BWO and BWP v Barnardos Australia - [2015] NSWCATAD 216

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: BWO and BWP v Barnardos Australia [2015] NSWCATAD 216
Hearing dates: 23 July 2015
Date of orders: 21 October 2015
Decision date: 21 October 2015
Jurisdiction: Administrative and Equal Opportunity Division
Before: M W Anderson, Senior Member
M Bolt, General Member
R Royer, General Member
Decision:
(1)That the decision made on or about 28 April 2015 and notified to the applicants by letter dated 4 May 2015 to not proceed further with their application to provide permanent care with a view to adoption for the child currently placed in a crisis placement with the applicants through the Barnardos Temporary Family Care program on the basis of their financial circumstances in relation to the applicants’ capacity to adequately provide for the child’s needs, is set aside.
(2)The respondent is to proceed further with the assessment application of the applicants to provide permanent care with a view to adoption for the child currently placed in a crisis placement with the applicants through the Barnardos Temporary Family Care program on the basis that the requirement for the financial circumstances in relation to the applicants’ capacity to adequately provide for the child’s needs is satisfied.
(3)It is noted that by reason of the Order made on 21 May 2015 pursuant to section 55 (3) of the Administrative Decisions Review Act 1997 (NSW), the Tribunal is satisfied that it is necessary to deal with this application notwithstanding an internal review application has not been made.

Catchwords: ADMINISTRATIVE LAW-review under section 63 Administrative Decisions Review Act 1997-decision made under section Adoption Act 2000 (NSW) and review jurisdiction conferred by clause 72 (1) (a) of the Adoption Regulation 2003 (NSW) (repealed) or clause 125(1)(a) and 125(1)(b) of the Adoption Regulation 2015 (NSW) - current authorised carer seeking to be assessed to provide permanent care with a view to adoption as an adoptive parent - assessment of carer’s financial position – carer has the care of a biological child as well as the care of the child placed under the Children and Young Persons (Care and Protection) Act 1998 (NSW)- correct and preferable decision having regard to the material before the Tribunal – child’s best interests enhanced by remaining in current placement and the full assessment to provide permanent care with a view to adoption as an adoptive parent to be undertaken- substituted decision.
Legislation Cited: Adoption Act 2000 (NSW)
Adoption Regulation 2003 (NSW)(repealed)
Adoption Regulation 2015 (NSW)
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)
Evidence Act 1995 (NSW)
Interpretation Act 1987 (NSW)
Subordinate Legislation Act 1989 (NSW)
Uniform Civil Procedure Rules 2005, Schedule 7
Cases Cited: ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18
ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1
Application of PL, re TB and FB

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: [2015] NSWCATAD 216
Decision Date: 21 October 2015

CaseChat Overview and Summary

BWO and BWP, applicants, sought judicial review of a decision by Barnardos Australia, the respondent, to decline their application to provide permanent care with a view to adoption of a child currently in their care under the Barnardos Temporary Family Care program. The dispute was heard by the NSW Civil and Administrative Tribunal, and the applicants argued that the respondent’s decision was incorrect and preferable because it failed to consider the applicants’ financial circumstances and their capacity to adequately provide for the child’s needs. The applicants also have a biological child in their care, which they claimed was relevant to the assessment of their financial position. The applicants sought orders setting aside the respondent’s decision and directing the respondent to proceed further with their application.

The legal issues before the Tribunal were whether the respondent’s decision was correct and preferable, and whether the Tribunal had jurisdiction to review the decision. The applicants argued that the Tribunal had jurisdiction to review the decision under the Administrative Decisions (Judicial Review) Act 1997 (NSW) and the Adoption Act 2000 (NSW). The respondent contended that the Tribunal did not have jurisdiction to review the decision because the applicants had not made an internal review application. However, the Tribunal found that it had jurisdiction to review the decision because the applicants had not been given an opportunity to make an internal review application.

The Tribunal found that the respondent’s decision was incorrect and preferable because it failed to consider the applicants’ financial circumstances and their capacity to adequately provide for the child’s needs. The Tribunal held that the applicants had satisfied the requirement for the financial circumstances in relation to their capacity to adequately provide for the child’s needs. The Tribunal also found that the child’s best interests were enhanced by remaining in the current placement with the applicants, and that the full assessment to provide permanent care with a view to adoption as an adoptive parent should be undertaken.

The orders made by the Tribunal were that the decision made by the respondent on or about 28 April 2015 be set aside, and that the respondent proceed further with the applicants’ application to provide permanent care with a view to adoption for the child currently in their care. The Tribunal noted that it was satisfied that it was necessary to deal with the application notwithstanding that an internal review application had not been made.

Orders

Orders of the court

(1)That the decision made on or about 28 April 2015 and notified to the applicants by letter dated 4 May 2015 to not proceed further with their application to provide permanent care with a view to adoption for the child currently placed in a crisis placement with the applicants through the Barnardos Temporary Family Care program on the basis of their financial circumstances in relation to the applicants’ capacity to adequately provide for the child’s needs, is set aside.

(2)The respondent is to proceed further with the assessment application of the applicants to provide permanent care with a view to adoption for the child currently placed in a crisis placement with the applicants through the Barnardos Temporary Family Care program on the basis that the requirement for the financial circumstances in relation to the applicants’ capacity to adequately provide for the child’s needs is satisfied.

(3)It is noted that by reason of the Order made on 21 May 2015 pursuant to section 55 (3) of the Administrative Decisions Review Act 1997 (NSW), the Tribunal is satisfied that it is necessary to deal with this application notwithstanding an internal review application has not been made.

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:	BWO and BWP v Barnardos Australia [2015] NSWCATAD 216
Hearing dates:	23 July 2015
Date of orders:	21 October 2015
Decision date:	21 October 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M W Anderson, Senior Member M Bolt, General Member R Royer, General Member
Decision:	(1)That the decision made on or about 28 April 2015 and notified to the applicants by letter dated 4 May 2015 to not proceed further with their application to provide permanent care with a view to adoption for the child currently placed in a crisis placement with the applicants through the Barnardos Temporary Family Care program on the basis of their financial circumstances in relation to the applicants’ capacity to adequately provide for the child’s needs, is set aside. (2)The respondent is to proceed further with the assessment application of the applicants to provide permanent care with a view to adoption for the child currently placed in a crisis placement with the applicants through the Barnardos Temporary Family Care program on the basis that the requirement for the financial circumstances in relation to the applicants’ capacity to adequately provide for the child’s needs is satisfied. (3)It is noted that by reason of the Order made on 21 May 2015 pursuant to section 55 (3) of the Administrative Decisions Review Act 1997 (NSW), the Tribunal is satisfied that it is necessary to deal with this application notwithstanding an internal review application has not been made.
Catchwords:	ADMINISTRATIVE LAW-review under section 63 Administrative Decisions Review Act 1997-decision made under section Adoption Act 2000 (NSW) and review jurisdiction conferred by clause 72 (1) (a) of the Adoption Regulation 2003 (NSW) (repealed) or clause 125(1)(a) and 125(1)(b) of the Adoption Regulation 2015 (NSW) - current authorised carer seeking to be assessed to provide permanent care with a view to adoption as an adoptive parent - assessment of carer’s financial position – carer has the care of a biological child as well as the care of the child placed under the Children and Young Persons (Care and Protection) Act 1998 (NSW)- correct and preferable decision having regard to the material before the Tribunal – child’s best interests enhanced by remaining in current placement and the full assessment to provide permanent care with a view to adoption as an adoptive parent to be undertaken- substituted decision.
Legislation Cited:	Adoption Act 2000 (NSW) Adoption Regulation 2003 (NSW)(repealed) Adoption Regulation 2015 (NSW) 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) Evidence Act 1995 (NSW) Interpretation Act 1987 (NSW) Subordinate Legislation Act 1989 (NSW) Uniform Civil Procedure Rules 2005, Schedule 7
Cases Cited:	ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18 ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1 Application of PL, re TB and FB