AB v X Services

[2023] NSWSC 676

Supreme Court

New South Wales

Medium Neutral Citation:

AB v X Services [2023] NSWSC 676

Hearing dates:

2 June 2023

Decision date:

02 June 2023

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1)   The defendant’s decisions of 8 February 2023 and 22 February 2023 to cancel the plaintiffs’ authorisations as authorised carers are quashed.

(2)   The Court makes no order as to costs.

(3)   The Court notes the consent statement at Annexure A of the Consent Orders filed in the Court.

Catchwords:

ADMINISTRATIVE LAW – jurisdictional error – consent of parties – agreed facts – Court satisfied of error – orders in the nature of certiorari granted

Category:

Principal judgment

Parties:

AB (First Plaintiff)
BB (Second Plaintiff)
X Services (Defendant)

Representation:

Counsel:
B Tronson (Plaintiffs)
C Sparling (Defendant)

Solicitors:
Watts McCray Lawyers (Plaintiffs)
Mills Oakley (Defendant)

File Number(s):

2023/00103243

Publication restriction:

The Court extends the Suppression Order to the name of the plaintiffs and the defendant, and anonymises names as AB and BB v X Services.

ex tempore JUDGMENT

1. HIS HONOUR: Before the Court is a Summons, the resolution of which is the subject of consent of the parties. The parties seek approval of consent orders filed. The consent orders are for the quashing of an administrative decision relating to cancellation of authorisation for the plaintiffs to be foster carers.

2. The order originally sought is that the defendant’s decision, the defendant being X Services, to cancel the plaintiffs’ authorisation as authorised foster carers be quashed. No order for costs is sought, noting the parties consent statement as to the facts and/or issues.

3. The orders that are sought will plainly resolve these proceedings. There may be remainder issues that need to be dealt with under the Act, but that is not a matter for the Court. The Court is dealing only with the defendant’s decision to quash the plaintiffs’ authorisation.

4. Relevantly, the factual background is as follows; Mr AB and his wife, BB, for present purposes were the foster carers of a child referred to as CC, from 2006, when the young person was an infant, until September 2022. It is, to say the least, a significant period.

5. On 8 February 2023, the defendant made a decision to cancel the authorisation as authorised carers of Mr AB and Mrs BB. The two plaintiffs sought an internal review of that decision. The cancellation was ultimately upheld on 22 February 2023 by the defendant. I refer to that decision as the “Cancellation Decision”.

6. The plaintiffs filed a Summons which commenced these proceedings on 30 March 2023 and sought judicial review of the Cancellation Decision. The defendant filed a Notice of Appearance on 10 April 2023. On 18 May 2023, the parties approached the Common Law Registrar seeking consent orders which are the orders now before the Court.

7. Given the nature of the relief sought, the Common Law Registrar, either as a matter of caution or as a result of the limitations on the powers of the Registrar, referred the matter to the list for the Duty Judge and that is the basis on which I now hear the matter.

8. There is a Joint Tender Bundle which is relied upon by the parties. The Joint Tender Bundle, which has been marked Exhibit A, includes a letter from the defendant to the plaintiffs of 1 September 2010. The letter reflects the plaintiffs’ ongoing approval as foster carers with the defendant for one child up to 18 years of age. There is a second letter from the defendant to the plaintiffs of 29 May 2012. This letter confirms the approval as foster carers with the defendant’s out of home care programme.

9. There is a third letter dated approximately December 2014 but otherwise undated which reflects the plaintiffs’ ongoing approval as foster carers with the defendant again for one child up to 18 years of age. The next letter is a letter from the defendant to the plaintiffs of 24 October 2019. This letter confirms the plaintiffs’ authorisation was reissued.

10. The letter from the defendant to the plaintiffs of 8 February 2023 is also included in Exhibit A. This letter states the plaintiffs’ authorisation as foster carers was withdrawn following their surrendering care of CC in September 2022. The letter from the plaintiffs to the defendant of 20 February 2023 is included and that letter requests an internal review of the decision to withdraw the plaintiffs’ authorisation as foster carers.

11. There is then an email exchange between the defendant and the plaintiffs of about 22 February 2023. The email communicates the cancellation decision. It states that the placement of CC ended on 23 September 2022. It seems that CC was removed so that the plaintiffs could have some respite and allegations made by the plaintiffs against the defendant could be investigated. They wished to regain care of the young person after a break.

12. On 11 November 2022, CC was accepted into an Intensive Therapeutic Care Significant Disability placement, which was assessed as meeting CC’s long-term needs. CC wanted to maintain contact with the plaintiffs but did not want to continue to live with them.

13. The defendant cancelled the plaintiffs’ authorisation, because it held the view that they were authorised specifically to care for CC, which was no longer happening. The defendant clarified that CC was not removed from the care of the plaintiffs. He had a period of respite care and was then accepted into a more suitable permanent placement.

14. Frankly, from the Court’s perspective, I am surprised that it was so long before respite care was needed and is a generally important aspect of care of a person who is otherwise under a profound disability. In any event, the plaintiffs were encouraged to remain part of CC’s life.

15. There is also before the Court a copy of a sealed Application for Administrative Review filed in NCAT by the plaintiffs against the defendant, that being an application of 22 March 2023. The application was lodged by the plaintiffs after the commencement of the proceedings in this Court. The plaintiffs sought review of the decision to remove CC from their care and noted that CC had lived with them almost all his life and has severe health issues which are best dealt with by the plaintiffs, as they understand his needs and care requirements. They also sought review of the decision to place CC into the placement to which I earlier referred.

16. On 30 March 2023, NCAT issued a suppression order over the names of all persons involved, a non-publication order in respect of the proceeding, listed the matter for directions on 6 July 2023 and noted that the applicants had also commenced judicial review proceedings.

17. Frankly, I congratulate the parties on reaching the consent that they have. The consent orders are based upon a consent statement which is appropriate for me to summarise.

18. The first ground of review upon which the plaintiffs rely contends that the defendant’s decision, that is the cancellation decision to which I have earlier referred, being the decision of 22 February 2023, which affirmed the earlier decision of 8 February 2023 which cancelled the plaintiffs’ authorisation as authorised carers, is invalid, because the defendant had no power to make that decision. It is said and the material supports the fact that the defendant made the cancellation decision including on the basis that the plaintiffs had not provided out of home care to a particular young person, being CC, since 23 September 2022. That consideration is relevant to a decision to cancel the authorisation of an authorised carer where that decision is made under one of the following grounds:

1. where the carer for the particular child or young person relates to out of home care for that particular person, as provided for by reg 39(1)(a) of the Children and Young Persons (Care and Protection) Regulation 2022 (NSW) (“the Regulation”); or

2. where the carer has not provided care to that child or young person for a period of two years or more as provided for by reg 39(1)(b) of the Regulation; or

3. where a designated agency, such as the defendant, has formed the view that the authorised carer is no longer a suitable person to be an authorised carer, pursuant to reg 35(i) of the Regulation.

19. The plaintiffs contend that their authorisation to be authorised carers was a general authorisation, that is, it was not an authorisation which related only to the out of home care of CC. As at 8 February 2023 and 22 February 2023, a period of two years had not elapsed since they, the plaintiffs, had provided out of home care to CC, and therefore to a child or young person in their care.

20. The defendant now accepts it could not satisfy the criteria to rely on reg 39(1)(a) as to the status of the plaintiffs’ authorisation, and accepts in those circumstances that it did not have the power to make the cancellation decision, and the cancellation decision was invalid.

21. Accordingly, the parties agree that the appropriate order is the orders that are being proposed.

22. I have looked at the regulations and the facts. As the facts are uncontentious, it seems to me that the consent statement of the parties is an accurate reflection of the public duty that is required in terms of the making of a decision or limiting that which can be made under the Act or Regulations. As a consequence, the Court accepts the appropriateness and the jurisdiction to make the orders that are sought. Orders in the nature of certiorari are appropriate on the basis of jurisdictional error. The error is taking into account an irrelevant consideration; mistake of fact; misunderstanding the task before the defendant; and failing to take into account a relevant mandatory consideration, being the unlimited authorisation possessed by the plaintiffs.

23. The Court makes the following orders by consent:

1. The defendant’s decisions of 8 February 2023 and 22 February 2023 to cancel the plaintiffs’ authorisations as authorised carers are quashed.

2. The Court makes no order as to costs.

3. The Court notes the consent statement at Annexure A of the Consent Orders filed in the Court.

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Decision last updated: 20 June 2023