ALZ v SafeWork

Case [2017] NSWCATAD 52

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: CMJ v Secretary Department of Family and Community Services and Wesley Dalmar [2017] NSWCATAD 52
Hearing dates: 9 February 2017
Date of orders: 13 February 2017
Decision date: 13 February 2017
Jurisdiction:Administrative and Equal Opportunity Division
Before: M Anderson, Senior Member
Decision:

1. The decision by Wesley Dalmar notified on 30 December 2016 to suspend the carer authorisations of the applicants is stayed.
2. The decision to remove the children from the care of the applicants is stayed.
3. The children shall be returned to the care of the applicants within 48 hours.
4. The applicants shall provide undertakings to Wesley Dalmar as may reasonably be requested and agreed between the parties and shall comply with conditions in accordance with the undertakings reasonably imposed pursuant to section 137 of the Children and Young Persons (Care and Protection) Act 1998 and clause 34 of the Children and Young Persons (Care and Protection) Regulation
5. In the event that there is any dispute about the undertakings or conditions the parties shall have liberty to apply for determination by the Tribunal as to the extent of those undertakings or conditions to give effect to these reasons.
6. The final hearing of these proceedings shall occur commencing at 10am on 29, 30 March 2017 and if required to continue on 18, 19, and 20 April 2017.
7. The Secretary and Wesley Dalmar shall file and serve the section 58 Administrative Decisions Review Act 1997 (NSW) documents on or before 24 February 2017.
8. The Secretary and Wesley Dalmar shall file and serve any evidence on or before 10 March 2017.
9. The Applicants shall file and serve any evidence they rely upon on or before 24 March 2017.
10. Liberty to apply upon 3 days notice to the other parties and to the Tribunal.

Catchwords: ADMINISTRATIVE LAW-review of decisions under section 245 Children and Young Persons (Care and Protection) Act 1998(NSW) and section 28 (1)(a) Community Services (Complaints, Reviews and monitoring) Act 1993 (NSW) – interim stay sought under section 60 Administrative Decisions Review Act 1997 (NSW) pending final hearing of review - primary issue is balancing of risks of harm on an interim basis- mitigation of risks possible by undertakings and conditions enforced by the agency and the Secretary- issue on final hearing is the correct and preferable decision having regard to the material before the Tribunal - interim stay granted on conditions and undertakings acceptable to the agency, the Secretary and the applicants.
Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Children and Young Persons (Care and Protection) Regulation 2012 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028
Blinko and Blinko [2015] FamCAFC 146
Deiter & Deiter [2011] FamCAFC 82
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Details
AGLC
CMJ v Secretary Department of Family and Community Services [2017] NSWCATAD 52
Case
[2017] NSWCATAD 52
Decision Date

CaseChat Overview and Summary

This case involved a challenge to decisions made by SafeWork under the Children and Young Persons (Care and Protection) Act 1998 (NSW) and the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW). The applicants, ALZ, sought an interim stay of the decisions which suspended their carer authorisations and ordered the removal of children from their care. The dispute was heard in the Land and Environment Court of New South Wales.

The court was required to decide whether to grant an interim stay of the decisions pending the final hearing of the review. The primary issue was balancing the risks of harm to the children on an interim basis, including the possibility of mitigating those risks through undertakings and conditions enforced by the agency and the Secretary. The court had to consider whether the conditions and undertakings proposed by the parties were acceptable and whether the applicants had demonstrated that the balance of convenience favoured granting the stay.

The court found that the applicants had made out a prima facie case for an interim stay. The risks of harm to the children could be mitigated by the proposed conditions and undertakings, which were acceptable to all parties. The court was satisfied that the balance of convenience favoured granting the stay, as the applicants had demonstrated that the potential harm to them if the stay was not granted outweighed the potential harm to the children if the stay was granted. The court granted the interim stay on the conditions and undertakings proposed by the parties.

The court made orders staying the decisions to suspend the carer authorisations and remove the children from the applicants' care. The children were to be returned to the applicants' care within 48 hours. The applicants were required to provide undertakings and comply with conditions as agreed between the parties and reasonably imposed by the agency and the Secretary. The court set out a timetable for the filing and serving of documents and evidence, and gave liberty to apply for further orders if necessary.

Orders

Orders of the court

1. The decision by Wesley Dalmar notified on 30 December 2016 to suspend the carer authorisations of the applicants is stayed.

2. The decision to remove the children from the care of the applicants is stayed.

3. The children shall be returned to the care of the applicants within 48 hours.

4. The applicants shall provide undertakings to Wesley Dalmar as may reasonably be requested and agreed between the parties and shall comply with conditions in accordance with the undertakings reasonably imposed pursuant to section 137 of the Children and Young Persons (Care and Protection) Act 1998 and clause 34 of the Children and Young Persons (Care and Protection) Regulation

5. In the event that there is any dispute about the undertakings or conditions the parties shall have liberty to apply for determination by the Tribunal as to the extent of those undertakings or conditions to give effect to these reasons.

6. The final hearing of these proceedings shall occur commencing at 10am on 29, 30 March 2017 and if required to continue on 18, 19, and 20 April 2017.

7. The Secretary and Wesley Dalmar shall file and serve the section 58 Administrative Decisions Review Act 1997 (NSW) documents on or before 24 February 2017.

8. The Secretary and Wesley Dalmar shall file and serve any evidence on or before 10 March 2017.

9. The Applicants shall file and serve any evidence they rely upon on or before 24 March 2017.

10. Liberty to apply upon 3 days notice to the other parties and to the Tribunal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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