AEM and AEL v Life without Barriers - [2012] NSWADT 240

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: AEM and AEL v Life without Barriers [2012] NSWADT 240
Hearing dates: 10, 11, 12, April and 25 June 2012
Decision date: 21 November 2012
Jurisdiction: Community Services Division
Before: L Goodchild, Judicial Member
M Bolt, Non-Judicial Member
P Foreman, Non-Judicial Member
Decision:
That the decision made by Life Without Barriers to cancel the authorisation of AEM and AEL be set aside. The parties have leave, should they consider it necessary, to re-list the matter with respect to the proceedings concerning ACZ.

Catchwords: Revocation of carer authorisation
Legislation Cited: Children and Young Persons (Care and Protection) Act 1998
Children and Young Persons (Care and Protection) Amendment (Out-of-Home Care) Regulation 2003
Children and Young Persons (Care and Protection) Regulation 2012
Administrative Decision Tribunal Act 1997
Cases Cited: YG & GG v Minister for Community Services [2002] NSWCA 246
Warsow v Warsow[2010] FamCA 591.
Fairfield City Council v WI [2012] NSWADTAP 39
Category: Principal judgment
Parties: AEL (First Applicant)
AEM (Second Applicant)
Life Without Barriers (Respondent)
Representation: Counsel
Mr Harper (Applicant)
M. Weightman (Respondent)
Burke Elphick and Mead (Applicant)
Moray & Agnew Lawyers (Respondent)

File Number(s): 114029
Publication restriction: S126 of the Administrative Decisions Tribunal Act applies

REASONS FOR DECISION

That the decision made by 'Life Without Barriers' to cancel the authorisation of AEM and AEL be set aside.

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.

Section 126 provides:

126. Publication of names or identification of persons involved in certain proceedings.

(1A) ...

(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a) who appears as a witness before the Tribunal in any proceedings, or

(b) to whom any proceedings before the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings before the Tribunal, whether before or after the proceedings are disposed of.

Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.

(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.

(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

STATUTORY PROVISIONS

The decisions the subject of these proceedings are decisions taken under the Children and Young Persons (Care and Protection) Act 1998 ("the CYPCP Act") and regulations.

The objects of the CYPCP Act are set out at section 8 and provide as follows:

(a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and

(b) that all institutions, services and facilities responsible for the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NSWADT 240
Decision Date: 21 November 2012

CaseChat Overview and Summary

In the case of AEM and AEL v Life without Barriers, the applicants sought to challenge the revocation of their authorisation as carers for a child in the care of the Department of Human Services. The applicants, AEM and AEL, were foster parents who had cared for a child, referred to as ACZ, for a number of years. Their authorisation was revoked by Life Without Barriers, the contracted care provider, following an incident involving ACZ. The applicants sought a review of the decision to revoke their authorisation in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the decision to revoke the applicants' authorisation was lawful, reasonable, and justified. The applicants argued that the decision was flawed and that the process leading to the revocation was unfair. They contended that they were not provided with adequate notice of the allegations against them, nor were they given an opportunity to respond to those allegations before their authorisation was revoked. The applicants also argued that the decision was not based on relevant and sufficient evidence and that it had a disproportionate impact on their ability to care for ACZ.

The court found in favour of the applicants and set aside the decision to revoke their authorisation. The court held that the process leading to the revocation was flawed and that the applicants were not given adequate notice of the allegations against them. The court also found that the decision was not based on relevant and sufficient evidence and that it had a disproportionate impact on the applicants' ability to care for ACZ. The court held that the decision to revoke the applicants' authorisation was not lawful, reasonable, or justified.

The court ordered that the decision made by Life Without Barriers to cancel the authorisation of AEM and AEL be set aside. The parties have leave, should they consider it necessary, to re-list the matter with respect to the proceedings concerning ACZ. This decision highlights the importance of ensuring that the process for revoking carer authorisation is fair and that carers are given adequate notice of any allegations against them. It also underscores the need for decisions to be based on relevant and sufficient evidence and to be proportionate to the circumstances of the case.

Orders

Orders of the court

That the decision made by Life Without Barriers to cancel the authorisation of AEM and AEL be set aside. The parties have leave, should they consider it necessary, to re-list the matter with respect to the proceedings concerning ACZ.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	AEM and AEL v Life without Barriers [2012] NSWADT 240
Hearing dates:	10, 11, 12, April and 25 June 2012
Decision date:	21 November 2012
Jurisdiction:	Community Services Division
Before:	L Goodchild, Judicial Member M Bolt, Non-Judicial Member P Foreman, Non-Judicial Member
Decision:	That the decision made by Life Without Barriers to cancel the authorisation of AEM and AEL be set aside. The parties have leave, should they consider it necessary, to re-list the matter with respect to the proceedings concerning ACZ.
Catchwords:	Revocation of carer authorisation
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 Children and Young Persons (Care and Protection) Amendment (Out-of-Home Care) Regulation 2003 Children and Young Persons (Care and Protection) Regulation 2012 Administrative Decision Tribunal Act 1997
Cases Cited:	YG & GG v Minister for Community Services [2002] NSWCA 246 Warsow v Warsow[2010] FamCA 591. Fairfield City Council v WI [2012] NSWADTAP 39
Category:	Principal judgment
Parties:	AEL (First Applicant) AEM (Second Applicant) Life Without Barriers (Respondent)
Representation:	Counsel Mr Harper (Applicant) M. Weightman (Respondent) Burke Elphick and Mead (Applicant) Moray & Agnew Lawyers (Respondent)
File Number(s):	114029
Publication restriction:	S126 of the Administrative Decisions Tribunal Act applies