Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: BQZ v Challenge Community Services [2015] NSWCATAD 92 Hearing dates: 20 March 2015 Decision date: 07 May 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: M Anderson, Senior Member
P Foreman, General MemberDecision: 1) The decision of the relevant decision maker, William Wain, Manager Casework with Challenge Children’s Services, made on or about 13 January 2015 to remove from the applicant the responsibility for the daily care and control of the child the subject of this application is set aside.
2) The Tribunal makes a decision in substitution for the decision set aside, that the daily care and control of the child the subject of this application is granted to the applicant under section 245(1)(c) of the Children and Young Persons (Care and Protection) Act 1998.Catchwords: ADMINISTRATIVE LAW-review under section 63 Administrative Decisions Review Act 1997-decision made under section 245 Children and Young Persons (Care and Protection) Act 1998 (NSW) to remove child from the care of his current authorised carer- assessment of strong and secure attachment to carer and extended family- evidence of psychologist about transition of placement placed excessive weight upon inapplicable provisions of section 13 Children and Young Persons (Care and Protection) Act 1998- evidence of Aboriginal elder supporting placement of the child in his ‘country’ and that of his family with support from local Aboriginal community- what the correct and preferable decision is having regard to the material before the Tribunal – child’s best interests enhanced by remaining in his current placement- substituted decision. Legislation Cited: Administrative Decisions Review Act 1997(NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW)
Court Suppression and Non-Publication Orders Act 2010 (NSW)
Uniform Civil Procedure Rules 2005, Schedule 7Cases Cited: AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028
Kostas v HIA Insurance Services Pty Limited [2010] HCA 32
PR v Department of Community Services [2009] NSWADT 277
Re Kerry (No 2) [2012] NSWCA 127
Roberts v Balancio (1987) 8 NSWLR 436
YG & GG v Minister for Community Services [2002] NSWCA 247Texts Cited: Anderson M, (2014) “Protecting the rights of Indigenous and Multicultural children and preserving their cultures in fostering and adoption.” Family Court Review 52:6-27
Barnardos Australia, (2013) Practice Paper on Attachment
Boris N, Fueyo M, Zeanah C, (1997) “The Clinical Assessment of Attachment in Children Under Five.” J Am Acad Child Adolesc Psychiatry 36:2. 291-293
Dozier M, Zeanah C, Bernard K (2013) “Infants and Toddlers in Foster Care.” Child Development Perspectives 7: 166-171
Zeanah C, Berlin L, Boris N (2011) “Practitioner Review: Clinical applications of attachment theory and research for infants and young children.” Journal of Child Psychology and Psychiatry 52:8:819-833
Zeanah C, Gunnar M, McCall R, Kreppner J, Fox N (2011) “Sensitive Periods.” Monographs of the Society for Research in Child Development 147-162Category: Principal judgment Parties: BQZ (Applicant)
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- AGLC
- BQZ v Challenge Community Services [2015] NSWCATAD 92
- Case
- [2015] NSWCATAD 92
- Decision Date
CaseChat Overview and Summary
The applicant, BQZ, sought judicial review of a decision made by William Wain, Manager Casework with Challenge Children’s Services, to remove the responsibility for the daily care and control of a child from BQZ. The decision was made under the Children and Young Persons (Care and Protection) Act 1998 (NSW). The application was heard in the NSW Civil and Administrative Tribunal.
The primary legal issue was whether the Tribunal should substitute its own decision for that of the decision maker. The applicant argued that the decision maker had placed excessive weight on the evidence of a psychologist concerning the child's transition of placement and had incorrectly applied the provisions of section 13 of the Children and Young Persons (Care and Protection) Act 1998. The applicant further argued that the evidence of an Aboriginal elder supporting the placement of the child in his ‘country’ and that of his family with support from the local Aboriginal community should have been given greater weight. The applicant contended that the child's best interests were enhanced by remaining in his current placement.
The Tribunal found that the decision maker had indeed placed excessive weight on the evidence of the psychologist and had incorrectly applied the provisions of section 13 of the Children and Young Persons (Care and Protection) Act 1998. The Tribunal also found that the evidence of the Aboriginal elder supporting the placement of the child in his ‘country’ and that of his family with support from the local Aboriginal community should have been given greater weight. The Tribunal concluded that the child’s best interests were enhanced by remaining in his current placement.
Accordingly, the Tribunal set aside the decision of the decision maker and substituted its own decision that the daily care and control of the child is granted to the applicant under section 245(1)(c) of the Children and Young Persons (Care and Protection) Act 1998.
The primary legal issue was whether the Tribunal should substitute its own decision for that of the decision maker. The applicant argued that the decision maker had placed excessive weight on the evidence of a psychologist concerning the child's transition of placement and had incorrectly applied the provisions of section 13 of the Children and Young Persons (Care and Protection) Act 1998. The applicant further argued that the evidence of an Aboriginal elder supporting the placement of the child in his ‘country’ and that of his family with support from the local Aboriginal community should have been given greater weight. The applicant contended that the child's best interests were enhanced by remaining in his current placement.
The Tribunal found that the decision maker had indeed placed excessive weight on the evidence of the psychologist and had incorrectly applied the provisions of section 13 of the Children and Young Persons (Care and Protection) Act 1998. The Tribunal also found that the evidence of the Aboriginal elder supporting the placement of the child in his ‘country’ and that of his family with support from the local Aboriginal community should have been given greater weight. The Tribunal concluded that the child’s best interests were enhanced by remaining in his current placement.
Accordingly, the Tribunal set aside the decision of the decision maker and substituted its own decision that the daily care and control of the child is granted to the applicant under section 245(1)(c) of the Children and Young Persons (Care and Protection) Act 1998.
Orders
Orders of the court
1) The decision of the relevant decision maker, William Wain, Manager Casework with Challenge Children’s Services, made on or about 13 January 2015 to remove from the applicant the responsibility for the daily care and control of the child the subject of this application is set aside.
2) The Tribunal makes a decision in substitution for the decision set aside, that the daily care and control of the child the subject of this application is granted to the applicant under section 245(1)(c) of the Children and Young Persons (Care and Protection) Act 1998.
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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