BKS v Secretary, Department of Family and Community Services

[2017] NSWCATAD 362

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BKS v Secretary, Department of Family and Community Services [2017] NSWCATAD 362
Hearing dates:	14 September 2017
Date of orders:	14 September 2017
Decision date:	14 September 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Anderson, Senior Member
Decision:	(1) The application is dismissed.
Catchwords:	ADMINISTRATIVE LAW- Administrative review jurisdiction – jurisdiction of the Tribunal – where children removed from the care of the applicants more than 2 years prior to the cancellation of the authorisation - where prior determination of the Tribunal.
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)
Cases Cited:	Commission for Children and Young People v FZ [2011] NSWCA 111 Roberts v Balancio (1987) 8 NSWLR 436
Category:	Principal judgment
Parties:	BKS (Applicant) Secretary Department of Family and Community Services (Respondent)
Representation:	Advocates: In Person (Applicant) V Nguyen (Respondent)   Solicitors: Legal Services Unit Department of Family and Community Services (Respondent)
File Number(s):	2017/00204822
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the name of the name of the applicant is not to be published

Reasons for Decision

Introduction

1. This matter was listed on 14 September 2017 in the Directions list for Community Services matters. The parties provided written submissions as to the issues. The matter was determined after brief argument and ex tempore reasons were given. Subsequently, a request has been made for written reasons. These are the written reasons pursuant to section 62 of the Civil and Administrative Tribunal Act 2013 (NSW).

2. I have read the submissions filed on behalf of the applicants on 13 September 2017 and the submissions filed by the respondent on 23 August 2017 in relation to this application which was filed in the Tribunal on or about 4 July 2017. That was an application for a stay and an administrative review application filed by the applicants.

Legislative Provisions relevant to the decision

3. The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Act: section 36 of the Civil and Administrative Tribunal Act.

4. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or Civil and Administrative Rules 2014 do not otherwise make provision. Additionally, the Tribunal is not bound by the rules of evidence (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: sections 38, and 67 of the Civil and Administrative Tribunal Act.

5. Procedural fairness and other aspects of natural justice, of course, are to apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436.

6. There is an automatic prohibition on the publication of names under section 65 of the Civil and Administrative Tribunal Act because this review is before the Tribunal relying upon the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW). The applicant is therefore known as BKS in this matter.

The Issue

7. The issue before the Tribunal is whether the Tribunal has jurisdiction to hear this matter or whether the Tribunal should hear this matter.

8. The applicants previously had children in their care and on 8 May 2015 the Tribunal affirmed a decision of the Secretary to remove the twin children who were in the care of the applicants at that time.

9. The Department implemented the Tribunal’s decision to remove the twins from the applicants care on or about 20 May 2015.

10. Since that time, the applicants have requested that the twins be returned to their care and the applicants filed an application in 2016 which was ultimately dismissed by the Tribunal on the basis that there was no jurisdiction in the Tribunal to hear and determine their application for a review since the decision was not a decision falling within s 245 subs (1) of the Children and Young Persons (Care and Protection) Act 1998 (NSW).

11. The administrative review jurisdiction of the Tribunal is granted by that section if the reviewable decision is a reviewable decision for the purposes of section 28 subsection (1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act.

12. Pursuant to subs (1) of s 245 of the Children and Young Persons (Care and Protection) Act in subsection (a1):

“(a1) a decision of the relevant decision-maker to cancel a person’s authorisation as an authorised carer, other than a decision to cancel an authorisation granted on a provisional basis or a decision to cancel an authorisation on the occurrence of an event prescribed under section 137 (2) (e),”

is defined as an administrative reviewable decision.

13. Section 137 subs (2)(e) of that same Act states that:

“(2) The regulations may make provision for or with respect to the following:

(e) the cancellation or suspension of an authorisation, including prescribing events, the occurrence of which, raise a presumption that an authorisation is to be cancelled.”

14. The Children and Young Persons (Care and Protection) Regulation 2012 provides at clause 42CA that there is a presumption that an authorisation will be cancelled in a number of circumstances one of which is where the person has not provided out of home care to any child or young person under the authorisation for two years or more. Subclause (2) of that regulation says that:

“A designated agency must cancel its authorisation of a person as an authorised carer on the occurrence of any such event unless the agency is satisfied that its authorisation should not be cancelled in the particular case”.

15. The authorisation has been cancelled on 17 August 2017 relying upon clause 42CA of the Regulation, that is on the basis that the twins were removed from the care responsibility of the applicants on or about 20 May 2015 which is more than two years prior to this date and the Secretary was satisfied that the authorisation should be cancelled.

16. The Tribunal has already decided in previous proceedings in 2016 that the applicants have no basis to bring the application to this Tribunal, but for the reasons which I have just given, it would appear that there is no jurisdiction for the Tribunal to hear and determine the application which has been filed by the applicants, being application 2017/00204822.

Conclusion

17. In those circumstances, the application is dismissed because the Tribunal has no jurisdiction.

Order

18. The orders of the Tribunal are that:

1. The application is dismissed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 08 December 2017