents of the house, to their families, to the staff and to all Sunnyfield staff involved in the matter.

In her statement, she says this:

I wish to express my regrets and deep sympathy for the pain and distress suffered as a consequence of the events which occurred at the house.  In the course of preparing this statement, I have spoken to a number of staff about the events at the house.  All of those staff have communicated to me their upset at the thought that the residents at Sunnyfield have been mistreated in this way.  I feel the same way.

Families will tell you that they have not received an apology and they have not received any redress in relation to these events.

A key question for this inquiry is how and why these events could have happened.  We propose to examine a range of matters, including issues arising when Sunnyfield took over the house in May 2017; the pre employment screening and recruitment of support workers, particularly SP1 and SP2; how Sunnyfield supervised its sport staff.  For example, in an email, SP1 described his stress levels as "going through the roof" in September 2017.  This may have been an important red flag.

We will examine how Sunnyfield's policies worked on a practical level for the day to day operation and management of the house; how residents, families and other support staff could identify red flags and escalate them to senior managers, and Sunnyfield's response team; how family members could raise their concerns without having to escalate those concerns to the level of a formal complaint, and whether their concerns were always addressed and treated seriously.

We propose to examine how Sunnyfield supported Melissa, Carl, Chen and their families during the Piaud investigations, police investigations and the criminal proceedings.

We want to examine whether Sunnyfield accepts that it should be accountable for the events that occurred at the home and consider whether pointing a finger at so called querulent complainants is an approach that is appropriate in the circumstances.  We will examine why Sunnyfield has not apologised for the violence and abuse to the residents or offered any redress to the residents and their families.
 

We propose to examine how NDIS funded services and supports were identified and then provided to the residents and how agreements for accommodation and support services from Sunnyfield operated, including how Sunnyfield allocated its funding internally to ensure the appropriate contemplated supports were utilised for Melissa, Carl and Chen.

Sunnyfield will tell you during the course of this week about the changes and improvements that have been made since these events.  We will examine the changes and improvements, to understand whether and how those measures will adequately protect Melissa, Carl and Chen from violence and abuse in their own home.

We will also examine the role and responsibility of the New South Wales Ombudsman, the NDIA and the NDIS Quality and Safeguards Commission with respect to the various complaints made about the treatment of residents.  I will pause and say that we do not propose to go complaint by complaint and to analyse each complaint in detail, but what we seek to do is to have an understanding of what people should expect when they lodge complaints with these various organisations.

We will also examine what each of the New South Wales Ombudsman, NDIA and Quality and Safeguards Commission did to support the residents and discharge any regulatory function with respect to Sunnyfield.  Overall, we want to ask whether the safeguards that should have been in place worked or were they effective to prevent or respond to incidents of violence and abuse.

Commissioners, after considering the evidence, it may be open to you to make findings about Sunnyfield's failure to ensure Melissa, Carl and Chen were not protected from violence and abuse in their own home.  You may also identify further areas for inquiry that may point to systemic issues in the delivery of service supports and accommodation that can be considered in future hearings.

CHAIR:  I think, Ms Eastman, there may have been an errant "not" in one of your sentences.  I think you meant to say that it may be open to make findings about Sunnyfield's failure to ensure the residents were protected, rather than not protected.

MS EASTMAN:  I apologise, thank you, Chair.

Commissioners, you are committed to ensuring the conduct of this hearing is fair, and Sunnyfield should have the opportunity to be heard and to respond to the issues we examine, also the relevant regulatory agencies.  You will make directions at the conclusion of this hearing as to how you wish Counsel Assisting to prepare any written or oral submissions with respect to proposed findings and the opportunity for the parties with leave to respond to these findings.

The Royal Commission has received extensive documentary records in the course of the preparation for this hearing and some of these records will be discussed during the hearing.  However, the formal tendering of documents into evidence will be done  
following the conclusion of the oral presentation of the evidence, in order to permit consideration of which documents need to be tendered, any redactions that may need to be made in order to protect the identities of the residents of the house or to address any other concerns raised by the parties.  This will need to be done before the documents are released publicly.

Finally, I remind those following the proceedings that there are provisions in the Royal Commissions Act which have the clear object of protecting witnesses who give evidence before the Royal Commission.  In particular, I draw attention to section 6M of the Act, which provides:

Any person who uses, causes or inflicts any violence, punishment, damage, loss or disadvantage to any person on account of the person having appeared as a witness before the Royal Commission or given evidence before the Royal Commission or producing documents to the Royal Commission commits an indictable offence.

The maximum penalty for committing such offence is imprisonment.

If the Commission pleases.

CHAIR:  Thank you, Ms Eastman.  Arising out of Ms Eastman's opening, I have a couple of questions.  Ms Downes, do you represent the NDIS Quality and Safeguards Commission?

MS DOWNES:  Yes, Commissioner.

CHAIR:  So that is part of your appearance today for the Commonwealth, together with the NDIS QSC?

MS DOWNES:  Yes.

CHAIR:  Thank you.  Ms Furness, I understand that you announced an appearance for the New South Wales Ombudsman?

MS FURNESS:  I did, yes.

CHAIR:  According to the opening, the Ombudsman takes the view that he is not compellable as a witness before this Royal Commission.  Is that right?

MS FURNESS:  Yes, that is the view of the Ombudsman.

CHAIR:  Could you help me by explaining how that works for the purposes of this Royal Commission, in light of the provisions in the Royal Commissions Act, that is the Commonwealth Royal Commissions Act?

MS FURNESS:  The New South Wales Ombudsman takes the view that section  
35(1), which is:

The Ombudsman shall not, nor shall an officer of the Ombudsman who is not a member of the Police Force, be competent or compellable to give evidence or produce any document in any legal proceedings in respect of any information obtained by the Ombudsman or officer in the course of [his functions].

He takes the view that "legal proceedings" incorporate proceedings before this Royal Commission.

CHAIR:  What is the foundation for that view?

MS FURNESS:  His foundation is the section I have just read.

CHAIR:  That a Royal Commission is a legal proceeding for the purposes of that section?

MS FURNESS:  Yes, Chair.

CHAIR:  Is there any authority that establishes that proposition?

MS FURNESS:  It is his view, based on his construction of the legislation.

CHAIR:  I don't doubt it's his view but I am not sure that's the question I asked.

MS FURNESS:  Chair, if you wish to have a discussion with me as to the legal basis, I would want to take that on notice.  And if you wish submissions by the Ombudsman as to his view, then if that is the case, I will need to take that on notice.

CHAIR:  If you would be good enough to do that.  I'm not sure what the position might be but I rather judge from Counsel Assisting's opening that we might be invited to make a finding in relation to the Ombudsman and I'm just wondering about what role the Ombudsman is going to take in these proceedings.

Perhaps taking that on notice, you might also consider what the interaction is between a provision in state legislation, section 35 of the Ombudsman Act, and the relevant provisions of the Royal Commissions Act, which is a Commonwealth Act and, one might think, prevailed over any inconsistent state Act.  But I will leave that with you, should the issue arise later on.  Thank you.

Ms Eastman, is it appropriate to take an adjournment now?

MS EASTMAN:  Yes, if we can take an adjournment for 30 minutes.

CHAIR:  We will adjourn until 12.00 noon.

 
ADJOURNED    [11.25 AM]

RESUMED    [12.01 PM]

MS EASTMAN:  Commissioners, the first witness to be called uses the pseudonym Eliza.  There are a few corrections to Eliza's statement.  I might deal with them first, before we take Eliza's evidence, if that's convenient?

CHAIR:  Yes, by all means.

MS EASTMAN:  Commissioners, the corrections start at paragraph 39.  The date of August 2017 should be September 2017.  In that first conference, Eliza says:

I had a teleconference with the Sunnyfield CEO and the Company Secretary.

It's just the Sunnyfield company secretary.  Delete "CEO and".

CHAIR:  Yes, thank you.

MS EASTMAN:  The next correction is at paragraph 131.  You will see there is a chronology that Eliza has prepared.  For the entry that says 2015, she says:

I was granted guardianship.

That should read:

I started the application for guardianship and guardianship was granted in February 2016.

MS EASTMAN:  Eliza will now take her oath or affirmation.

CHAIR:  Thank you very much for coming to the Royal Commission to give evidence.  If you would be good enough to follow the instructions to take the oath or affirmation.

ELIZA, AFFIRMED

CHAIR: Thank you, Eliza.  Now Ms Eastman will ask you some questions.

MS EASTMAN:  You are using the pseudonym "Eliza" but you have provided your full name to the Royal Commission?

ELIZA: Yes.
 

MS EASTMAN:  You have also provided your address to the Royal Commission?

ELIZA: Yes.

MS EASTMAN:  Your occupation is working in emergency services?

ELIZA: Yes.

MS EASTMAN:  Sitting with you at the witness table today is your husband?

ELIZA: Yes.

MS EASTMAN:  Rather than give him a separate pseudonym, we will just call him Eliza's husband.

ELIZA:  Okay.

MS EASTMAN:  You have prepared a statement for the Royal Commission.  Do you have a copy of that statement with you?

ELIZA: Yes.

MS EASTMAN:  That statement was made on 29 April this year?

ELIZA: Yes.

MS EASTMAN:  The statement includes some annexures.

ELIZA: Yes.

MS EASTMAN:  Do you have a copy of those with you?

ELIZA: Yes.

MS EASTMAN:  Commissioners, the statement can be found in the hearing bundle part A, volume 1, behind tab 2.  The annexures can be found in the same volume, starting at tab 8.  They continue through to volume 2, tab 35.

Eliza, you have heard me make some corrections to your statement and you have provided those corrections earlier today.

ELIZA: Yes.

MS EASTMAN:  With those corrections, is what you say in the statement true?

ELIZA: Yes.
 

MS EASTMAN:  You are a legal guardian for your sister, who we will refer to as Melissa?

ELIZA: Yes.

MS EASTMAN:  You want to tell the Royal Commission about the circumstances resulting in Melissa receiving a notice from Sunnyfield that Sunnyfield would terminate its accommodation and support services for Melissa with effect from 5 September 2018?

ELIZA: Yes.

MS EASTMAN:  You also want to share some of Melissa's experience in supported accommodation and your observations of what you think might be systemic issues; is that right?

ELIZA: Yes.

MS EASTMAN:  So, this is about Melissa.  Can we start with Melissa?

ELIZA: Yes.

MS EASTMAN:  I can see a big smile on your face as you say that.

ELIZA: She's so funny, I really wish you guys could see her in her element because she's adorable, yes.

MS EASTMAN:  She is 23 years old.

ELIZA: Yes.

MS EASTMAN:  She is bubbly and she has a great sense of humour?  I'm going to have to ask you to say yes, rather than nod.

ELIZA: Sorry.  Yes.

MS EASTMAN:  Because we want to record it    

ELIZA: : Yes.

MS EASTMAN:      so I need you just to     you can nod but also have to answer.

ELIZA: Yes, yes.

MS EASTMAN: When you and Melissa were growing up together, you were the practical jokers of the family and you played a lot of practical jokes; is that right?
 

ELIZA: Yes.

MS EASTMAN:  Melissa can be very cheeky?

ELIZA: Yes.

MS EASTMAN:  And she makes people laugh?

ELIZA: Yes, she does.

MS EASTMAN:  She is honest?

ELIZA: Yes.

MS EASTMAN:  She's authentic?

ELIZA: Yes.

MS EASTMAN:  You know when she's happy because she beams her happiness; is that right?

ELIZA: Yes.

MS EASTMAN:  She can be very affectionate?

ELIZA: Yes.

MS EASTMAN:  She loves patting and feeding and caring for animals?

ELIZA:  Yes.

MS EASTMAN:  She shows no fear around animals?

ELIZA:  Yes, it's incredible to watch.

MS EASTMAN:  Whether this is something from you growing up together, but she loves anything from the 1990s with the ABC shows like Play School, Sesame Street and the original Wiggles; is that right?

ELIZA:  Yes, they've got to be     not the imposters, it's got to be the original, yes.  She knows.

MS EASTMAN:  People might ask, why can't Melissa be here giving evidence for herself today?  She would not manage in this environment.  That's not to silence her?

ELIZA:  No.
 

MS EASTMAN:  But this is not an environment where you think she would feel comfortable giving and speaking for herself; is that right?

ELIZA:  That's right, yes.

MS EASTMAN:  But you still wanted to make sure that the Royal Commission got a sense of her, and there's some --- a very short video that you want to show the Royal Commission, and this is Melissa speaking, and we also have some photographs.  So can we start by playing a very short video and this is the connection with Sesame Street; is that right?

ELIZA:   Yes.

[VIDEORECORDING PLAYED]

[VIDEORECORDING ENDED]

ELIZA:  That's my mother in the background and that's Melissa trying to get a rise out of her, like she usually does.

MS EASTMAN:  There are some photographs of Melissa as well that you have chosen and you feel this will give the Royal Commission and people following the Royal Commission a little bit of a sense of who she is?  We will put some of those photographs up.  If you want to explain the photographs or say something about Melissa as they come up, feel free to do so.

ELIZA:  Yes.  So this is Melissa.  She loves feeding animals and if there wasn't a fence there, she'd get right up in there.  Yeah, she just has no fear, and the animals sense it too.  It's amazing.  Amazing.  She loves them.  Going for a walk, loves to feed the ducks.

MS EASTMAN:  She has a few to chase down there.

ELIZA:  She does.  She does.  It's funny, when we used to do this as kids, you would give her some bread.  "All right, Melissa, this is stale bread for the ducks, right?"  So she will go, "One for the duck and one for me."  We're like, "No, no, Melissa, it's stale, it's stale."  She's like, "It's stale, for the ducks."  Then you turn around for a second and you come back and she's got her cheeks full like a little chipmunk, trying to get the bread in.  So, yes, she loves doing that.

MS EASTMAN:  I think there's one more.

ELIZA:  Yes.  That's not actually her bike but, yeah, she likes riding around on the  
bike.

MS EASTMAN:  I want to ask you now about Melissa's disability and how her disability affects her day to day life.  When she was born, she was diagnosed with Prader Willi syndrome.  Do you want to explain     I mentioned that in the opening, but do you want to explain to the Commissioners what the nature of the condition is and what it means for Melissa in terms of her day to day life?

ELIZA:  Sure.  As you said earlier, it's a chromosomal condition, it affects multiple body systems.  For her, it's resulted in intellectual disability and impaired     physical impairment.  Not everyone with Prader Willi has an intellectual    

MS EASTMAN:  I just have to jump in and I have to    

ELIZA: Slow down?

MS EASTMAN:      ask this as well, but can we slow down so the interpreters can keep up with us.

ELIZA:  Yes.  So, as you mentioned before, the most notable thing about Prader Willi is that insatiable desire to eat.  It doesn't matter if the food is off or spoilt or not even food, she will consume it, to fulfil that sense within her.

MS EASTMAN:  Is that like taking the stale bread for the ducks?  She wouldn't make a distinction between stale bread and fresh bread?

ELIZA: No, because she's    

MS EASTMAN:  It's food.

ELIZA:  Yes, it's food, and she's constantly hungry, all the time.  So it requires a lot of environmental and behavioural management control to enable her to live a life where that's not the predominant feeling.

So along with that though, I'll mention, we're not entirely sure that she experiences disgust either because we have seen her do things like she once got into the stock powder and before you could go "No", she's there with a spoon and you could see it on her face.  It was like     you can imagine eating a spoonful of salt, it's not nice, but she was determined to charge through it.  Same with flour, she's tried doing that too.  She just     yes, she needs a lot of protection from that because she can't help it.

MS EASTMAN:  What about any impact on her behaviour?  She also has a diagnosis of autism and PTSD?

ELIZA:  Yes.

MS EASTMAN:  How does that impact her in terms of her behaviour?
 

ELIZA:  Well, it's so     they are all intermingled, in the sense that we've got autism, we've got global developmental delay, we've got these obsessive behaviours, the trauma of obviously living in a home environment where there was domestic violence and conflict and multiple crisis situations, and then entering into group home life, which by its very nature is traumatic, you have a lot of people come in and out of her life.  She has only got her mother, myself and her other sister that are around for her.

In terms of how it manifests in her behaviour, because she's got difficulties with her communication, she can injure herself.  And just to finish the note on the communication, her interpretive ability to understand is a lot better than her ability to express herself.  So often she has learnt, whilst in care, to display some behaviours that help her get what she wants or get a message across.  So these can include head banging, hitting herself, the skin picking is a feature of Prader Willi.

She doesn't sleep well overnight.  That is also a feature of Prader Willi, in that her hormone centres are underdeveloped so she is short, she is small, she never received growth hormone.  She is also osteoporotic from that and she doesn't receive those hormones overnight as well that help her remain asleep, so she's up often and that plays into her self injurious behaviour as well.

I touched on head banging, hitting herself, often it's very loud when she is dysregulated.  So that can be in itself very confronting because she will scream and cry and she     you can see it all over her face, like, she is distressed.  And when you're --- if you were to film it, and you were to watch it, with the sound down, it's a different experience to when you are living it and you are facing it and she's doing it right in front of you.

And, you know, there's other associated behaviours in terms of stripping, fecal smearing, she is incontinent so she wears a pad.  I say all this to sort of highlight the challenges of her condition as it relates to what it means to look after her.

MS EASTMAN:  Is it the case that, as you have said in your statement, it takes somebody who is suitably skilled, who knows her, who takes the time to understand her, to be able to communicate with her properly?

ELIZA:  Yes.  It takes a long time.  Even for professionals, it can take up to a year for them to really understand what she's about and what she says, to be across her history as well, which is really complicated.  Yes, it takes them a long time.

MS EASTMAN:  I want to move to her experiences in residential care.  Can I start with when you had to abandon her and I know that's a very difficult time in the family's life.  So you had finished high school and you had left home?

ELIZA:  Yes.

 
MS EASTMAN:  Melissa was living with your mother?

ELIZA:  Yes.

MS EASTMAN:  Your Mum became overwhelmed and you could see a crisis developing?

ELIZA:  Yes.

MS EASTMAN:  You realised at that time that Melissa couldn't continue to live with your Mum?

ELIZA:  Yes.

MS EASTMAN:  You could only get Melissa into full time residential care if you, as you have said in your statement, legally abandoned her at a respite service.

ELIZA:  Yes.

MS EASTMAN:  You did this in 2011.  What happened then?

ELIZA:  At the time, Mum was receiving negligible respite services from a temporary respite accommodation house near her, and Mum at the same time was     she had some health conditions that were developing.  Melissa also had some really traumatic experiences at her school, for two years prior, leading up to this crisis situation.

MS EASTMAN:  That included being kept in a cage, did it?

ELIZA:  Yes.  Just to put a bit of background to the family dynamic, her dad is not in the picture.  We have separate fathers.  So I am basically the mother of my household since I was about 14.

MS EASTMAN:  That's a pretty big burden to have.

ELIZA:   It is, it's huge, and not many people understand.  I think at the time when we were trying to figure out a safe situation for Melissa and Mum, we went to FACS, like, "This is serious.  You guys need to give us some help, because we are talking life and death here."  They said, like, "Maybe we can get you a couple more hours on a Sunday."  I'm like, "You guys don't understand.  Mum is here every day, every day."  And I feel bad saying this because I'm trying to be really respectful of Melissa's dignity, but it was     because she doesn't sleep, we needed to have locks everywhere, and locks on her room because we have had situations where she will     she has climbed out windows and fallen 2 metres and been found roaming the yard naked at 4 o'clock in the morning.  So, poor Mum was trying to deal with that and then she wakes up and finds that because she was left alone and she was bored in this room, she was sick of her toys, she would pull apart the contents of her nappy  
and smear it, and Mum was     there's only so many times that you can scrub you know what out of the carpet before it ---

MS EASTMAN:  So this is the sort of crisis that the family was seeking ---

ELIZA:  Yes.

MS EASTMAN:  So legally abandoning basically meant leaving Melissa at the respite service; is that right?

ELIZA:  Yes.  Basically we were told there's no voluntary out of home care, so you have to legally not tell the respite house, "I'm sorry, but we're not picking her up because it's not safe for her to come home."  But we cried many tears over it because that doesn't take away from how much we love her.

MS EASTMAN:  You love her very much?

ELIZA:  And so does Mum.

MS EASTMAN:  You have held this trauma of having to make that decision.

ELIZA:  Yep.

MS EASTMAN:  Which meant Melissa left the family and then went to live in residential disability care.

ELIZA:  Yes.

MS EASTMAN:  And that's where she's been for almost 10 years; is that right?

ELIZA:  Yes.  And you asked me a question before, but I don't feel I completely answered it, but I think it is relevant here.  When she was at her school, so leading up to this time, for the two years it was, like, brewing before this crisis, the teachers at her special school said to me during her parent/teacher interview that she is psychotic, she needs to be on more meds.  Being a young person myself, no idea, I went, okay, I'll take her to the doctor.  The doctor said, no, it sounds like a behavioural management issue for the school, refer back.  So we referred back.  They insisted, no, she needs to be sedated.  Okay.  When this has happened previously, you guys maybe took some footage.  Could you take some footage of what you are talking about and we will take it to the paediatrician.  We offered Aspect to come in.  And they denied that, because they didn't want to.  I think the excuse was, "We don't want to impact on other people's privacy."  I said, "I'm not asking about other people, I'm asking about her, and only the doctor is going to see it, what are you concerned about?"  "No."  Stonewalled.  Not going to happen.  Then we said, "What about Aspect come in?"  "No, no, no."  The school wanted to do it themselves.  It was this stonewall of, like, you just couldn't do anything.

 
Then the behaviours started ramping up at home and at the respite and we went something is going on here.  Then one day a DVD came home from this school and it was a 20 minute montage of her being kept in a cage.  And, like, we're talking     so someone who is head banging, kept in a bag room with the bag hooks at head and eye level, and it didn't show any clinical --- there was no clinical benefit to be drawn from this footage.  There was no antecedent, there was no consequence, it was just her behaviour.  And it highlighted what this school and these particular teachers did to her when she was struggling, when she was finding it hard to communicate.  And they kept her in caged areas between a basketball court and a shed where they kept chickens, and this footage of her, this beautiful little girl, screaming while she's watching all the other kids play cricket.

MS EASTMAN:  These experiences early in Melissa's life and development mean that you are ferociously protective of her.

ELIZA:  100 per cent I am, because I can't --- I don't want to watch her go through that again.  And I apologise to everyone here for my emotion.

MS EASTMAN:  It's okay.

ELIZA:  Because so much of this     and what I've experienced with group homes, because, you know, she's been in group homes for 10 years.

MS EASTMAN:  I want to come and ask you some of those questions.  But for you, coming to the Royal Commission to give evidence has been very difficult but you want to speak and be Melissa's voice so the Royal Commissioners can understand some of the issues that have arisen; is that right?

ELIZA:  Yes.

MS EASTMAN:  You are probably telling people in this room and following the broadcast things about your family and yourself    

ELIZA:  Yes.

MS EASTMAN:      and why you are so protective, that people may not know about you; is that right?

ELIZA:  Yes, yes.

MS EASTMAN:  Because you are private, and you want to be professional and thorough in discharging your duties as Melissa's guardian; is that right?

ELIZA:  Yes.

MS EASTMAN:  Preparing for this hearing meant you have had to read some material and also reflect on these past events.
 

ELIZA:  Yes.

MS EASTMAN:  And they churn up, don't they?

ELIZA:  Oh, yes.  Like, it is a constant state of anxiety, worrying about her, because there are limits to what I can physically do for her and it's been a real tough road of having to accept     having to accept a lot of things that I wish were different for her.

MS EASTMAN:  One of the real concerns that you have, before we start looking at the relationship with Sunnyfield, is this precarious situation that Melissa is presently in, and you do not want your speaking to the Royal Commission to result in any harm or disadvantage to Melissa at all?

ELIZA:  Yes.

MS EASTMAN:  That's a real fear    

ELIZA:  Oh, yeah.

MS EASTMAN:      about giving evidence, isn't it?

ELIZA: Yes, because I've --- I've felt like this before when I want to the Ombo, and cut me off if I get off track, but I said to them, if I complain to you, they are going to retaliate, and the Ombo said, no, they can't, it's in the legislation, it's illegal, they are not allowed to do it.  Then after everything that happened, I said, okay, well, are you guys going to step in now?  They said, well, it's not clear to us that what they have done is retaliation.  I said, I'm sorry, are they supposed to give you a letter that says, we are doing this in retaliation?

MS EASTMAN:  Is it fair to say that even with the Royal Commission, you haven't got the highest trust in government agencies?

ELIZA:  (Laughs).

MS EASTMAN:  Would that be a fair comment?

ELIZA:  Oh, fair, yes.  I think the Ombudsman has made an example of that in not being here today.

MS EASTMAN:  Let's turn to your statement.  You have a copy of your statement there and we might come back to that.

CHAIR:  Eliza, can I just interrupt and say, if you need a break at any time, tell us and we will have a break.

ELIZA:  Thank you very much.
 

MS EASTMAN:  Commissioners, I thought we might go to 1 o'clock, if Eliza can bear with us for the next 33 minutes.  Of course, if you need a break before, we can.

Around early 2016, and I'm at paragraph 15 of your statement, Melissa and some other residents moved into a purpose built house in Western Sydney and all of the residents of this house have high support needs.  You go on to refer to two of them in your statement, Carl and Chen.  The three of them live together now at the house; is that right?

ELIZA:  Yes.

MS EASTMAN:  When the NDIS was introduced, you and the other families got together and decided that your family members wanted to exercise choice and control.

ELIZA:  Yes.

MS EASTMAN:  And they wanted to consider a new service provider for the house; is that right?

ELIZA:  Yes.

MS EASTMAN:  With the arrival of the NDIS in New South Wales, Melissa had an NDIS plan, and that included funding for support coordination, core supports, transport, assistive technology, as well as various allied health professionals, including behavioural intervention support.

ELIZA:  Yes.

MS EASTMAN:  Is that right?

ELIZA:  Yes.

MS EASTMAN:  You have provided a copy of the plan in the material that you have given to the Royal Commission.  The plan can be found at tab 16 in volume A.  I wont take you to that document but the plan sets out what Melissa's goals are in terms of living an independent life.

ELIZA:  Yes.

MS EASTMAN:  The plan makes it fairly clear that there are two important goals for her: one is connection with her family and the opportunity to develop independence so she can engage with the family; is that right?

ELIZA:  Yes.

 
MS EASTMAN:  The second is participation in the community.  So one of the objects, and I'm paraphrasing here, is that she develops skills that will enable her to have community participation to the best of her ability?

ELIZA: Yes.

MS EASTMAN:  The idea behind setting goals is that the supports that are funded for Melissa will help her reach those goals?

ELIZA:  Yes.

MS EASTMAN:  So the supports are more than just simply providing the bricks and mortar and somebody to make your breakfast, lunch and dinner, it's really about assisting a person to live a life with dignity?

ELIZA:  Yes.

MS EASTMAN:  When the families got together and were looking at prospective service providers, Sunnyfield became the service provider that you thought at the time would probably be best suited for the residents in the house?

ELIZA:  Yes.

MS EASTMAN:  At that time you were not just looking for Melissa but the families together were saying, for the then four residents of the house, what services did they need collectively and individually; is that right?

ELIZA:  Yes.

MS EASTMAN:  Towards the latter part of 2016, the families had some engagement with Sunnyfield, you got some brochures and documents from Sunnyfield about their services and how they operated?

ELIZA:  Yes.

MS EASTMAN:  You are a person, if you are given a document, you will read it; is that right?

ELIZA:  Yes.

MS EASTMAN:  If you have a question about a document, you will ask the question?

ELIZA:  Oh, yes.

MS EASTMAN:  When you got the documents from Sunnyfield, do you remember reading the Shared Living Operations Manual?
 

ELIZA: Yes.

MS EASTMAN:  You read that, what cover to cover?

ELIZA:  Cover to cover.

MS EASTMAN:  You wrote all your notes on it?

ELIZA:  Sure did.

MS EASTMAN:  You worked out what questions you wanted to ask?

ELIZA:  Yes.

MS EASTMAN:  At that stage you asked lots of questions of the business development manager and the client engagement manager?  I'm looking at paragraph 20 of your statement.

ELIZA:  Yes.

MS EASTMAN:  They were receptive, in the sense that they answered your queries and concerns?

ELIZA:  Yes.

MS EASTMAN:  So no one ignored you at that stage?

ELIZA:  No.  It was a very rosy picture, it was exactly what we were looking for.

MS EASTMAN:  You believed that Sunnyfield were open to finding creative solutions to particular issues?

ELIZA:  Yes.

MS EASTMAN:  You thought that this would be an organisation that would meet Melissa's very specific needs?

ELIZA: Yes.

MS EASTMAN:  You were also looking for a, sort of, fresh start, weren't you, in a way of saying Melissa has lived with this trauma and you wanted, through the NDIS, to be a fresh start for her?

ELIZA:  Yes.  And we came to Sunnyfield with a very clear view about where we had been with the previous service.  I was intent on ensuring that the issues that we had had with the previous service provider were not repeated again.
 

MS EASTMAN:  Sunnyfield, as a result of entering into some agreements     and I want to take you to some of those in a moment     took over operation of the house on 1 May 2017?

ELIZA: Yes.

MS EASTMAN:  Ms Cuddihy in her statement says that it was a pretty big day.  The previous service providers were out the door, they didn't leave much by way of files or information, she says in her statement the house was in a lot of disrepair.  The Commissioners will hear from Sunnyfield about the condition of the house and some of the difficulties that Sunnyfield experienced in taking over the house.

ELIZA:  Yes.

MS EASTMAN:  But I want to ask you, from your perspective, about your expectations as to what was going to happen.

ELIZA:  All right.

MS EASTMAN:  Sunnyfield sent you an email.  If we have those volumes there, go to tab 13.  You received from Sunnyfield a copy of this service support agreement?

ELIZA:  Yes.

MS EASTMAN:  Commissioners, you will have a copy of this.  This came to you by email; is that right?

ELIZA:  Yes.

MS EASTMAN:  You understood that this was going to be an agreement that set out what Sunnyfield would deliver by way of services?

ELIZA:  Yes.

MS EASTMAN:  And what your responsibilities would be and also Melissa's responsibilities; is that right?

ELIZA:  Yes.

MS EASTMAN:  I take it that you read this document carefully?

ELIZA:  Yes.

MS EASTMAN:  The Commissioners will see in the material that you had some changes you wanted to make to the document.

 
ELIZA:  Yes.

MS EASTMAN:  I will come to that in a moment.  Let's just have a look at the document first.

ELIZA:  Yes.

MS EASTMAN:  I want you to turn to the page which at the top of the page has the last four numbers .0265.  It's page 3 of 4 of this document.  It has in the middle of the page a number 6, "Responsibilities of Sunnyfield".

CHAIR:  Ms Eastman, do you want this brought up on the screen?

MS EASTMAN:  No, I don't, Chair.  I think it may be easier not to put this up on the screen.  What I will do is make sure I have identified those parts of the document for people following.

CHAIR:  Thank you.

MS EASTMAN:  Paragraph 6 sets out what Sunnyfield agrees to do.

ELIZA:  Yes.

MS EASTMAN:  There are a number of matters that are set out there.  The first one is to treat the participant, that's Melissa, and the participant's representative, that's you, with courtesy and respect and communicate openly and honestly in a timely manner.  When you read this document, was that an important matter for you?

ELIZA:  Yes, that's why I tried to get them specifically to tell me, what do you mean by timely manner?  What do you mean by that?

MS EASTMAN:  That was one of the issues you wanted to clarify?

ELIZA:  Yes.

MS EASTMAN:  The second is that Sunnyfield agrees to consult with Melissa and with you, where practical, on decisions about how supports are provided and, once agreed, provide supports that meet Melissa's needs and Melissa's preferred times.  Was that an important matter for you?

ELIZA:  Hell, yeah.  Yes, it was.

MS EASTMAN:  I won't go through all of them but there's a range of matters as to what Sunnyfield agreed to do in the provision of services.

ELIZA:  Yes.

 
MS EASTMAN:  Is it fair to say, looking at the whole of paragraph 6, you were particularly interested in what Sunnyfield would do but also how it would deliver those services?

ELIZA:  That's right.

MS EASTMAN:  One of the issues for you, in reading this document, was because you live in a regional town away from Sydney, you had to find a way of making sure that you were aware of what was going on, that you were involved in the decision making, but that you could trust those entrusted with the day to day care of Melissa    

ELIZA:  Yes.

MS EASTMAN:      that things would work?

ELIZA:  Yes, it was partly that and it's partly also setting my expectations from the outset because, you know, I don't expect someone to work to my timeline if it's not practical for them to do so.  So I will invite them, you tell me what I can expect.  And these documents outlined what I was expecting, and I tried to tie these general principles in with the specifics, how to specifics that were illustrated to me in the other documents provided, such as the operations manual, because that laid out specific ways, for example, that they would sanitise objects, that they would prepare meals, that they would     basically, how they would     like you said, how they would actually do this in practice.  The reason why I tried to get it in an agreement was so that there could be no arguments of, no, we can't do that, no, our service doesn't provide that, because we had it, again, agreed in writing beforehand to minimise arguments.  That was my goal.

MS EASTMAN:  You would have seen in this agreement at paragraph 7, at the bottom of the page and over the page that, Melissa or you would agree to a number of things.  That is, to treat Sunnyfield with courtesy and respect.

ELIZA:  Yes.

MS EASTMAN:  That you would tell Sunnyfield about how you would wish the supports to be delivered and to meet Melissa's needs, including any limits to funding that may be available?

ELIZA: Yes

MS EASTMAN:  You understood your responsibilities in that regard?

ELIZA:  Absolutely.

MS EASTMAN:  You would talk to Sunnyfield if you or Melissa had any concerns about the supports being provided?
 

ELIZA:  Yes.

MS EASTMAN:  Did that give you some comfort that your obligation under this agreement was to talk to Sunnyfield about any concerns?

ELIZA:  Definitely.

MS EASTMAN:   There were a range of other things that were required.  Now, both Sunnyfield and you would have to give notice if Melissa wanted to end the agreement.  Paragraph 11, if we turn over to the next page, sets out ending the agreement.

ELIZA:  Yes.

MS EASTMAN:  This provided that:

Either Party may end this agreement by giving at least 3 months' notice in writing at any time, or by giving 14 days' notice in writing if the other Party seriously breaches this agreement.

Did you read that clause at the time you signed this agreement?

ELIZA:  I did, but I didn't understand the gravity of the part about the supports being able to be withdrawn for no reason, because it was unfathomable to me that anyone would even do that.

MS EASTMAN:  Sorry to interrupt.  When you say for no reason, are you saying that reading paragraph 11, it doesn't set out the grounds or the reasons why an agreement might be ended on three months' notice?

ELIZA:  Yes.  Yes, I was not aware because, again, I couldn't imagine anyone making someone like that, like Melissa, homeless.  I just     it never crossed my mind that someone would do that.

MS EASTMAN:  We will come to what happened on 4 June 2018 shortly.

ELIZA:  Yes.

MS EASTMAN:  Just back in 2016, early part of 2017, when you are starting to have     you are starting out with Sunnyfield.

ELIZA:  Yes.

MS EASTMAN:  You read this.

ELIZA:  Yes.
 

MS EASTMAN:  But now you realise it didn't set out any reasons for why the termination of the agreement would be made; is that right?

ELIZA:  That's right.  And the other thing I think is relevant here --- and, again, cut me off if you think I'm going off track    

MS EASTMAN:  I will!

ELIZA:      we were given 2.5 days to sign this.  It was, if you don't sign it, there will be no one in the house to look after these guys.  I didn't have time to get a lawyer, or the IDRS, to go and explain everything to me.  Like, I'm just a pleb, I have got no special training in disability services.  So I raised my concerns at the time and in writing to them, that hey, this is under duress here, in signing this agreement, because the other factor was     so when we were making these inquiries together with all the families, we were doing it covertly, behind the other provider's back, because we didn't want them to retaliate and we wanted to be sure before we made the announcement.  And then because of, I think, the timing of their NDIS roll out, FACS basically said, you need to make a decision now, and we weren't entirely ready.  We hadn't had any of this, we were still in those formative discussions, and so we made a leap of faith at that time.  And I know personally, I think I can refer to him by name     let me just check.  Yes.  So, Dr Mark Clayton, he was what I was pinning my hopes on.  I had had several conversations with him and I had some     a lot of trust in him from a mutual friend, and so I had confidence that this     all this would be ironed out.

MS EASTMAN:  I am going to interrupt you there.  Just to follow this through, if you turn in the bundle of materials that you have there in that folder, behind tab 19, if you have a look at the second page, the subject matter of this email is said to be your feedback and concerns re Melissa.  I'm using the pseudonyms there.  If you look at that email, what somebody has set out is a summary of your suggested changes and concerns?

ELIZA:  Yes.

MS EASTMAN:  And marked up documents that you had prepared.  What is on this page are the proposed amendments to the Service Support Agreement, which we have just been looking at.

ELIZA:  Yes.

MS EASTMAN:  And another agreement which I will briefly take you to, which the Shared Residency Agreement.

ELIZA:  Yes.

MS EASTMAN:  These were the amendments that you prepared, I think as you say,  
with very short notice, that you wanted to see changed.  If you go to the first page of that email, there is an email from someone at Sunnyfield to you on 12 April 2017 at 9.24 am.  Does that help you identify?

ELIZA:  Yes.

MS EASTMAN:  You have made a reference to Dr Mark Clayton and he is part of the recipients of the email; is that right?

ELIZA:  Yes.

MS EASTMAN:  You will see that the email from Sunnyfield says to you --- and, Commissioners, I'll read this out because I won't put it up on the screen:

Eliza, 

First and foremost, Sunnyfield will always put the safety and wellbeing of clients above all else.  As we are taking over an existing service and doing so in a very short timeframe, it will take a bit to get all the Sunnyfield policies and procedures in place, however client safety and wellbeing will not be compromised during this time.  Sunnyfield operates shared living homes under the guidance of our Sunnyfield Group Home manual, and these practices will be put in place at [the house].

ELIZA:  Yes.

MS EASTMAN:  New paragraph:

We cannot amend the Service Agreements as these are legal documents that are standardised to ensure consistency in service delivery and expectations across Sunnyfield, and in compliance with the NDIA's terms of business.  That said, Sunnyfield does understand Eliza's issues and we are open to discussing possible solutions to them.  I would suggest that our priority should be to get staff into the house and get the service running.  I am sure that Mark … 

That is a reference to Dr Clayton:

… would welcome Eliza and the other families to meet the staff and to see what we are setting up.  We will separately work with Eliza over the next 8 weeks to ensure that we resolve all of her concerns.

It is suggested that the email be forwarded to you.  So you did receive that email; is that right?

ELIZA:  Yes.

MS EASTMAN:  Later that morning.  It looks like it was sent about 14 minutes or so  
after the email was circulated internally.

ELIZA:  Yes.

MS EASTMAN:  Did you understand by that response that all of the proposed changes that you wanted to see in the Service Support Agreement and the Shared Residency Agreement couldn't be made because they are legal documents with standardised terms?  Had you ever heard that before?

ELIZA:  In my discussions with the Ombudsman then we discussed that more, because my understanding was in line with what the Ombudsman concluded on that issue, was that isn't that the whole point of the NDIS?  Isn't that the whole point that we have these agreements, so we can set out expectations at the very beginning?  You know, I     it was a complete     it was a shock to receive it because it was not as they advertised to me.  It was not     the conversations that I had had, and I had several, with the client engagement manager, leading up to it, indicated that everything I had spoken about and asked on Melissa's behalf was not a problem.  "Yeah, we can do that, yeah, no worries."

MS EASTMAN:  Can I take you back to the document behind tab 13.  We were on a page that had paragraph 11, which says page 5 of 4.  I'm not quite sure how that works.  If you go over to pages 6 of 4 and 7 of 4, you signed the agreements on behalf of Melissa and yourself on the same day you got that email; is that right?

ELIZA:  Yes.

MS EASTMAN:  The final clause I want to take you to in this agreement is paragraph 13, which is called "Feedback complaints and disputes".  It says:

Sunnyfield welcomes, values, and responds to all feedback.  If [Eliza] or [Melissa] wishes to give Sunnyfield feedback, or make a complaint, about the provision of supports, they can talk to the Service Coordinator …

Who is referred to in an earlier clause:

… or can provide feedback to the following email address: feedback@sunnyfield.org.au.

ELIZA:  Yes.

MS EASTMAN:  You were also given an option that if you didn't want to talk to Sunnyfield or you were not satisfied with the response, you could contact Stopline, Sunnyfield's independent whistleblower service, or the NDIA, and telephone numbers were provided.  So that's the first agreement.  Can I just ---

CHAIR:  Sorry, before you leave that, may I ask you another question about that agreement.  If you wouldn't mind going to page 4 of 4 of the document you have in  
front of you, you will see subparagraph (j) says that the participant or the participant's representative, which is of course Melissa or you, must:

ensure all Sunnyfield invoices are paid as and when they fall due and that adequate funds are available in each bank account from which any direct debit payment is due under this agreement.

What was your understanding as to how payment would be made for the services that Melissa was to receive?

ELIZA:  Yeah, so there was a couple of things.  In addition to being her guardian, I'm also her financial manager, so I'm accountable to the New South Wales Trustee and Guardian to complete an audit every year.  And when the NDIS rolled out, there was     sorry, I'll slow down.  Sorry.  When the NDIS rolled out, there was a lot of confusion around the division of payments and categories that seemed a little bit arbitrary to me at the time, to be honest.  But one of the things that concerned me with the previous service provider was that there were a lot of discrepancies in the way that services were being charged.

By way of example, when I first became Melissa's guardian, I was actually invited by the school to help her find a day program because they warned me that there wouldn't be many services available to her, and she is rapidly proposing what they called the post school cliff, where she was really well supported in that second school and then after that was due to finish, it     like, there would be nothing.

So I realised when I was making extensive inquiries at the time that Melissa did not have a behaviour support plan.  When I looked at the agreements my mum had signed, I noticed that there was a lot that the previous provider should have been doing, including having a behavioural support practitioner there.  So there was that and there was also a lot of ambiguity over how much support she would have.

So this, sort of, all happened around the same time and I'm just explaining it because I did get involved a lot in the finances because whenever an issue arose with her behaviour, you could see that the staff were struggling because they just didn't have the people power to help her and to manage her.

CHAIR:  You are talking about the previous service provider?

ELIZA:  Yes.  So I got very interested in who's being paid what because I could see that, for all the big blocks of money that people were being given, there wasn't the services actually being given to her.  So at the time that I did these agreements with Sunnyfield, I was concerned about     I wanted to make sure that what they said they were providing, they were going to provide and actually provide.

There were other instances around Melissa had been overcharged to the tune of thousands of dollars and no one audited it, no one picked up on it.  I saw it and went, hang on a minute, these dates don't line up.  So by me     so there was a couple of  
different categories.  You've got the payment that comes out of her Disability Support Pension, so that goes for, basically, your board and lodgings.

CHAIR:  To Sunnyfield we are talking about?

ELIZA:  Correct.  I think it's 75 per cent, whatever is in my statement.  It's a significant portion that goes all to Sunnyfield and that's to cover food, the house, all the utilities.  So that's that part.  And then the NDIS had several other categories.  So there was a lot of confusion at the start because even the Trustee and Guardian didn't know how financial managers were supposed to set up their accounts in order to be financially accountable.  So I ended up having to open a second bank account to keep the NDIS payments separate, so I could keep track of where things were going.

The other reason why I chose to get involved in the finances, particularly where it related to staff support, so community engagement, so that means the staff support between the hours of 9.00 to 3.00, Monday to Friday, clinical involvement, was to have that choice and control to be able to     if we found someone or if we identified a need, so let's say Melissa's harness was broken and needed to be replaced asap, I could jump on it and get it done for her as soon as possible, rather than wait several weeks or months because, let me tell you     well, you probably already know     it can take up to three months to get the ball rolling on something.  So I wanted to have that flexibility to be able to, if we found a day program, bang, I could make it happen straight away.

The other thing was to keep an eye on     if they are charging for one to one support or two to one support, to cross reference that with what was being reported to me on the ground.  So there was a lot of concern around money because at the end of the day this is a business or it's being run as a private business.

CHAIR:  But the sources of funding that you were using were from the NDIS?

ELIZA:  Yes.

CHAIR:  That was the source of the funding to be paid to Sunnyfield; is that right?

ELIZA:  Yes.

MS EASTMAN:  Can I jump in there.  If you still have the documents behind tab 13 and if you go to page 10 of 4, schedule 2, which is described as "NDIS Supports".

ELIZA:  This one?

MS EASTMAN:  We are behind tab 13.  We are still in the agreement that you signed.

ELIZA:  Yes.

 
CHAIR:  The last three numbers at the top of the page are 272.

MS EASTMAN:  Right at the top of the page on the right hand corner.  It is schedule 2, "NDIS Supports".  Have you got that?

ELIZA:  Yes.

MS EASTMAN:  In item 1 there's a breakdown of the supports to be provided.

ELIZA:  Yes.

MS EASTMAN:  There are various numbers.  So assistance with daily life.

ELIZA:  Yes.

MS EASTMAN:  Transport.  Assistance with social and community participation.

ELIZA:  Yes.

MS EASTMAN:  And all of those have a figure.

ELIZA:  Yes.

MS EASTMAN:  Then there's home modifications, Specialist Disability Accommodation or SDA, and that's to be confirmed.  So the amounts that are in there, that totalled $377,773.66, plus the SDA.  I'm not sure if that adding up deletes the $18,000 for improved relationships.  So we would then have to take off the $18,000.

ELIZA:  Yes.

MS EASTMAN:  Yes.  In terms of the questions the Chair asked you about sources of funding, that's one source in terms of NDIS funding?

ELIZA:  Yes.

MS EASTMAN:  Step 1.  Step 2 is the document behind tab 14, in the same bundle.  If you turn to page 11 of 12, and using the top numbers, it's .0290, there is schedule 3, "Direct Debit Authorisation".

ELIZA:  Yes.

MS EASTMAN:  That's one of the bank accounts that you had for Melissa?

ELIZA:  Yes.

MS EASTMAN:  That sets out a direct debit system to Sunnyfield for rental fee and  
home service fee.  Do you see that?

ELIZA: Yes.

MS EASTMAN:  That $562.95 comes from Melissa's Disability Support Pension; is that right?

ELIZA:  Yes.

MS EASTMAN:  While we are in the shared living residency agreement, so this is the first page behind tab 14, this is the other agreement that you signed.  That set out Sunnyfield's obligations in relation to the provision of home services, that's meals and utilities.  If you look at page 3 of 12, that sets out Sunnyfield's obligations to provide Melissa with three meals a day, et cetera.

ELIZA:  Yes.

MS EASTMAN:  That sets out the arrangements at paragraph 4 on the payment of fees.

ELIZA:  Yes.

MS EASTMAN:  At paragraph 5 it sets out responsibilities of Melissa or you, and that's the things that you had to provide for Melissa in the house.  So you are responsible to provide all furniture, bed, clothing, linen for resident's bedroom and a few other things.  These are, again, terms that you wanted to negotiate and get some clarity about; is that right?

ELIZA:  Yes.  I'm just a little bit confused.  Just one second, sorry.

MS EASTMAN:  I'm going a bit too quickly.  Take your time.

ELIZA:  No, no, no.  I just want to cross reference this, because I know there was a time, because it was a point of contention, around the direct debit.  There was a time where I insisted on being provided with the invoices first, so I can ensure that services were delivered before they were paid.  I always paid them on time and I insisted on email, because our mail service is not reliable and I wanted to make sure that there was an easily identifiable record of when I was being provided with important documentation like this, because an accusation was levelled that I didn't pay specific invoices, which is completely untrue.  So it was much later that I sort of had seen how Sunnyfield's billing department had operated, long enough to sort of have the trust that they would --- their system would just take care of it and I didn't need to be all over it.  But there was also some confusion again at the time because no one really knew how to manage the NDIS.  The transport funding gets sucked up through that invoice.

So it was a real --- I had to take from one account a little bit here, a little bit there, to  
pay the one invoice.  I have since worked out a way to have it automatic, so I don't need to be manually handling it all the time, and then I just review it come the end of the year and I'll check that they line up with the dates.

Because I remember crossing out at one point and I thought, I might not do that, because again, I've been in situations where --- even with Sunnyfield, when I was keeping an eye on all the money, because now it's changed and I'm preparing to go back to work full time and I'm not going to have the time to do all this anyway, and we have gotten to know each other a bit and it's the least of my concerns.  So I'm happy to let it go because I go, look, on the balance of things, there's not much I can really impact for Melissa here, so it's not a hill to die on, so let it go.

But I have picked up where they have undercharged or overcharged and the rough amount was about $5,000.

MS EASTMAN:  Commissioners, I'm conscious of the time.  What we might do, if that's convenient, is to break now.  I have a few more questions about this agreement and the quote for services.  Then we will turn to some of the events leading to Melissa's --- in effect eviction notice.  Would that be a convenient time to adjourn?

CHAIR: We will take a break now for an hour for lunch and resume at 2 o'clock, if that's okay.

ELIZA:  Yes.

CHAIR:  That's when we will start again.  Thank you very much.  All right, we will adjourn.

ADJOURNED    [1.03 PM]

RESUMED    [1.59 PM]

MS EASTMAN:  Eliza, before lunch, we were on the agreement described as Shared Living Residency Agreement, at tab 14.

ELIZA:  Yes.

MS EASTMAN:  Can I take you back to that document?

ELIZA:  Yes.  We had covered the responsibilities of the resident or the resident's representative, that's Melissa and you.  I want to ask you about paragraph 6.  It starts at the bottom of the page, and then on the top of the page, that Melissa and you acknowledge that Sunnyfield in its capacity as accommodation provider may require that there be a single service support provider engaged by all residents of the house  
to provide them with shared living supports.

ELIZA:  Yes.

MS EASTMAN:  So Melissa and you acknowledge that this service support provider may also be Sunnyfield, subject to Sunnyfield complying with any requirements of the NDIA in relation to separation of functions and management of conflicts of interest as between accommodation providers and service support providers.  Did you understand what that meant?

ELIZA:  I feel like there's two parts to this.  One is that they may require there to be a single service support provider engaged by all residents in the house in order to do the job.  In other words, you can't have two companies providing support.

MS EASTMAN:  Pausing there, say, for example, you identified somebody to provide the particular supports for Melissa and you said, "This is a really good provider", and Carl's parents said, "Actually, we've got a different company and we think that's going to be a really good provider" was your understanding that instead of having different providers coming into the house that was otherwise operated by Sunnyfield, the effect of this is that Sunnyfield would have one provider for all residents in the house?

ELIZA:  I didn't think about it too deeply at the time because, again, the circumstances that unfolded were just inconceivable to me at that time.  I know that during     trying to negotiate around the eviction of, all right, well, if you can't kick her out, like you might be able to stop your service, but you can't kick her out of the house because she hasn't breached this agreement, we suggested as an act of desperation, "Well, would you be open to having someone else come in?"  We knew on a practical level that would be extremely difficult to actually do.  But we threw it out there because, you know, we were just     we can't have her in a situation where she doesn't have a home that supports her.  So that's on point 1.

The second point, around the conflict of interest, now, this is something that, at probably the latter part, I was really paying attention to.

MS EASTMAN:  What was your understanding of what this term in the agreement actually meant?

ELIZA:  So, again, I'm a layperson, I've got no legal knowledge but my understanding of conflict of interest was, one company can't do both things.  So you have to have the separate entity.  When I tried to investigate, hang on, they have got the house and the service supports, how can this be?  The answer to me at the time, I can't remember if it was FACS that was telling me or the NDIA    

MS EASTMAN:  Just slow down a little bit.

ELIZA:  Sorry.  Where do I need to start off again?
 

MS EASTMAN:  "At the time", and I think you said "FACS", so we were up to that.

ELIZA:  At the time, FACS or the NDIA, I can't remember which, said to me that the distinction between the     well, the definition of a conflict of interest in this particular context with this issue, ie service and accommodation agreements, was blurred and it wasn't entirely clear.  All I knew is I did every     I made every effort to ensure that Sunnyfield only had the service and not the accommodation, because the situation we all found ourselves in prior to engaging Sunnyfield was that this house was built for them.  The residents at the time, this house was custom built around their needs.

MS EASTMAN:  Does that mean that the house stayed with them and, if necessary, the service provider came and went, rather than the residents having to leave the house; is that right?

ELIZA:  That was my understanding of "had tried to ensure", but we couldn't actually get a clear answer.  Even when I had IDRS and Legal Aid assisting me, we could not get any information, either from FACS or from Sunnyfield as to the status of who owned that house.

MS EASTMAN:  What you are talking about with Legal Aid and IDRS is at the time that Sunnyfield gave you notice    

ELIZA:  YES.

MS EASTMAN:      that the services would terminate, with effect on 5 September?  So you are talking about that period of time?

ELIZA:  That was with Legal Aid and IDRS.  But even at the very beginning, at the very beginning, I recall sending an email on behalf of all the families, saying     and I'll have to check my records to be 100 per cent certain, but my recollection was that at the time we made a real point of saying, "This house must be separated from the service supports."  Because, with certainty, I definitely said that about the previous supported accommodation provider, because I remember when we raised the issue of, yes, "We don't want you anymore, basically, you’re fired," they said, "You can't do that because we own the house."

MS EASTMAN:  Some of the issues that you were concerned about were based on things that had happened earlier in time?

ELIZA:  Previously, yes.

MS EASTMAN:  Can I keep going through the agreement.

ELIZA:  Yes.

 
MS EASTMAN:  This agreement has a provision in it, at paragraph 7, called "Transition to another house".  It deals with the transition of a resident and also the transition of all residents.  Can I ask you to focus on clause 7.1, which is the transition of resident.  I will put this into context.  If Melissa's support needs change and either Sunnyfield or Melissa or you consider the house is not the most appropriate location to meet Melissa's needs, Sunnyfield will support Melissa to, firstly, move to another Sunnyfield house with a vacancy that has the appropriate level of support; or, (b), find alternate supported accommodation services; and/or (c) apply to the NDIA to seek additional funding to allow Melissa to remain in the current house with increased support levels.  This clause becomes important after we get to the notice of terminating services.

At the time you were thinking about entering into this agreement, did you pay any attention to paragraph 7.1 and raise any concerns about paragraph 7.1?

ELIZA:  I don't recall raising any concerns.  I remember actually being reassured by it.  Sorry, I'll slow down.  I remember being reassured by it because Melissa has been rejected by a lot of organisations and staff members who have refused to work with her, based on the complexity of her disability and challenging behaviours.  So I thought, if there was any circumstance under which a provider, such as Sunnyfield, went, mm, bitten off too much, more than we can chew, I'm reassured by the fact that they state they will find her a higher     basically, another place that could support her, or they would assist in getting funding in order to do that.

And, to be honest with you, part of me wonders why their attack of me is potentially because they know there's no alternative.

MS EASTMAN:  I don't want you to speculate at this stage.

ELIZA:  Okay, yes.

MS EASTMAN:  But I will just bring you back to the agreements.

ELIZA:  Yes.

MS EASTMAN:  This clause becomes important as to whether that clause applied in the circumstances that led to Sunnyfield notifying you that the services would terminate with effect on 5 September; is that right?

ELIZA:  Yes.

MS EASTMAN:  Looking at this agreement, if I can ask you to turn a few pages over, to schedule 2 and if I use the numbers in the top corner, it's 0289.  This is described as the "Charter of residents' rights and responsibilities".  Is this charter something that you looked at and considered when you were entering the agreement?

ELIZA:  Absolutely.
 

MS EASTMAN:  This is a charter of rights that each resident of a Sunnyfield shared living house has the right to be treated with dignity and respect and to live without exploitation, abuse or neglect, to the full and effective use of his or her personal, civil, legal and consumer rights, to quality care appropriate for his or her needs.  There are quite a lot of dot points.  If we go right to the end:

A resident has the right to complain and take action to resolve disputes, to have access to advocates and other avenues of redress and to be free from reprisal or a well founded fear of reprisal in any form for taking action to enforce his/her rights.

ELIZA:  Yes.

MS EASTMAN:  I have just read a few of the dot points.  Looking at the totality of those dot points, did this give you a sense that Sunnyfield would view the rights of residents from a rights based approach, accepting that they had rights    

ELIZA:  Yes.

MS EASTMAN:      and that they could enforce those rights?

ELIZA:  Absolutely.

MS EASTMAN:  The next document is behind tab 15.

CHAIR:  Before we do that, could you help me understand something you said.  In paragraph 15 of your statement, you say, and I think you have indicated that in your evidence today, that Melissa and other residents moved into a purpose built house in Western Sydney.  This is the house we are talking about now?

ELIZA:  Yes.

CHAIR:  How did it come to be purpose built for residents, including Melissa?

ELIZA:  When she entered into care around 2010, 2011, they went from rental to rental and each rental needed specific modifications for the clients.  So, just off the top of my head, the biggest ones were security from absconding, so we're talking fences, locks.  Melissa specifically required and requires a locked kitchen.

CHAIR:  Who did these modifications and under whose instructions or guidance?

ELIZA:  It was, I think, FACS bank rolled it and the previous accommodation provider assisted in making it happen.  So my understanding was that the rentals, there were issues with them, whether that's neighbours getting upset because the house was too loud, and there were some racist things that were said by some of the neighbours too, that basically forced them out.  There was that.  And the fact there  
was a lot of property damage.

CHAIR:  But the finance for this and the arrangements were through the State Department and this, of course, was prior to the NDIS?

ELIZA:  Yes.

CHAIR:  I understand.  Prior to the NDIS, who did you understand was the owner of the premises?

ELIZA:  FACS.

CHAIR:  Thank you, that helps me understand.

ELIZA:  Sorry, I have a tendency to waffle, I apologise.

CHAIR:  You're not the only one!

MS EASTMAN:  The document behind tab 15 is described as the Sunnyfield "Quote for Service".

ELIZA:  Yes.

MS EASTMAN:  You had to sign off on this document as well.

ELIZA:  Yes:

MS EASTMAN:  If I can summarise it this way, it is with respect to all the different types of supports, so assistance with daily life, tasks, et cetera, Sunnyfield had to quote as to what the costs of those services would be.

ELIZA:  Yes.

MS EASTMAN:  That quote then became relevant to the calculation of what the NDIA would fund?

ELIZA:  Yes.

MS EASTMAN:  I'm really putting that at a simple level.  But you agree with that?

ELIZA:  Yes.

MS EASTMAN:  This became a document, as a guide, so that you knew what Sunnyfield's charges would be.  So there would be some transparency in the costs on the quote; is that right?

ELIZA:  Yes.
 

MS EASTMAN:  You signed off on that?

ELIZA:  Yes.

MS EASTMAN:  If you turn now to the document behind tab 21, this is your email where you talked about the pressure of having to sign the documents, before you could obtain legal advice regarding your concerns.  Is that right?

ELIZA:  Yes.

MS EASTMAN:  One of the big issues that caused you concern about signing off on the documents so quickly was you wanted to talk to Sunnyfield about installing the CCTV.

ELIZA:  Yes.

MS EASTMAN:  And to have some CCTV arrangements in the house?

ELIZA:  Yes.

MS EASTMAN:  You have dealt with this in paragraph 26 of your statement.  But can I ask you, why were you so concerned about having CCTV in the house?

ELIZA:  This is a    

MS EASTMAN:  Is this a big question?

ELIZA:  This is a big question, so feel free to pull me in.

MS EASTMAN:  Let's break it down.

ELIZA:  Yes.  Ultimately, it comes down to these guys have no voice, Melissa has no voice.

MS EASTMAN:  When you say "has no voice", what exactly do you mean by that?

ELIZA:  If you are talking about instances of abuse, neglect, exploitation, all that sort of thing, when someone can't be their own witness, can't give their own evidence, they don't have the competency or capacity to speak for themselves in a way that it would be taken seriously by a court or a tribunal, that's what I mean by she has no voice.  She can't defend herself and I was concerned that things were happening to her, and again it's not just Sunnyfield, this has been a thing for a while, where I have been very worried that things are happening to her that we're not being told, and they are manifesting in her behaviour as distress, changes to her personality, changes to her behaviour.  The clearest example of, like, what happened to her when I mentioned the previous special school.  So that was a gradual thing that happened  
over a period of two years, and because I was away in another house, I would only see her every now and then, so I could pick up on these big changes, and by the time it hit crisis, Melissa was a different girl.

MS EASTMAN:  So was having CCTV, in your mind, a way of having a record so that what was recorded on the CCTV could tell the story about what might happen?

ELIZA:  Absolutely.

MS EASTMAN:  Was that the purpose of it?

ELIZA:  The purpose of it was to    

MS EASTMAN:  Was the purpose of it to spy on people or to breach their privacy at all?

ELIZA:  (Laughter).  The things I could tell you guys about the arguments around privacy.  Someone, some regulator, some impartial body, has to be able to break this chain of he said and she didn't say, because she can't say.  So a lot of the allegations and concerns that have been brought up even just today, even if we don't talk about the past, a lot of them were unsubstantiated because they couldn't be proven.  Now, if there is an objective way     and it works the other way as well, right.  So if a client or a family member were to falsely accuse somebody of wrongdoing, it works as a protective mechanism.  And by God, it would save a lot of time and arguing because you take out the     it's an objective look, basically.  And I don't have to see it, but someone does, someone has to.

MS EASTMAN:  Is that why, coming back to when you were signing the agreements, you had that correspondence with Sunnyfield about the CCTV?

ELIZA:  Yes.

MS EASTMAN:  Is the upshot that you thought you were likely to get some agreement in principle about CCTV being used in the house    

ELIZA:  Definitely.

MS EASTMAN:      in some form, but without the details of exactly what would happen; is that right?

ELIZA:  That's right, because in my discussions with Dr Mark Clayton     and he was fantastic, because I recall feeling a sense like we were on the same page.  And I know that there were a lot of privacy, legal privacy and logistical issues to having that there.  But like I say to anyone who will listen, if you're going to make the argument around, well, it's going to be a breach of someone's privacy, when you go to a     if you take this example and extrapolate from it what I'm trying to say here, if you go to a psychologist, you have a right to confidentiality, you have that private  
environment to talk about the weirdest things and your deepest darkest issues, but as soon as you say you are going to hurt yourself or you are going to hurt someone else, your privacy goes out the window.  Why don't we have the same thing for these poor vulnerable people who can't speak for themselves?

MS EASTMAN:  You wanted the CCTV to be their voice?

ELIZA:  Yes.

MS EASTMAN:  And to bear witness to what was happening to them in the house?

ELIZA:  Absolutely.

MS EASTMAN:  But you were not wanting the cameras to be installed so that you could breach the staff's privacy or spy on people; is that right?

ELIZA:  No, and nor do I think it's appropriate that I even have access to that, because     and I think it's identified very well in the email that Dr Clayton sent to me.  He spoke in real frank terms, without all the corporate spin and the stuff on paper that really means nothing.  He said these are the real issues that we have and basically the reasons why there's not CCTV in there already.

So I honestly     and we all thought it, it wasn't just me, it was all the families, because we were all concerned about this issue.  We felt that once the chaos of the transition was over, that we would start working through those things.  So even if it's just the case of, like, a camera in the communal area, obviously we are not expecting them to be in bathrooms, we are not expecting them to be in bedrooms, but the main areas, entries, exits, communal spaces, to be seen by a private regulator that only has their interests at heart and, obviously, to be a fair and impartial judge of circumstances.

There was also a motivation regarding the CCTV to provide some clinical feedback.  I recall that being an issue and it still is today, in the sense that in regards to Melissa's behaviour and the management of it, often there is a feeling     there is a disconnect between those caring for Melissa and the clinical team, or there is a perceived disconnect, in the sense that when people come in, they think that the family or the doctors and the clinicians have no idea what it's like on the ground, and regional manager 1 said that to me, in explicit terms, when she didn't     when her and SP1 didn't turn up to her first psychiatrist appointment.  I wrote the exact statement in one of my emails, but it was to that effect and it caused me great concern because I know that the job of safeguarding and caring for Melissa is really hard.  Like, these staff, they all deserve     like, they don't get recognised for the work that they do.  It is thankless, it is exhausting and they all     like, they're heros.  I couldn't do it.  I worry for them because sometimes the oversight of behaviour is tricky.  We currently have a system that relies on one person's report of an incident.  If I can even use myself, and I'll come back to the issue of the CCTV ---

 
MS EASTMAN:  I want to come back to the issue of the CCTV, but you want to finish this?

ELIZA:  Yes, because it is relevant in the sense that     I know from myself, so we don't use the staff as an example, use myself, I tried to     I had an incident with Melissa that went for about an hour and I asked the staff, "Can you film me engaging with her?", because I want to sit down and have a debrief with her behavioural specialist and with her doctors and I want to make sure they know, that they can see what I'm doing.  It works in both ways, as in, one, to get that objective view of what I'm doing and, also, so I can get feedback for myself.  But also if I'm doing everything right and this is still happening, does that mean that she might need to have her medication changed or something like that?

When I wrote down my recollection of that incident in terms of that A, B, C format, so antecedent, so what caused or may have triggered the behaviour, the actual behaviour itself and the consequence or what happened afterwards, when I watched myself back with the clinician, she said, you notice how you didn't really give her much time to respond?  I went, "Oh my God".

There I was, yap, yap, yap, yap, yap, in her face, because I was stressed.  And, you know, the clinician walked me through it and said, "It actually takes like 15 to 20 seconds, so next time, ask her once and wait for her response. " 

MS EASTMAN:  So it could be used as a learning tool?

ELIZA:  Absolutely.  Absolutely.  And also to give that direct feedback and to show the clinicians.  Like, it goes both ways.  It will create more trust because the staff will know that they are seeing exactly what she is doing and vice versa.  Like, if there's something that can be     sometimes the staff, they do everything right and she still does it, and give them that reassurance that, hey, there's nothing wrong with you, yes, it's stressful, are you all right, do you need anything?  I think that will be very beneficial and it happens with every new staff that comes in.

MS EASTMAN:  I'm going to take you back to the email that's behind tab 18 in the volume that you have.  Can you tell me, is that the email that you were describing earlier, from Dr Mark Clayton to you, and it's on 11 April 2017?

ELIZA:  Yes, that's the one.

MS EASTMAN:  Dr Clayton apologises for not responding earlier to your email related to the use of CCTV.  He says:

I support the use of CCTV in principle and understand the context of why this can be considered necessary.  The practical realities of employing this can present a range of issues which need to be carefully considered.

He sets out eight particular issues.

ELIZA:  Yes.

MS EASTMAN:  He also says:
 

Another important component of this is that this would be something the families would need to pay for and maintain.

ELIZA:  Yes.

MS EASTMAN:  He said that raises an issue about who owns the recording and the like.

ELIZA:  Yes.

MS EASTMAN:  You wanted the CCTV to be part of the terms of the agreement that you signed.

ELIZA:  Yes.

MS EASTMAN:  That's when you got the response to say, "These are standard legal terms"?

ELIZA:  Yes.

MS EASTMAN:  I want to put this to you.  Ms Cuddihy, when she gives evidence later this week, will tell the Royal Commission this about the terms.  She will say:

Those terms concern matters which are not readily susceptible to negotiation or customisation, and which cannot reasonably be expected to be qualified or removed, such as the rights and responsibilities of each of Sunnyfield and a client, termination rights, and payment arrangements.

Do you accept what she says, that these are not terms readily susceptible to negotiation or customisation?

ELIZA:  Not at all.

MS EASTMAN:  I want to now move on.  The agreements are signed and Sunnyfield move in on 1 May 2017.  You tell the Royal Commission that in the first few weeks and months after Sunnyfield took over the operation of the house, things appeared to be chaotic, to you.  It's the case, isn't it, you were not at the house on a day to day basis in the first few months, were you?

ELIZA:  No, that's right.

MS EASTMAN:  Some people may put to you that you only visited the house every now and then, maybe every three months or so, and so you've never really been in a position to know what the day to day arrangements at the house have been.  What would you say to that?

 
ELIZA:  By way of background, I was pregnant at the time that I became Melissa's guardian.  I also have a job that put me into regional New South Wales.

MS EASTMAN:  I don't think anyone is criticising you for not being there.  But the proposition is that if you're not there all the time, then you don't have direct knowledge of what was happening in the house and how did you know what was happening at the house?

ELIZA:  Yes, so there were a few different streams of information.  So there was when the staff would call, there was Mum ringing and writing notes about, like, basically her own shift notes, when she would turn up.  I also had clinicians feeding back to me when they were visiting Melissa, what was going on.  And I made a real point of reading every shift note, every incident report, any bit of documentation I could get my hands on, to try and understand what was happening.  So that was what informed my understanding of what was happening in the house at the time.

MS EASTMAN:  Sunnyfield would say that when they took over the house at the beginning of May, and they also had to move in very quickly, they were told that there had been a very high turnover of staff by the previous service provider and records that should have been there were not, the records were minimal, and that there were aspects of the property that were in a state of disrepair, and so Sunnyfield had to make some initial repairs over those first few months.  Were you aware that Sunnyfield had those issues to deal with?

ELIZA:  Yes.  If I can respond to a few of those things, I missed the first part, but the one thing on the documentation was they didn't have to rely on the prior service provider for Melissa's documentation because I gave them everything, and you know how particular I am about the paperwork.  They had it all from the very beginning.  So that's that part.

The second part about the modifications and the repairs to the home, I think the stove was broken, they had no window coverings, and I remember being frustrated because, from my view, these strangers were entering the home and they started immediately to make decisions about modifications and repairs, and what have you, on the house without consulting with the families.  And the reason why that was a point of frustration at the time was because there are certain behaviours that the clients engage in that cause     that inform what you do to the physical house.  So I recall being frustrated, also, because if it was identified to us as a group, as a collective, that the house needed something, I was so willing to fight for funding for them, so they had everything they needed, and it's still my     that has always been my position, that if the staff need something, I will hammer and tongs get it for them, because anything that makes their life easier will make Melissa's life better.

In regards to the equipment and the house, I felt very excluded from that process, which was a concern only insofar as it was potential detriment to Melissa.

MS EASTMAN:  When Sunnyfield took over the house, there were four residents of  
the house at that time.  You didn't have access to information about the actual staffing levels at the house on a day by day basis.  You have set out in your statement at paragraph 31 that your understanding was that, generally speaking, the house manager would be present most of the week to provide consistent oversight and that there would be at least one staff member dedicated to Melissa during waking hours.  You make some observations in that paragraph about the arrangements for Carl and Chen as well.

So it's the case, isn't it, by mid 2017 you were at the house and you saw that there was only one support worker, working on her own in the house.  And your mum, who visits Melissa three days a week, would also tell you that there was only one staff member on at times when she was in the house.  This caused you to start to have concerns about how the house might be being operated and again the impact on Melissa.  So that's in the early days.

You were aware, weren't you, from both the agreements that you signed and some of the information that you had, that Sunnyfield had a complaints and feedback brochure?

ELIZA:  Yes.

MS EASTMAN:  I might ask that that document come up on the screen.  Commissioners, you will find a copy of this behind tab 17 in the same bundle.  Some of the writing is a bit difficult to read, so I'm hoping if that comes up on the screen, it might be a little easier to see.  This is the "Complaints and Feedback Guide".  Have you got that?

ELIZA:  Yes.  I memorised it.

MS EASTMAN:  You can help me.  Over the page, it sets out "Important things to know about giving feedback", "Why should you give feedback?", "Giving feedback" and "Who can give feedback", and then there are other matters in terms of raising.  So the language here is about feedback, not complaints.

ELIZA:  Yes.

MS EASTMAN:  Did you understand there was a difference between feedback and complaints?

ELIZA:  Can you maybe give me a bit more parameters around that because there's what the document says and then there's what happens in reality.

MS EASTMAN:  Lets work on what the document says.  This was an important document for you in understanding, if you had a concern and you wanted to give feedback, if you had a question about what was happening in the house, was this the procedure that you thought you had to follow?

 
ELIZA:  Initially, yes.  But then, when it came down to it, we were basically told you had to go through SP1.

MS EASTMAN:  This says:

You have the right to give feedback or to make a complaint.  It makes us better at what we do.  If you want to give feedback you should do it as soon as you can.

You will not be treated differently for saying what you think and how you feel.  If you are a client, you will not lose your service.

Sometimes we can respond to your feedback straight away and sometimes we need to find out more before we can respond.  This can take time but we will tell you what is happening and when you can expect to hear from us.

What did you understand this to mean, in terms of how you should go about giving feedback, asking questions, or when you might make a complaint?

ELIZA:  Exactly what it says, in terms of it's all about communication, right?  It's all about speaking up.  If you see an issue, you tell them.  And I honestly     like, for every     I think the line got blurred between feedback and complaint when it was clear I started to be treated not in a way that was advertised to me, and I went, wow, okay.  Perhaps if they are not going to listen to, like, a casual feedback, do I need to complain to get them to pay attention.

MS EASTMAN:  You have said in your statement that communication between you and Sunnyfield quickly broke down.

ELIZA:  Yes.

MS EASTMAN:  To the point that by 17 July 2017 you received a letter from the Acting General Manager of Shared Living, which included information about the process by which you were to communicate with Sunnyfield staff.  Can I ask you to have a look at what might be the last tab in the volume that you have behind tab 28.  This has some names that are also subject to redaction or pseudonym orders.  I don't want to go through the document in detail, but can I ask you whether you remember receiving this letter and what was your response to receiving this letter?

ELIZA:  From memory, this came out of     let me go back.  When the transition first happened, I still had a lot of questions.  As we have already covered, the agreements were very generalised.  I wanted specific answers.  I wanted them to lay out for me in no uncertain terms, what is it that I'm to expect, particularly around communication?  And I think this was formulated --- and again I'll need to double check the actual paperwork but, from memory, this letter was formulated prior to me being able to really explain why I was asking these questions.

 
Everything felt very rushed.  I felt like a nuisance for asking the question.  When I wasn't getting an answer from someone, I would find someone else within Sunnyfield or externally to try to give me an answer, to help me get my bearings as to, okay, well, they're clearly not doing what their policies say or what they advertised they were going to do, so what have I just gotten her into?

So when I got this, it was clear to me that my point of contact was SP1, whether I liked it or not, and    

MS EASTMAN:  SP1, he had been employed by Sunnyfield as the house manager of the house?

ELIZA:  Yes.

MS EASTMAN:  He commenced, as you say in paragraph 37, around June?

ELIZA:  Yes.

MS EASTMAN:  So this is a letter that you got about a month to six weeks after he had started?

ELIZA:  Yes.

MS EASTMAN:  The communication between you and SP1, was that difficult from the moment he started?  I'm asking you this because you say in paragraph 37 that when you first met him, he came across as very charming, caring, down to earth, and from the things he said to you back then, you got the impression that he would use common sense rather than let technical rules dictate what would happen in the house.

ELIZA:  Yes.

MS EASTMAN:  So what happened in those first few weeks that changed your view about SP1?  And you've got a communication protocol set out in the letter that I've just taken you to.  What happened?

ELIZA:  There was a lot of specifics and it was really challenging because I found that     SP1 was new to the organisation as well, so he couldn't often answer my questions and so he would defer to someone else or he would say, "I'll get back to you."  But there were many instances where he didn't or he would give me half an answer or he hasn't understood what I was asking.  And, yes, it was     I think where it started to turn was when we started to get into the nitty gritty around behavioural management.  I think that's where it really came to a head.

So when I said that he would let common sense dictate the home, Melissa has previously been in a situation where people haven't stepped in because they are afraid of doing an unauthorised restrictive practice, per se, so physically grabbing her.  Now, if you are out in the community and Melissa sees something across a busy  
road, I couldn't have it on my conscience that someone was afraid to stop her head first into traffic.  So I wanted it to be really clear in writing and give staff the assurance that if she needed to be physically restrained for her own safety and it was a last resort measure, that people would use common sense and do it.

Then when we started having these discussions, it became clear to me, because SP1 told me explicitly, that if he felt Melissa needed to be physically restrained, that he would just do it.  And    

MS EASTMAN:  You said that in paragraph 40 of your statement.

ELIZA:  Yes.

MS EASTMAN:  Did that cause you concern?

ELIZA:  Yes.

MS EASTMAN:  Why?

ELIZA:  Why?  Oh, why?  Well, around the same time, we thought that perhaps there was a sensory component to Melissa's head banging and so we were making investigations into having her room padded, to give her a safer environment where she wouldn't hurt herself, and take the pressure off.  Like, we were trying to do the least restrictive thing for her because getting hands on with her is dangerous for her, and for you.  She's got osteoporosis, and she's small, she's 4 foot something, she's the size of an 8 year old, and so there's a real risk that you're going to hurt her.

Now, speaking for from experience, because even from     before we really understood her behaviour, from as young as she started displaying these behaviours, we jumped on her because we thought it was the right thing to do.  And what I found, when we actually     because I pushed to get it in her initial BIS plan because, again, I thought it was the right thing to do.

MS EASTMAN:  What's the BIS plan?

ELIZA:  The behavioural intervention support plan, so it's basically the manual of what you're supposed to do when she's engaging in self injurious behaviour.

MS EASTMAN:  The plan is developed with the support of a behavioural support specialist; is that right?

ELIZA:  Yes, although     do you want me to talk about that part?

MS EASTMAN:  The purpose of the plan is to assist the support workers who work with Melissa to know how to understand behaviours?

ELIZA:  Yes.
 

MS EASTMAN:  And some techniques in responding to particular behaviours, so that Melissa can be safe in the house?

ELIZA:  Correct.

MS EASTMAN:  Or if she's out of the house, safe in the community.  That's the purpose of it?

ELIZA:  That's right.

MS EASTMAN:  It's not that you just, sort of, decide what to do at that moment?

ELIZA:  No.

MS EASTMAN:  The purpose of the plan is to provide some predictability.

ELIZA:  Yes.

MS EASTMAN:  Both for Melissa, as to how she might be treated, but also for the support workers to know what to do?

ELIZA:  Exactly.

MS EASTMAN:  How to help ---

ELIZA:  Yes.

MS EASTMAN:      in summary, without going into the detail of     

ELIZA:  Yes.

MS EASTMAN:      too much of it.

ELIZA:  Yes, and how to do it safely, because people have died.  People have died.  You put them in a prone position and people don't know that they have just stopped them breathing.  I had had several discussions with SP1 around how do we formulate an appropriate plan that would be suitable for the six foot, you know, rugby playing support worker, versus the four foot, you know, mother, in responding to Melissa.

MS EASTMAN:  This topic about how to manage behaviours and how to respond if there was a behaviour that needed a response to keep Melissa safe, started to become a source of tension between you and SP1?

ELIZA:  Yes.

MS EASTMAN:  You wanted to raise your concerns about how SP1 was addressing  
these matters with other people in Sunnyfield.  Did that mean that you ended up having to escalate some of these concerns or feedback or complaints, whatever the expression is    

ELIZA:  Yes.

MS EASTMAN:      up to the level of the Company Secretary.

ELIZA:  Yes.

MS EASTMAN:  And the CEO from time to time; is that right?

ELIZA:  Yes, that's right.

MS EASTMAN:  Would it be fair to say that throughout the latter part of 2017, as you've set out in your statement, that there were a number of complaints that you made about what might just be incidents that occurred on a day to day basis or some particular incidents that arose?

For example, in paragraph 42 you tell the Royal Commission that in late September 2017, Melissa's Occupational Therapist reported to you that she found discarded batteries on the grass at the back of the house and an email was sent to SP1 and the Regional Manager about it, because if Melissa had found them, she could have easily put them in her mouth and tried to swallow them and that would be dangerous for her.

ELIZA:  Yes.

MS EASTMAN:  The Regional Manager at the time said the batteries were not the Sunnyfield staff's fault, as someone outside must have thrown them into the garden.  Your response to that email was:

I wanted to bring the issue of the batteries to your attention, so did the occupational therapist.  We were not trying to blame Sunnyfield staff for putting the batteries there but to recognise that it was a danger to Melissa.

ELIZA:  That's right.

MS EASTMAN:  So this exchange highlighted this tension by this stage that was between you and Sunnyfield?

ELIZA:  Yes.

MS EASTMAN:  I have to ask Ms Cuddihy about this later in the week, but is this illustrative of an issue like batteries in the garden then becoming this ongoing source of tension?

 
ELIZA:  Yes, because it was like this     a real culture of blame and you couldn't raise an issue without someone being offended.  And it was challenging too because my reading of both SP1 and Regional Manager 1 was that they knew better, they knew better than her doctors, they knew better than her clinicians.

MS EASTMAN:  That was your sense of it?

ELIZA:  That was my sense because the    

MS EASTMAN:  But you don't know for sure whether they did know better, but that's your sense of it; is that right?

ELIZA:  Sorry, no, regional manager     well, I suppose, I don't know how else you interpret --- and I'll have to look again specifically what she     the actual wording, but it was words to the effect of "The doctors don't know", like, "The psychiatrist doesn't know.  He's not here."  So from that interpretation, which I don't know how else you could interpret that, yes, I felt that they thought they knew better.  And also from SP1's own email, where he refused to meet with Maybo, which is the crisis intervention training service of choice at Sunnyfield, who is fantastic by the way.  He was marvellous.  SP1's response was words to the effect of, well, unless you're going to put restraint in the plan, I'm not coming.  It was this real difficult, where I knew     it was a real difficult situation, where I knew that to create a plan that was meaningful for the staff, safe for Melissa, and was clinically sound, I needed everyone to do their bit, and I felt a very strong pushback that they weren't interested.

MS EASTMAN:  That was your perception; is that right?

ELIZA:  Yes.

MS EASTMAN:  You didn't know for sure whether they were or weren't interested but that's your perception at the time; is that right?

ELIZA:  Yes, of SP1 and of Regional Manager 1, yes.  When we later had a meeting, I got the sense that the senior managers were pulling the corporate line and, basically, my perception and interpretation of the situation is they basically said to SP1, "You can't say that", like, you have to say, "No, we use the least restrictive manner, we don't touch her."  But later when I am attending another psychiatrist appointment, I had the staff saying to me, "You know that we still do it; right?"

MS EASTMAN:  These are other support workers?

ELIZA:  A support worker working at the home at the time.

MS EASTMAN:  You say in paragraph 45 of your statement that you became increasingly concerned that Melissa might be physically restrained from time to time, and during a meeting in late 2017, SP1 expressed frustration at being told he could not lock Melissa in her room, once we had modified it with padding, stating, "What's  
the point of the padding?"  You set out your concerns about this attitude and the detrimental effects of seclusion and restraint in an email to the Ombudsman on 8 December 2017; is that right?

ELIZA:  Yes.

MS EASTMAN:  You have provided a copy of the email to the Ombudsman in your statement.  I want to keep moving beyond 2017.  You say in paragraph 46 that another support worker was hired to work in the house and you described him as SP2.

ELIZA:  Yes.

MS EASTMAN:  You were told that SP2 would be Melissa's key worker?

ELIZA:  Yes.

MS EASTMAN:  You recall SP1 saying words to the effect that you should be happy because all you wanted was a lot of communication with Melissa's key worker, and SP2 could speak English?

ELIZA:  Yes.

MS EASTMAN:  You're sure you're right on the recollection of that conversation?

ELIZA:  Yes, 100 per cent.  And I had previously raised issues of racism with this particular     with SP1 as well.

MS EASTMAN:  At that time, this is early 2018, you did not have any particular concerns about SP2 at the time, except you say in your statement you would have chosen a different person if you were given the choice.  Is that a statement that you make with the benefit of hindsight or is that something you thought of at the time?

ELIZA:  No, I thought of that at the time but I was being told.  I was never asked, who would you like to be Melissa's     or who do you think would be the best person for Melissa?  There was no choice.  I was told.  And by that stage I was so scared of retaliation that I was just like    

MS EASTMAN:  Sunnyfield might say to you that, while it has the responsibility of employing staff, the families were given the opportunity to come to interviews if they wanted to and it may not have been for SP2 but it may have been for SP1 that you didn't go to one of the interviews.  Do you remember whether you were given the opportunity to participate in any interviews about the staff who would come and work at the house?

ELIZA:  My recollection was that they had already chosen SP1, but I was given a superficial invitation to provide feedback.  And this is again where we have a very  
stark point of difference in our interpretation of choice and being able to provide meaningful feedback.  I have always been of the view that you need to see someone in action for about six months before you can provide     before you know whether they are right for the house or not.  And I've seen some fantastic support coordinators in my time.  I've gone through --- well, since I've been Melissa's guardian, there have been 10, that's including both accommodation providers, there's been 10.

MS EASTMAN:  That's one a year.

ELIZA:  Yes.  No, two a year.

MS EASTMAN:  Two a year.

ELIZA:  Two a year.  So I've seen a lot of different styles, a lot of different ways of approaching things and I know, with certainty, you can't give an informed choice until you know.  Because they can say whatever they like on their resume or on their LinkedIn profile, it doesn't mean anything until you actually see them under pressure and you see how they speak to you, how they speak to Melissa, how they respond to issues, how they raise those issues with the staff and how they speak to the clients, how they consider them.  And then when I do see Melissa, because I do get a lot of videos from our mum and obviously from other clinicians, and when I read the notes, I can sort of piece together what she's thinking about certain people.  And it's not a super clear picture all the time, because if it was clear I would have made sure I raised some concerns about SP2.  But yes, I had no idea.  I didn't particularly think he was a good fit but I didn't see any flags with him that gave me concern.  And I was shocked when I found out.

MS EASTMAN:  We will get to that a little down the track.  I want to ask you about the early part of 2018.  It's the case, isn't it, that the New South Wales Ombudsman offered to conciliate between you and Sunnyfield?

ELIZA:  Yes.

MS EASTMAN:  You mention this at paragraph 59 of your statement.  Your understandings is Sunnyfield declined to conciliate and was that in relation, by this stage, to two complaints that had been made to the Ombudsman?

ELIZA:  I can't remember the amount of complaints.  There was a lot, because by that stage, so much had banked up because things weren't addressed for such a long time and I sent the Ombudsman a lot of emails.  And what I was just so perplexed by at the time was that the Ombudsman     my understanding is that they are an impartial body, that their primary concern is Melissa, and they would, in the same breath, say to me, "Eliza, I think you are being unreasonable here.  I think you need to take it down a notch" or, "Don't know about that.  Maybe try it."  They would give me that feedback, as well as Sunnyfield.  So I remember being completely floored that someone would ignore an invitation, because that's a mediation service that can be done for free.
 

MS EASTMAN:  That caused you to be upset, didn't it    

ELIZA:  Oh, yeah.

MS EASTMAN:      that Sunnyfield weren't prepared    

ELIZA:  Yes.

MS EASTMAN:      as you understood it, to participate in a conciliation at that time?

ELIZA:  Yes, because communication was so bad, we needed help.  I had reached out to everyone within Sunnyfield to get that help, to improve that communication and     yes.

MS EASTMAN:  You are not saying, are you,     in terms of when you made complaints and gave feedback, sometimes you were quite direct in the language that you used and the way you described events and the things that you wanted to happen?  You don't shy away from being quite direct, do you?

ELIZA:  No, and I have made apologies for that and I'll continue to do so because it's it's difficult.  Like, I have --- I've always been a very direct person and I don't get offended easily, so sometimes it can be difficult for me to pick up when I have offended somebody.  And it really was highlighted to me when I was denied the opportunity to speak directly or face to face with SP1 and other staff in the home, because I've been told that I'm a bit nicer in person than I am on paper, but I constantly felt like, well, if they don't have time or they don't see the value in, or they think I'm being frivolous, vexatious, whatever, I better keep some notes.  And so     and it got difficult too, because the soft skills that you need to manage people around, you know, asking how their day was, and doing all the little niceties, it doesn't come naturally to me.  I'm very    

MS EASTMAN:  You are not there that often to have those sorts of conversations, are you.

ELIZA:  But, by God, I tried so hard.  Like, I did everything I can because I know it's important because, at the end of the day, the relationships matter.  We can call this a private business service, whatever, but at the end of the day, we're relying on people to be good and to be honest and truthful.  Yes, I really tried to address it.  And I know I have repeatedly said to Sunnyfield that, you know, I'm open to changing the way I do business, provided that you listen to my concerns.  Tell me if I'm jumping ahead here but    

MS EASTMAN:  That's all right.  I'm conscious of the time and I was going to say to the Commissioners in a moment we might have a short break, because the next topic I want to deal with is 4 June 2018, which is when you received the notice.  Do you  
want to come back later to what you're open to do?

ELIZA:  Yes.

MS EASTMAN:  This is part of some of the outcomes that you are seeking.

ELIZA:  Yes, definitely.

MS EASTMAN:  Commissioners, can we have a short adjournment?  Would 15 minutes give you enough time to have a bit of a break?

ELIZA:  Yes.

MS EASTMAN:  And then we can resume.

CHAIR:  Yes, we will adjourn now and return at 3.20.  Will that give you enough time?

MS EASTMAN:  Yes, certainly.

CHAIR:  We will take the 15 minute break.  We will adjourn now.

ADJOURNED    [3.03 PM]

RESUMED    [3.20 PM]

MS EASTMAN:  Eliza, I want to jump ahead a little bit to 4 June 2018.

ELIZA:  Yes.

MS EASTMAN:  On that day you received a letter from Sunnyfield.  Can I ask you to look in the folders that you have got, but this time to volume 2, the document is behind tab 29.  Do you remember receiving this letter, by email?

ELIZA:  Oh, yeah.  They sent me a copy by post too, just in case.

MS EASTMAN:  Just in case.

ELIZA:  Yes.

MS EASTMAN:  This letter is headed "Notice of cessation of services to Melissa, effective 5 September 2018".  It says: 

We are writing, after lengthy internal consideration, to inform you that  
Sunnyfield has decided it is unable to continue to provide support for your sister, Melissa.

As per Sunnyfield's Service Agreement with Melissa, the purpose of this letter is to provide three months' notice … of the cessation of Sunnyfield's services to Melissa with the notice period therefore expiring on 5 September 2018.  We confirm that the Accommodation Agreement entered into with Melissa will terminate at the same time as the Service Agreement and Melissa will therefore be required to leave the house … no later than 5.00pm on Wednesday 5 September 2018.  All outstanding rental contributions and fees must be paid on or before that date.

If you require any further information, please do not hesitate to contact me …

That letter was cc’ed to the CEO of Sunnyfield, Ms Cuddihy.

You have told the Royal Commission, at paragraph 61 of your statement that this letter, giving you notice of terminating the services and in effect evicting Melissa, came out of the blue for you?

ELIZA:  Yes.

MS EASTMAN:  You remember receiving the email when you were at work?

ELIZA:  Yes.

MS EASTMAN:  And were you shocked.  And, what, your immediate reaction was that you were terrified Melissa was going to lose her home and about the impact this would have on her?

ELIZA:  Yes.

MS EASTMAN:  You tell the Royal Commission that even though things were not good in terms of how the house was being run by Sunnyfield, it was still her home and you knew it would be very difficult, if not impossible, to find somewhere else appropriate for her to live.

ELIZA:  Yes.

MS EASTMAN:  Did you feel when you received that letter that it gave you any reason as to why Melissa's services and accommodation would be coming to an end and she had to vacate by 5.00 pm on 5 September?  What did you think the reasons were?

ELIZA:  Spite.

MS EASTMAN:  That was your immediate sense?
 

ELIZA:  That was my immediate sense, because I spoke up about SP1 ad nauseam.  I tried to approach everyone who would listen and I felt unsupported, not believed.  In hindsight, from some of the things I learnt today, gas lighted, that there was no problem, that I was the problem.  They knew I had no capacity to look after Melissa.  I felt this was motivated by personal grievances that, even though, like, things were hard and things had deteriorated to a point, I was so open and so wanting them to just talk about it, and I felt stonewalled at every opportunity and I couldn't understand why.

MS EASTMAN:  You wanted to get some reasons, though, didn't you    

ELIZA:  Yes.

MS EASTMAN:      from Sunnyfield, so you made some requests for reasons?

ELIZA:  Yes.

MS EASTMAN:  You did receive a letter, also sent to you by email, on 13 June 2018.  So this is nine days after the letter.  Can you turn to the document behind tab 30 in the volume that you have.

ELIZA:  Yes.

MS EASTMAN:  Do you recall receiving this email or letter?

ELIZA:  Yes.

MS EASTMAN:  It makes a reference to the service agreement between Sunnyfield and you, as Melissa's representative?

ELIZA:  Yes.

MS EASTMAN:  The author of this letter says that the agreement provides both parties with the option to terminate the agreement with three months' written notice and it says this: 

The decision does not need to be mutually agreed and nor does Sunnyfield need to provide any reasons for exercising its option to terminate the agreement.  This approach is consistent with the underlying ethos of the NDIS, where flexibility of choice and control is conferred on both the participant and the service provider.

Do you recall reading that?

ELIZA:  Yes, yes.

 
MS EASTMAN:  With respect to "the decision does not need to be mutually agreed", had there been any attempt at all, to the best of your memory, of Sunnyfield seeking to agree with you about Melissa moving to a new provider, before 4 June?

ELIZA:  No, there was no discussion about any alternative, there was just me speaking to a brick wall about things that were worrying me about her care.

MS EASTMAN:  In terms of what's described as "the underlying ethos of the NDIS", had it been your understanding that flexibility of choice and control was also something that applied to service providers?

ELIZA:  Not in this way.  If they had made reasonable attempts to just speak to me and an impartial body like the Ombudsman, or I think the Community Justice Centre we made inquiries with at the time, or even later on with the NDIS Quality and Safeguards Commission, if they had said, you know, "Sunnyfield, you've tried the best you can, Eliza is obviously a pain in your backside and she's unreasonable, I suppose you've got to ditch her out", I would have gone, okay, that was fair.  I got fair notice, I got due process.  You know, it's common human decency that you would actually speak to someone before you made such a drastic decision that could have such severe consequences.

MS EASTMAN:  Coming back to my question, you don't remember any discussion about some sort of mutual agreement before the 4 June letter; is that right?

ELIZA:  You're talking about an alternative provider?

MS EASTMAN:  Yes.

ELIZA:  No.

MS EASTMAN:  It wasn't raised with you.

ELIZA:  No.

MS EASTMAN:  So you had no warning    

ELIZA:  No.

MS EASTMAN:      that you better pull your socks up, so to speak, otherwise we might have to exercise that clause in the contract about termination.

ELIZA:  No.

MS EASTMAN:  No one gave you any warning?

ELIZA:  No.

 
MS EASTMAN:  Can I come back to the letter, behind tab 30.  The General Manager of Shared Living says in the letter: 

Sunnyfield does currently have a duty of care to Melissa while we are providing services to her under the terms of our Service Agreement and, as stated in our letter of 4 June, we will continue to support Melissa appropriately during the notice period.  However, once Sunnyfield ceases providing accommodation and support to Melissa on 5 September 2018, you as her guardian will be responsible for making the decision about where Melissa will live and who will support her.

Pausing there, how did you take this, in circumstances where the agreements, which we looked at a little earlier today, talked about looking at alternative accommodation at Sunnyfield with a higher level or looking at different service providers?  Did it cause you any concern that this paragraph seemed not to be consistent with the agreement that you had signed?

ELIZA:  Yes.

MS EASTMAN:  Can I ask you to look at the next paragraph.  It says this: 

Whilst we are not obliged to give you reasons for our decision, Sunnyfield has made the decision to cease providing services because, following a period of over 12 months of service delivery and despite our best endeavours, we have concluded it is not in Sunnyfield's overall best interests to continue to provide services in an environment where you so clearly lack trust in Sunnyfield, our staff and our policies.  Despite Sunnyfield's multiple attempts, intervention from the New South Wales Ombudsman, and ongoing dialogue between yourself, Sunnyfield has determined that it is unlikely the relationship will improve.

As at 13 June, or indeed a week or so before, on 4 June, did you hold the view that the relationship was unlikely to improve?

ELIZA:  No.  I think it didn't get     I was never given the chance.  It never got a chance, because how can you build a relationship when they refuse to sit down with you, without their lawyers making you sign a confidentiality agreement?  No offence, guys.

MS EASTMAN:  You were told: 

This decision has not been taken lightly.

You would accept that, wouldn't you?

ELIZA:  I don't     I don't know how you can     I don't know how you can say that, with the nature of what this means for Melissa.  I don't know how you can say that  
and only have a single hour conversation with Melissa's guardian and approve and sign off on something as extreme as making a disabled, voiceless girl homeless.

MS EASTMAN:  The letter says:

We understand the disruption it could cause Melissa.  However, despite Sunnyfield's significant investment of resources, time and commitment to address, as we have been unable to develop a positive and productive relationship between Sunnyfield and yourself, we have concluded that we have to make this decision.

That gave you the reason, didn't it?  It was because of the relationship between you and Sunnyfield?

ELIZA:  Yes.  What I couldn't understand is how they can refer to intervention from the New South Wales Ombudsman when they refused their offers for help.  Because, like I said, they were just in the same breath as tell them what to do as tell me what to do.  I don't understand how you can make that statement.  And despite all that has happened, I am committed to working through it, despite all this, because Melissa needs us to.

MS EASTMAN:  It would be fair to say when you received this letter of 13 June, it made you furious?

ELIZA:  Yes.

MS EASTMAN:  You responded with an email the following day, which Commissioners and you will find behind tab 31.  You refer to the accommodation agreement and the service agreements.

ELIZA:  Yes.

MS EASTMAN:  You say that you note that Melissa has paid her fees and she's not in breach of the agreement.

ELIZA:  Yes.

MS EASTMAN:  And you say: 

I have previously asked for your reasons for terminating my sister's accommodation and services however these were not provided until your last letter which shows that my sister is being evicted because I made complaints on her behalf. 

I do not agree that you have the right to withdraw accommodation and services from my sister, for the following reasons......

 
Then you set out a number of reasons.  Can I summarise them?

ELIZA:  Yes.

MS EASTMAN:  Commissioners, you have the document there.  Firstly, the house where she lived was a purpose built house for her, and this is the issue I think you spoke about earlier in your evidence, about your understanding that the New South Wales Government had guaranteed that residents cannot be evicted for the first two years from these homes.  So that was reason one.

ELIZA:  Yes.

MS EASTMAN:  Secondly, you said:

It is illegal to evict someone because they have made a complaint against your company.

Thirdly, it is unfair you say:

.... because Sunnyfield used a standard form agreement and refused to negotiate its terms.  The terms in the standard form agreement, including those relating to termination, do not take into account my sister's disability. 

Despite referring to the involvement of the New South Wales Ombudsman in your letter, you have not allowed them to complete their intervention or provide recommendations in order to resolve issues and move forward. 

Despite referring to "multiple attempts” to improve our working relationship, you have not responded in good faith, or at all, to many of my concerns and refused to enter into mediation with the Ombudsman and Community Justice Centre prior to sending through the eviction notice.

Then you make a without prejudice offer, which is that you are willing to work with Sunnyfield and the NDIS to find your sister alternative accommodation and services that are suitable for her and you request Sunnyfield confirm that she will not be evicted nor have her services withdrawn until that has happened, and:

Please confirm that you agree to these arrangements and your eviction notice is withdrawn.

Did you get legal advice before sending that letter?

ELIZA:  Yes.

MS EASTMAN:  Behind the scenes, you had immediately contacted the service support coordinator, which is another organisation, and the two of you had started to make inquiries about alternative accommodation; is that right?
 

ELIZA:  Yes.

MS EASTMAN:  You looked at     over the course of a few weeks, you made inquiries at 13 different providers?

ELIZA:  Yes.

MS EASTMAN:  What happened?

ELIZA:  It was extensive.  So, like, I was really relentless and I found that there was     like, there was a team of us, obviously, looking for alternatives.  So we drew up a list and looked at every possible accommodation service.

MS EASTMAN:  Did Sunnyfield make any of these inquiries on your behalf of other providers?

ELIZA:  No, no.  We asked    

MS EASTMAN:  Was there ever an offer for Sunnyfield to make these inquiries?

ELIZA:  No.  We asked, because I said, "Hey, do you know of anyone?", and, "Nup, nup."  So we kept looking.  So we scouted and I've got a spreadsheet and it's almost 100 lines long, of each individual agency, person, builder, everyone I engaged with, and I kept notes for every follow up, the reasons why, or if she was on a wait list, you know, who I spoke to, the wait list she was on.  I filled out numerous forms.  I also realised around that time that it was really difficult because the market just isn't there.  So we're looking for a very specialised physical home and it's actually really hard to find a physical house with a locked kitchen or even just a house that's built post 1960 that's not an open plan, but you can stick a wall in.

MS EASTMAN:  In paragraph 67, you say that most houses built after 1960 have open plan kitchens that cannot be modified to secure them properly.

ELIZA:  Correct.

MS EASTMAN:  You say in that paragraph, by 9 July you had approached by that stage more than 18 providers and none could offer suitable alternative accommodation for Melissa.

ELIZA:  Yes.

MS EASTMAN:  Two were willing to provide supports to Melissa.

ELIZA:  Yes.

MS EASTMAN:  Is this the issue about a new service provider coming in to the  
home operated by Sunnyfield?  You gave some evidence about that earlier today.

ELIZA:  No.  So that was ---

MS EASTMAN:  That's a different point?

ELIZA:  That happened earlier on, because we were at panic stations, because obviously the clock was ticking, and I sensed that it was going to be hard, nigh on impossible, because we had already searched before, when we went from the previous service provider to here.  So I had a general idea and I had some experiences --- sorry --- I had some experiences with some other organisations in the Sydney region.  And they were pretty scary.  So I knew that there were certain providers I didn't want to go near, from my own experience with them and the things that they did to Melissa.

So, just going back, so around that time I also considered --- so it started off around where she is now in Sydney, and then we got to a point where we realised actually she needs a proper assessment, like we need a formal report, in order to give prospective providers all the answers they need in a form.  So it was very tricky.  So we got an OT who actually knew Melissa from when she was a child and knew our family and she wrote a very detailed living --- I can't remember the name, it's like housing and living assessment, which we provided.  And it lays out things that are relevant for prospective providers, in terms of obviously a bit of background, her service support needs, client matching information, obviously, you know, the structure of the house, what it needed to be in terms of a robust build and an improved liveability build.  And another factor that was important was making sure that she was within a reasonable driving distance of either our Mum or myself.

And around that time I decided, when we had sort of exhausted the Sydney region, let's look at where I live in regional ---

MS EASTMAN:  So this was all in this period in the month or so after the notice?

ELIZA:  From memory, yes.

MS EASTMAN:  Because it's been an ongoing issue, hasn't it, to look for alternative accommodation, up to about when COVID hit last year?

ELIZA:  Yes, it was really --- so the two providers that were willing, they had no physical home but they were willing to provide supports, provided we could find a home.  And, yes, like that all happened, and it still --- the active looking and searching stopped when COVID struck.  But it's still there in the background, in the sense that if I find a place that's better suited, I will make steps.  But I also think about what's best for Melissa, because I know she's now --- we are now at a point where her peers have passed, staff have got to know her, the current staff at the house at the moment are probably the best she has ever had.  There are a few that's missing from there because they couldn't tolerate working under Sunnyfield and SP1 and they  
left, which is really unfortunate.  But yes, like, the search is passively going on in the background.

MS EASTMAN:  Can I take you back a little bit.

ELIZA:  Yes.

MS EASTMAN:  Back to this period of June/July 2018.

ELIZA:  Yes.

MS EASTMAN:  I want to come back to what you told the Royal Commission in your statement.  You wrote to a lot of people and organisations to see what could be done to stop Melissa losing her home?

ELIZA:  Yes.

MS EASTMAN:  That included in July 2018 writing to the NDIS Quality and Safeguards Commission about the eviction?  This is your paragraph 70.

ELIZA:  Yes.

MS EASTMAN:  And you say the person you were dealing with told you that they didn't have the power to stop Sunnyfield from evicting Melissa.  Mr Head will tell the Royal Commission later this week that the NDIS Commission emailed you, informing that it would take no further action on the complaint because the complaint was with the New South Wales Ombudsman.  So that's what Mr Head says.  I'm summarising his paragraphs 17 to 20 of his statement.  Does that accord with your recollection?

ELIZA:  Yes, the giant game of handball, it's not my problem.  That's what I know it as.

MS EASTMAN:  Then you engaged the Intellectual Disability Rights Service, which is a community legal centre, to help you fight the eviction.

ELIZA:  Yes.

MS EASTMAN:  You also had assistance, I think, from Legal Aid as well.

ELIZA:  Yes.

MS EASTMAN:  That's a lot of lawyers writing letters back and forth; is that right?

ELIZA:  Yes.

MS EASTMAN:  Then out of that process there was a proposal for a mediation.   
Ms Cuddihy says, well, the mediation didn't occur until December 2018, to fit into your schedule, and that Sunnyfield arranged and paid for formal independent mediations to be conducted by an independent agency and there was the mediation on 6 December.  Now, for you, one of the issues about the mediation was the requirement of confidentiality and that you could not disclose what occurred in the mediation.  Is that right?

ELIZA:  Yes.

MS EASTMAN:  But the outcome of the mediation was that it was agreed that Sunnyfield would continue to provide services for Melissa while you sourced alternative accommodation and services for Melissa.

ELIZA:  Yes.

MS EASTMAN:  Ms Cuddihy says, in the statement that she's going to give to the Royal Commission, that you haven't provided any update on the status of this process.  Do you agree with that?

ELIZA:  In that statement, she refers to an email, and I did wonder whether she read it before she made that statement, because in it, it says that the business of updating Sunnyfield on my progress in trying to relocate Melissa was most appropriately done by my specialist support coordinator, or Melissa's specialist support coordinator, and I left that to her.  And I do so because my opinion was I'm using every spare moment of my time, between being a first time mum of a young boy, between holding a very stressful job that takes me all over the state, and trying to advocate for Melissa's interests.  My view was, I'll tell them when I've found something, I'll tell them when I've got something concrete, because anything else would just be a waste of time.  If I know we had informal conversations, if I can skip forward to when we had a better working relationship with them now ---

MS EASTMAN:  I want to come back and keep at this end of 2018.  So you had the mediation?

ELIZA:  Yes.

MS EASTMAN:  After the mediation, do you remember receiving a letter from the Ombudsman?

ELIZA:  Yes.

MS EASTMAN:  You have included it in your statement as an annexure, at tab 34.  There is a letter from the Ombudsman to you on 18 December.  It's quite a lengthy letter, it covers a lot of issues.

ELIZA:  Yes.

 
MS EASTMAN:  But you have said the upshot of your understanding of this letter is that the Ombudsman --- this is paragraph 73 --- did not take any further action with respect to your complaints and your understanding was that the complaints were closed by the Ombudsman.  Is that right?

ELIZA:  Yes, because the timing of when the Quality and Safeguards Commission rolled out, there was a passing of the buck from the New South Wales Ombudsman to the Quality and Safeguards Commission.  My --- the benefit of their letter is that I felt supported in the sense that they reviewed all the information about the specific issues that I was raising, because one of the biggest concerns with the dissolution of the relationship with Sunnyfield is that it's distracting --- like the personal issues with me are distracting from the actual reasons I wanted to talk in the first place, which is my little sister.

And it's difficult because they were --- and the Ombudsman backed me on this, which I appreciated --- because they would tell me, they would tell me if I was being frivolous or vexatious or wasting their precious time.  I wanted to talk about that.  And I felt it at least gave me a sense of, I'm not going crazy, I'm not just being a hypochondriac, I'm not just complaining for the sake of it.  Because it's not fun.  My God, it is not fun.  I would much rather be working on positive, you know, things to implemented for Melissa, that are positive and enriching.  And I would rather be spending time talking to the staff about, you know, "What resources do you need to take her to this place?  Is there anything I can get for you?"  I would much rather do that than have to chase issues that were serious.  And so, if nothing else, their closing letter and the two women that were involved from the New South Wales Ombudsman, they at least said, "You might send a lot of emails but you're not crazy, like there are issues here, we can see them, and we've told them, we've told Sunnyfield that we believe that their responses are lacking or they are being unreasonable," or the reason why I sent so many emails was in part because they didn't respond to them in the first place.

MS EASTMAN:  The result of the mediation meant that Melissa has stayed in the house.

ELIZA:  Yes.

MS EASTMAN:  And, as you understand it, the formal eviction notice, the notice from 4 June 2018, has never been formally withdrawn; is that right?

ELIZA:  True.

MS EASTMAN:  And you tell the Royal Commission --- this is in your paragraph 78 --- that you continue to live with the threat of eviction looming over Melissa?

ELIZA: Yes.

MS EASTMAN:  Your understanding though is that the eviction could not be  
enforced now because too much time has passed but it still worries you; is that right?

ELIZA:  Oh, yeah, because ---

MS EASTMAN:  Ms Cuddihy says in her statement that she will say at the present time it's not clear to her whether you are still seeking to find alternative accommodation.  You have seen that in her statement?

ELIZA:  Yes.

MS EASTMAN:  Do you have a view how could it be that, years after this mediation concluded, both you and Sunnyfield are still not sure what's happening?  Does that come as some surprise to you?

ELIZA:  No, because the communication, while it's better now, it's still lacking.  It's still not great, in the sense that I have been following in good faith the communication instructions given to me and I've done my best to document them and, you know, my specialist support coordinator has been with me for pretty much every conversation I've had with the regional manager, to verify that account.

MS EASTMAN:  Can I ask you, the current state in terms of finding alternative accommodation is the matters you have set out in paragraph 98 of your statement.  But can I ask you this: are you still fearful that Melissa might be evicted?

ELIZA:  Yes.

MS EASTMAN:  Do you want Melissa to remain at the house?

ELIZA:  Yes.

MS EASTMAN:  Are you fearful that having to come and give evidence at the Royal Commission might, in a sense, enliven ---

ELIZA:  Absolutely.

MS EASTMAN:  --- this fear about eviction?

ELIZA:  Absolutely.  Because this could have all gone away with, "I'm sorry, we stuffed up, let's work together, let's sit down and have a chat about it."

MS EASTMAN:  Are you open ---

ELIZA:  Oh, yes.

MS EASTMAN:  --- to finding a resolution?

ELIZA:  A hundred per cent.  Honestly, if Ms Cuddihy said that to me, I would be  
like, "When do you want to meet?  Do you want me to fly up?  What can I do?"  Because I know from speaking with her, that one hour conversation that we have ever had, I remember we agreed on a lot in principle.  I don't know what's going on between --- I know what's been said between staff.  It's a little bit clearer to me after your opening statement, though.  But a lot of those perceptions I think can be turned around if there is that genuine attempt to go, "All right, let's work together, let's sort out" --- because I'm open to listening to their feedback too, because there were issues that were raised by Jennifer Luff that I've actually taken on board, like earlier on, and I've really made a concerted effort to try and work with them, and even when I don't agree with something they are doing, I'll let them run with it.  But when it doesn't work or things --- I'll speak up as I have and I'll continue to do that.

And from everything that we've gone over, in terms of agreements, policies, if they can walk the talk, I can see no reason why we can't work it out.

MS EASTMAN:  Commissioners, I'm mindful of the time.  There are still a few other matters that I need to cover, arising in Eliza's statement, and they include some events in 2018 that were referred to in opening this morning, and also Eliza's views about some of the systemic issues and some matters that she would like to raise with the Royal Commission.

Could I suggest that we adjourn now and Eliza can finish her evidence tomorrow morning, if we can start at 10.00 am tomorrow morning.

CHAIR:  Eliza, is that okay with you?

ELIZA:  Absolutely.

CHAIR:  Thank you very much for coming today and thank you for coming tomorrow.  We will resume at 10 o'clock.  Thank you, Eliza's husband, for being Eliza's support.

Could you perhaps indicate what will be happening after Eliza concludes her evidence tomorrow?

MS EASTMAN:  Then, all being well, our next witness will be Sophia, who is Carl's mother.  And she will give her evidence.  And then we propose, in terms of the order, that Jennie Piaud, the investigator, will give her evidence following Sophia.

But, Commissioners, we want to make sure that there's ample time for the witnesses to be able to give their evidence.  So if those following the webcasts and in the room can be patient with us as we work our way through the evidence, that our timing might not be 100 per cent accurate but we will stick to the order that we have indicated in the outline of the witnesses give evidence at the hearing.  Thank you.

CHAIR: Thank you.  We will adjourn until 10 o'clock tomorrow.

HEARING ADJOURNED AT 3.58 PM UNTIL 10.00 AM ON TUESDAY, 25 MAY 2021