CKJ v Life Without Barriers

[2016] NSWCATAD 79

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	CKJ v Life Without Barriers [2016] NSWCATAD 79
Hearing dates:	12 April 2016
Date of orders:	12 April 2016
Decision date:	12 April 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins, Principal Member
Decision:	1. Applicant’s application for a stay is refused.  2. Matter listed for further directions on 28 April 2016 at 12 noon.
Catchwords:	ADMINISTRATVE REVIEW – Child Protection – reviewable decision of the respondent, a designated agency under the Children and Young Person (Care and Protection) Act 1998, to remove foster child from the day-to-day care of an authorised carer and a decision to cancel authorisation of the carer – application by applicant for review seeking a stay of the operation of both decisions pending determination of the application – subsequent to the reviewable decisions of the respondent the Children’s Guardian imposed an interim bar under s 17 of the Child Protection (Working with Children) Act 2012 – whether Tribunal can grant a stay in the circumstances where an interim bar has been imposed
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Working with Children Act) 2012 Children and Young Persons (Care and Protection) Act Civil and Administrative Tribunal Act 2013 Community Services (Complaints, Reviews and Monitoring) Act 1993 Children and Young Persons (Care and Protection) Regulations 2012
Cases Cited:	YG & GG v Minister for Community Services [2002] NSWCA 247
Category:	Procedural and other rulings
Parties:	CKJ (Applicant) Life Without Barriers (Respondent)
Representation:	Counsel: P Braine (Applicant) R Dart (Respondent)   Solicitors: McConvill & Associates (Applicant) Care Legal (Respondent
File Number(s):	1610043
Publication restriction:	Section 65 of the Civil and Administrative Tribunal Act 2013

REASONS FOR DECISION

1. On 11 April 2016, I heard and determined an application by the applicant for a stay of the decision of the respondent to remove a foster child, child A, from her care and a decision to cancel her authorisation as a foster carer, under cl 42 of the Children and Young Persons (Care and Protection) Regulation 2012 (the Care Regulation).

2. After hearing short argument from the parties, I made an order refusing the application for a stay and made an order that the matter be listed for further directions, on 28 April 2014 at 12 noon.

3. I also undertook to provide reasons for decision as the applicant’s application gave rise to an issue as to the Tribunal’s jurisdiction to hear and determine a stay application of a decision made by a designated agency under the Care Regulation when the applicant for the stay is subject to an interim bar imposed by the Children’s Guardian, under s 17 of the Child Protection (Working With Children) Act 2012 (WWC Act).

4. These are my reasons for decision for refusing the applicant’s stay application. As I have noted below, my reasons for decision have a consequent effect on the Tribunal hearing and determining the applicant’s application for review. That application has been listed for hearing on 9 and 10 May 2016.

Background

5. The applicant was authorised as an out-of-home carer, in 2006, under s 137 of the Children and Young Persons (Care and Protection) Act 1998 (the Care Act). In February 2008, the older siblings of child A, 2 boys (then aged 7 and 5 years), were placed into the applicant’s care.

6. Child A was placed into the applicant’s care in May 2009. She was 10 days old and is now almost 7 years of age. She has complex health needs, including a chromosome disorder, epilepsy, attention deficit hyperactivity disorder, and an intellectual disability.

7. In November 2009, the Children’s Court made final care orders, under subs 79(1)(b) of the Care Act, placing child A and her brothers under the parental responsibility of the Minister.

8. On 9 August 2015, the applicant travelled overseas. The applicant’s father, an authorised carer at that time, had been assisting the applicant to look after the children and became the sole carer for the children while the applicant was overseas.

9. On 31 August 2015, the respondent’s case manager for the children received a telephone call from the applicant’s father to say the boys were “roaming the streets” and were misbehaving. Later that day the respondent’s case manger removed the boys from the care of the applicant’s father. Following their removal, the boys made a number of disclosures of allegations of physical discipline/assault by the applicant.

10. On 3 September 2015, the respondent’s case manager made a serious risk of harm report to the Family and Community Services Helpline. As a result of advice received from the Department of Family and Community Services and pending an investigation of the allegations, on 4 September 2015, the respondent removed child A from the applicant’s care. The applicant returned from overseas on that day. Child A was placed into the care of her respite carer.

11. On 4 January 2016, the respondent’s area operations manager determined that child A would not be returned to the applicant’s care.

Proceedings before the Tribunal

12. On 21 January 2016, the applicant lodged her application for review of the respondent’s decision to remove child A from her care. She also made an application for a stay of the decision to remove child A from her care pending determination of the proceedings.

13. Both matters came before me, on 27 January 2016. After hearing from both parties I made the following orders:

ORDERS:

1. Pursuant to subs 55(3)(b) of the Administrative Decisions Review Act 1997, the Tribunal is satisfied it is necessary to deal with the applicant’s review application even though the applicant did not apply for an internal review of the decision the subject of review.

2. Applicant’s application for a stay of the decision of the respondent to remove the child the subject of these proceedings from the applicant’s care is refused.

The Tribunal notes:

(a) the respondent’s undertaking not to place the child into a permanent placement pending the determination of this application; and

(b) the respondent’s agreement to immediately recommence and increase ongoing contact (including unsupervised contact) between the applicant and the child to three hours a week at times and on days that are suitable to the parties and meet the needs of the child.

3. The Registrar to urgently arrange for the appointment of a GAL to represent the child, who is age 6 ½ years with significant disabilities.

4. Respondent, in consultation with the applicant, is to appoint, as a matter of urgency, an independent suitably qualified professional to assess and report on the child’s attachment to the applicant together with the applicant’s parenting capacity to meet the needs of the child.

5. On or before 5 February 2016, the respondent to file and serve its s 58 documents.

6. On or before 19 February 2016, the applicant to file and serve any further material on which she relies.

7. On or before 26 February 2016, the respondent to file and serve the abovementioned report.

8. The matter is listed for further directions on 25 February 2016, at 3.00 pm.

9. The matter is listed for hearing in Lismore, on 14 March 2016, at 10 am for 1 day.

10. Parties granted liberty to restore the matter on 3 days notice

14. Both parties agreed that in the interests of child A, who has been in the applicant’s care for her whole life, the applicant’s application should be heard and determined as soon as possible.

15. On 19 February 2016, after receiving the investigator’s report on the allegations that had been made, the respondent determined to cancel the applicant’s authorisation. The investigation found that all six allegations referred for investigation were sustained. Of these five related to the applicant having kicked, threatened, assaulted and inappropriately and unreasonably treated the boys. The sixth sustained allegation was that the applicant had hit child A on the bottom when she was in trouble and that on one occasion she threw her Ipad at her. The allegations have at all times been denied by the applicant.

16. On 22 February 2016, the applicant made an application for a stay of the decision of the respondent to cancel her authorisation as a carer. At the directions hearing of 25 February 2016, after hearing short submissions from the parties, I refused the applicant’s application for a stay of the decision to cancel her authorisation as a carer.

17. As both decisions were made on the basis of the allegations, at the directions hearing, with the consent of the parties, I made an order that the applicant’s applications for review be heard together and the hearing date for both applications was confirmed (i.e. 14 March).

18. On 1 March 2016, the Office of the Children’s Guardian imposed an interim bar on the applicant, under s 17 of the WWC Act, and gave her notice under s 19 of that Act of a proposed cancellation of her working with children check clearance.

19. On 3 March 2016, the applicant made an application to have the matter listed for directions. The matter came before me for further directions, on 7 March 2016, where counsel for the applicant advised that contact had been made with the Office of the Children’s Guardian in regard to the interim bar. By consent, I vacated the hearing date of 14 March 2016 and adjourned the matter for two weeks so that the applicant could make further enquiries with the Office of the Children’s Guardian.

20. The matter next came before me, at a directions hearing, on 15 March 2016. At the directions hearing counsel for the applicant advised that the applicant had been informed that the Children’s Guardian would make a decision in regard to the applicant’s working with children check clearance by the end of the month. So as not to unnecessarily delay these proceedings, by consent, the matter was set down for a two day hearing, on 9 and 10 May 2016.

21. On 1 April 2016, at my request, the Registrar wrote to the parties and drew their attention to the terms of cl 42B of the Care Regulation which provided for an automatic cancellation of an authorisation where the authorised carer no longer has a working with children check clearance, or is the subject of an interim bar.

22. On 8 April 2016, the applicant filed and served her further application for a stay of the respondent’s decisions the subject of review. The grounds for the application were the changed circumstances in regard to child A’s care. On the previous day, 7 April, the applicant had made an application to the Duty Judge of the Supreme Court (Justice Kunk). The application was made in the Court’s parens patriae jurisdiction and was based on child A’s changed circumstances. I understand the application was not pressed as the applicant agreed to make a further application for a stay in the Tribunal’s administrative review jurisdiction.

The changed circumstances

23. The changed circumstances which formed the basis of the applicant’s application for a stay was child A’s recent move to another country town some two plus hours away. The reason for the move was that child A’s respite carer was moving to the other town. The respondent was at all times aware child A’s respite carer was selling her home and she was going to move.

24. The applicant was unaware of the respite carer having sold her house and when she was informed about the move she was concerned about child A being moved to a totally different environment, including attending a different school to the special needs school she has been attending for more than 6 months. The applicant was also informed that child A’s respite carer had indicated to the respondent that she would not be able to care for child A after the end of June 2016. This, the applicant pointed out would mean yet another change for child A, if she is successful or unsuccessful in her review application. The applicant argued it was in child A’s best interest to be returned to her as it was an environment that she was familiar with.

25. The respondent informed the Tribunal that arrangements had been put into place to support child A in making the move with the respite carer. The respondent also advised that steps were being taken to source another carer for the child. This I was informed could take some time due to the child’s special needs.

The Tribunal’s jurisdiction

26. The applicant’s applications for review have been made in the Tribunal’s administrative review jurisdiction: see s30 of the Civil and Administrative Tribunal Act 2013, s9 of the Administrative Decisions Review Act 1997, s 28 of the Community Services (Complaints, Reviews and Monitoring) Act 1993 and subs 245(1)(c) of the Care Act.

27. The role of the Tribunal in the administrative review jurisdiction is to decide the correct and preferable decision having regard to the material before it and any applicable law: see subs 63(1) of the Administrative Decisions Review Act. This means that the Tribunal sits in the shoes of the respondent and decides the matter afresh, as at the date of the hearing and not as at the date the decision was made: see YG & GG v Minister for Community Services [2002] NSWCA 247, at [25].

28. As I have noted, the Tribunal’s jurisdiction arises from s 28 of the Community Services (Complaints, Reviews and Monitoring) Act 1993 and subs 245(1)(c) of the Care Act. Subs 28(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act provides that a decision under s245 of the Care Act is administratively reviewable by the Tribunal. For the purpose of this application, s245 relevantly provides:

245   Decisions that are administratively reviewable by Civil and Administrative Tribunal

(1) Each of the following decisions made under or for the purposes of this Act or the regulations is an administratively reviewable decision for the purposes of section 28 (1) (a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993:

(a)  …,

(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),

(b)  …,

(c)  a decision of the relevant decision-maker to grant to, or to remove from, an authorised carer the responsibility for the daily care and control of the child or young person,

(d)  …

29. Subsection 137(2) of the Care Act sets out the regulation making powers in respect of determining applications for authorisation as a carer, the authorising of persons as a carer, the imposition of conditions of authorisation and the cancellation and suspension of authorisation as a carer under that Act. That subsection relevantly provides as follows:

137   Authorised carers

(1)  …

(1A)  …

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

(a) the making and determination of applications for authorisation,

(b) the authorisation of persons …

…

(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.

…

30. I have dealt with the relevant regulations made pursuant to subs 137(2)(e) below.

31. Subsection 60(1) of the Administrative Decisions Review Act 1997 provides that, subject to a stay being granted under that section, an application for review by the Tribunal does not affect the operation of the decision the subject of review, or prevent the taking of action to implement the decision. The Tribunal’s power to grant a stay are set out in subs 60(2) and (3) as follows:

60   Operation and implementation of decisions pending applications for administrative review

(1) …

(2)  On the application of any party to proceedings for an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application.

(3)  The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account:

(a)  the interests of any persons who may be affected by the determination of the application, and

(b)  any submission made by or on behalf of the administrator who made the decision to which the application relates, and

(c)  the public interest.

(4)  …

32. In this application the respondent has at all times opposed the applicant’s applications for a stay and, as I have noted, has endeavoured to have the matter ready for hearing as soon as possible. The applicant, on the other hand has contended that a stay should be granted pending the determination of these applications, as she denies the allegations and her home has been the only home child A has known.

Relevant legislative scheme in regard to a decision to cancel a carer’s authorisation

The Care Act and Care Regulation

33. Section 9 of the Care Act sets out the principles applicable to the administration of that Act. That section relevantly provides as follows:

“9   Principles for administration of Act

(1)  This Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount.

(2)  Subject to subsection (1), the other principles to be applied in the administration of this Act are as follows:

(a)  Wherever a child or young person is able to form his or her own views on a matter

…

(e)  If a child or young person is placed in out-of-home care, arrangements should be made, in a timely manner, to ensure the provision of a safe, nurturing, stable and secure environment, recognising the child’s or young person’s circumstances and that, the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement.

(f)  If a child or young person is placed in out-of-home care, the child or young person is entitled to a safe, nurturing, stable and secure environment. Unless it is contrary to his or her best interests, and taking into account the wishes of the child or young person, this will include the retention by the child or young person of relationships with people significant to the child or young person, including birth or adoptive parents, siblings, extended family, peers, family friends and community.

(g)  If a child or young person is placed in out-of-home care, the permanent placement principles are to guide all actions and decisions made under this Act (whether by legal or administrative process) regarding permanent placement of the child or young person.”

34. Chapter 8 of the Care Act makes provision for “out-of-home care”. Subsection 135(1) of the Care Act defines “out-of-home care” to mean residential care and control of a child/young person that is provided by a person other than a parent of the child/young person and at a place other than the child/young person’s usual home. There are 3 types of out-of-home care (see the Care Act, subs 135(2)). These are statutory out-of-home care (s 135A), supported out-of-home care (s135B), and voluntary out-of-home care (s 135C). The relevant out-of-home care in this application is statutory out-of-home care.

35. Statutory out-of-home care is that provided to a child/young person by reason of the child/young being the subject of a care order made by the Children’s Court (see Care Act, subs 135A) and that care can only be provided by a person authorised as a carer (see Care Act, subs 136(1)). And it is a designated agency, or the Children’s Guardian who authorises a person to be a carer (see Care Act, subs 38(1)). There is not dispute that the respondent is a designated agency under s 139 of the Care Act and that it had authorised the applicant as a carer.

36. Clause 30 of the Care Regulation sets out who can apply for authorisation as a carer, the information the administrator is to provide an applicant for authorisation and the circumstances where the administrator must not grant an authorisation to such person. For the purpose of the applicant’s application for a stay that clause relevantly provides:

30   Authorisation of individual caring in private capacity

(1)  A natural person may apply in writing to a designated agency to be authorised as an authorised carer.

(2)  …

(3)  ...

(4)  A designated agency must not authorise an applicant under this clause unless the agency has determined that the applicant is capable and suitable to be an authorised carer.

(5)  A designated agency must not determine under subclause (4) that an applicant is capable and suitable to be authorised as an authorised carer unless:

(a)  …,

(b)  the agency is satisfied that the applicant and any adult residing on the same property as the applicant have complied with the requirements of the Child Protection (Working with Children) Act 2012 for engaging in child-related work as an authorised carer, and

(c)  …

(6)  …”

37. The respondent’s power to cancel the authorisation of a carer is set out in cl 42 of the Care Regulation. That clause relevantly provides:

42   Cancellation or suspension of authorisations by designated agencies

A designated agency may, by notice in writing, cancel or suspend the authorisation of an authorised carer if the agency is of the opinion that the authorised carer:

(a)  is no longer a suitable person to be an authorised carer, or

(b)  has failed to comply with any condition of the authorisation, or

(c)  has failed to comply with any obligation or restriction imposed on the authorised carer by the Act or this Regulation, or

(d)  has failed to comply with a written direction to the authorised carer by the designated agency or the Children’s Guardian under section 157 (3) of the Act, or

(e)  has failed to uphold the Charter of Rights prepared under section 162 of the Act.

Note. Under section 245 (1) (a) of the Act, a decision to cancel or suspend the authorisation of an authorised carer is administratively reviewable by the Civil and Administrative Tribunal

38. I understand the respondent purported to have cancelled the applicant’s authorisation under this clause, following the investigation of the allegations the boys had made.

39. Clause 42B of the Care Regulation makes provision for the automatic cancellation of a carer’s authorisation where the working with children requirements are no longer met by an authorised carer. That clause is in the following terms:

“42B   Automatic cancellation—working with children requirements no longer met

(1)  The authorisation of a person as an authorised carer is automatically cancelled if the person:

(a)  no longer has a working with children check clearance or a current working with children application, or

(b)  is subject to an interim bar.

(2)  The cancellation of the authorisation takes effect:

(a)  when the person is notified that the person’s current working with children application has been terminated or refused or that the person’s clearance has been cancelled or that the person is subject to an interim bar, or

(b) …

(3)  The designated agency that supervises the out-of-home care of a child or young person in the care of a person whose authorisation is cancelled under this clause must, within 48 hours of becoming aware of that cancellation, ensure that the child or young person no longer resides with the person (unless the person’s authorisation is revived under this clause before the end of those 48 hours).

(4)  The authorisation of a person may be revived (by the designated agency that authorised the person) at any time within 2 years after the cancellation of the authorisation under this clause took effect, if the person:

(a)  has a working with children check clearance or a current working with children application, and

(b)  is not subject to an interim bar.”

40. As can be seen from the terms of cl 42B(4) an authorisation can be revived at any time within 2 years after the cancellation of a person’s authorisation where that person ceases to be subject to an interim bar, or the person obtains a working with children check clearance.

The WWC Act

41. The objects of the WWC Act are to require persons engaged in “child-related work” to have a working with children check clearance (a clearance) and to prevent certain persons from engaging in “child-related work”: see WWC Act, s 3.

42. Section 4 of the WWC Act provides:

“4   Safety, welfare and well-being of children to be paramount consideration

The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act”

43. “Child-related work” is defined very broadly in ss 6 and 7 of the WWC Act to include a “worker” engaged in work:

1. referred to in subsection (2) of s 6 “that involves direct contact by the worker with children”, or

2. in a child-related role referred to in subs (3) of s 6.

44. The word “worker” is defined in s 5 of the WWC Act and includes a person engaged in paid or unpaid (i.e. voluntary) child-related work. The role of an authorised carer is included as one of the child related roles in subs 6(3) (see WWC Act, subs 6(3)(c)).

45. Section 8 of the WWC Act prohibits a person working in child-related work unless the person has a working with children check clearance, or there is a current application for a clearance by the person before the Children’s Guardian. Similarly, an employer cannot employ a person in child-related work unless the person has a working with children check clearance or a current application before the Children’s Guardian: WWC Act, s 9.

46. The Children’s Guardian has no power to grant a clearance subject to conditions. Hence, once granted, the holder of the clearance is cleared to work in any child-related role: see BKE v Children’s Guardian & Anor [2015] NSWSC 523 at [27].

47. Once granted, a clearance does not cease to have effect for 5 years, unless it is cancelled or surrendered sooner: WWC Act, s 22.

48. The powers of the Children’s Guardian to cancel a clearance are set out in s 23 of the WWC Act. That section relevantly provides:

“23 Cancellation of clearances

(1) The Children’s Guardian must cancel the working with children check clearance of a person if the Children’s Guardian becomes aware that the person is a disqualified person or the Children’s Guardian is satisfied that the person poses a risk to the safety of children.”

49. The applicant is not a “disqualified person” as she has not been charged or convicted of a Schedule 2 “disqualifying offence” see WWC Act, subs 18(1).

50. Nor has her clearance been cancelled as at the time of the hearing of the applicant’s stay application. However, I understand the applicant became subject to an “assessment requirement” because, as a holder of a clearance, there was a Schedule 1 matter that applied to her: see WWC Act, s 14.

51. While I have not been provided with a copy of the decision of the Children’s Guardian, I note that included in the matters specified in Schedule 1 is a notification by the Ombudsman. This matter is found at cl 2A of Schedule 1 and is in the following terms:

“2A Notification by Ombudsman

(1) A person has been the subject of a notification of concern to the Children’s Guardian by the Ombudsman that, on a risk assessment by the Children’s Guardian, the Children’s Guardian may be satisfied that the person poses a risk to the safety of children.

(2) A "notification of concern" is a notification made by the Ombudsman as a result of concerns arising from the receipt of information by the Ombudsman in the course of exercising the Ombudsman’s function.”

52. The “assessment requirement” is a risk assessment that is conducted by the Children’s Guardian in accordance with s 15 of the WWC Act.

53. Where the Children’s Guardian has commenced a risk assessment, the Guardian can, at any time, during that assessment, determine that the person the subject of the assessment be subject to an “interim bar”: WWC Act, subs 17(1). However, the determination can only be made where the Children’s Guardian “is of the opinion that it is likely that there is a risk to the safety of children” if the person engages in child-related work: see WWC Act, subs 17(2).

54. Where a person is subject to an interim bar, the person is barred from engaging in child-related work, until the bar is revoked or for 12 months after the interim bar takes effect, whichever occurs first: see WWC Act, subs 17(1) and (4).

55. The Guardian’s decision to make the holder of a clearance subject to an interim bar is a reviewable decision by the Tribunal. However, it is not reviewable until the interim bar has been in force for more than 6 months: see WWC Act, subs 27(3).

56. If, at the conclusion of the risk assessment, the Children’s Guardian is satisfied the person to whom the Schedule 1 matter applies does pose a risk to the safety of children, she must cancel the persons clearance: see WWC Act s 23. If the Children’s Guardian is not so satisfied, she must revoke the interim bar and the person retains his/her clearance to work in child-related work.

57. A decision to cancel a person’s clearance is a reviewable decision under subs 27(2) of the WWC Act. That application must be made within 28 days after being notified of the decision.

Consideration

58. In summary, as noted in the background to these applications and the progress of them before the Tribunal, child A was removed from the applicant’s care seven months ago on the basis of a number of allegations of a risk of harm. Child A had been in the applicant’s care since she was 10 days old (i.e. her whole life of almost seven years). The allegations were denied by the applicant. However, they were found to have been sustained two months ago. The applicant presses her application for review of the respondent’s decision and seeks a stay of those decisions.

59. In my view there are a number of issues that need to be addressed in regard to the applicant’s stay application. These are:

1. what impact does the interim bar decision of the Children’s Guardian have on the applicant’s application for review of the decisions of the respondent?

2. can the Tribunal grant a stay when the applicant is the subject of an interim bar? and

3. if a stay can be granted, should a stay be granted in this case?

60. I have dealt with each of these issues below.

Impact of the interim bar decision on the applicant’s review rights under the Care Act

61. At the time the applicant lodged her application for review of the respondent’s decision to remove child A form her care (the removal decision), she was an authorised carer. Hence, the respondent’s removal decision was a reviewable decision under subs 245(1)(c) of the Care Act.

62. At the time the applicant made her application for review of the respondent’s decision to cancel her authorisation it was also a reviewable decision under subs 245(1)(a1) of the Care Act. That is, it was not a decision based on the occurrence of an event prescribed under subs 137(2)(e) of the Care Act (i.e. it was not an automatic cancellation by reason of cl 42B of the Care Regulation).

63. However, the applicant’s application for review of the removal decision became dependent on her being successful in her application for review of the decision to cancel her authorisation, as without being authorised, child A could not be returned to her care (see Care Act, subs 136(1)). As the grounds on which each decision had been made were the same, both matters were listed together. This is not unusual in applications of this kind and the Tribunal endeavours to hear and determine such matters as soon as possible in accordance with the principle in subs 36(1) of the Civil and Administrative Tribunal Act and in the interest of the child/children the subject of the removal decision and the review applicant.

64. As I indicated to the parties, in my view, while the applicant’s application for review of the removal decision and the decision to cancel her authorisation were validly made, any review of those decisions are subject to the applicant having a working with children check clearance under the WWC Act.

65. Decisions in regard to a clearance are those of the Children’s Guardian and not the respondent. The Children’s Guardian is not a party to these proceedings nor is the interim bar decision of the Children’s Guardian a reviewable decision at this time.

66. As a consequence, in my view, having regard to the terms of cl 30(5)(b) and cl 42 of the Care Regulation, while the applicant is subject to an interim bar the hearing and determination of the applicant’s application for review of the respondent’s decision to cancel her authorisation can only lead to a determination that the decision of the respondent is affirmed: Administrative Decisions Review Act, subs 63(3).

67. That is, regardless of the merits (if any) of the applicant’s applications, while the interim bar is in place a hearing and determination of these applications for review is futile. This may of course change if the interim order is revoked and the applicant’s clearance is either revived or cancelled. Until that occurs, there may be some difficulty in the applicant’s applications for review of the respondent’s decisions proceeding further at this time. This is a matter that can be addressed by the parties at the next directions hearing.

Can a stay be granted?

68. For the reasons set out above, in my view, having regard to the terms of cl 30(5)(b) and cl 42 of the Care Regulation, while the applicant is subject to an interim bar under s 17 of the WWC Act, the Tribunal’s power to grant a stay under s 60 of the Administrative Decisions Review Act is limited. That is, I find that the Tribunal must refuse any application for a stay while the applicant is subject to the interim bar.

Should a stay be granted?

69. For the reasons set out above, it is unnecessary for me to deal with the merits of the applicant’s application for a stay. However, I note the applicant has at no time suggested that Child A is at risk while in the care of her respite carer. I also note the respondent’s intention to provide additional supports to the carer and child A as a consequence of the move.

Conclusions

70. For the reasons set out above, I made the following orders:

1. The applicant’s application for a stay is refused.

2. Matter listed for further directions on 28 April 2016 at 12 noon.

**********

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

Amendments

26 April 2016 - Coversheet date of orders

Decision last updated: 26 April 2016