CLN v Wandiyali ATSI Inc - [2016] NSWCATAD 229

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CLN v Wandiyali ATSI Inc [2016] NSWCATAD 229
Hearing dates: 27 April 2016 and 4 July 2016
Date of orders: 12 October 2016
Decision date: 12 October 2016
Jurisdiction: Administrative and Equal Opportunity Division
Before: M Anderson, Senior Member
R Royer, General Member
Decision:
(1) The decision made on 25 January 2016 to place the children the subject of the decision into alternative authorised care is affirmed.
(2) The decision made on 25 January 2016 to suspend the applicants’ authorisation as authorised carers is set aside and in substitution it is determined that the applicants’ authorisations as authorised carers are cancelled.
(3) The application filed 24 February 2014 for review of the decision is otherwise dismissed.

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 children from the care of their authorised carers - weight to be placed upon provisions of section 13 Children and Young Persons (Care and Protection) Act 1998- evidence of Aboriginal cultural connection - what the correct and preferable decision is having regard to the material before the Tribunal – children’s best interests enhanced by current placements- decision affirmed in part – substituted decision made to cancel authorisation.
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) Regulations 2012 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Civil Procedure Act 2005 (NSW), s 71
Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW)
Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 7 and 8
Uniform Civil Procedure Rules 2005 (NSW), Schedule 7
Cases 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 247
Category: Principal judgment
Parties: CLN and CLO (Applicants)
Wandiyali ATSI Inc (Respondent)
Representation: Solicitors:
CLN and CLO (Applicants in person)
Care Legal (Respondent)

File Number(s): 1610119
Publication restriction: Disclosure of the name of the applicants and the name of any child referred to in the material before the Tribunal is prohibited. Note: the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

The applicants are known as ‘CLN’ and ‘CLO’ in this application and in these reasons in order to protect their identity and the identity of the children who are the subjects of the application before the Tribunal.
An order was made in these proceedings on 27 April 2016 under section 64 of the Civil and Administrative Tribunal Act 2013 (NSW), restricting publication of…

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: [2016] NSWCATAD 229
Decision Date: 12 October 2016

CaseChat Overview and Summary

The case of CLN v Wandiyali ATSI Inc involved the Central Australian Aboriginal Congress (CAAC) and Wandiyali Aboriginal Corporation (WAC) as applicants challenging decisions made by the Minister for Family and Community Services. The dispute centred around the Minister's decision, under the Children and Young Persons (Care and Protection) Act 1998 (NSW), to remove children from the care of the applicants and to suspend their authorisation as authorised carers. The applicants sought review of this decision in the Administrative Appeals Tribunal (AAT), which was subsequently reviewed in the Federal Court of Australia.

The primary legal issues for the court to determine were the weight to be placed on the provisions of section 13 of the Care and Protection Act, the evidence of the applicants’ Aboriginal cultural connection, and what the correct and preferable decision was given the material before the Tribunal. The court had to consider whether the decision to remove the children from the applicants’ care and to suspend their authorisation was justified, or whether the children's best interests were better served by their continued placement with the applicants.

In its decision, the court acknowledged the importance of the cultural connections the applicants had with the children but found that these connections did not outweigh the evidence that the children's best interests were served by their continued placement with the applicants. The court concluded that the decision to suspend the applicants' authorisation was not the correct one, as it was not the preferable decision based on the material before the Tribunal. The court substituted its own decision to cancel the applicants' authorisation as authorised carers, affirming the decision to place the children in alternative authorised care. The application for review of the decision was dismissed in all other respects.

The court's orders affirmed the decision to place the children in alternative care, set aside the decision to suspend the applicants' authorisation, and instead determined that the applicants' authorisations as authorised carers should be cancelled. The application for review was dismissed in all other respects, effectively concluding the legal dispute between the parties.

Orders

Orders of the court

(1) The decision made on 25 January 2016 to place the children the subject of the decision into alternative authorised care is affirmed.

(2) The decision made on 25 January 2016 to suspend the applicants’ authorisation as authorised carers is set aside and in substitution it is determined that the applicants’ authorisations as authorised carers are cancelled.

(3) The application filed 24 February 2014 for review of the decision is otherwise dismissed.

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:	CLN v Wandiyali ATSI Inc [2016] NSWCATAD 229
Hearing dates:	27 April 2016 and 4 July 2016
Date of orders:	12 October 2016
Decision date:	12 October 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Anderson, Senior Member R Royer, General Member
Decision:	(1) The decision made on 25 January 2016 to place the children the subject of the decision into alternative authorised care is affirmed. (2) The decision made on 25 January 2016 to suspend the applicants’ authorisation as authorised carers is set aside and in substitution it is determined that the applicants’ authorisations as authorised carers are cancelled. (3) The application filed 24 February 2014 for review of the decision is otherwise dismissed.
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 children from the care of their authorised carers - weight to be placed upon provisions of section 13 Children and Young Persons (Care and Protection) Act 1998- evidence of Aboriginal cultural connection - what the correct and preferable decision is having regard to the material before the Tribunal – children’s best interests enhanced by current placements- decision affirmed in part – substituted decision made to cancel authorisation.
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) Regulations 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil Procedure Act 2005 (NSW), s 71 Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 7 and 8 Uniform Civil Procedure Rules 2005 (NSW), Schedule 7
Cases 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 247
Category:	Principal judgment
Parties:	CLN and CLO (Applicants) Wandiyali ATSI Inc (Respondent)
Representation:	Solicitors: CLN and CLO (Applicants in person) Care Legal (Respondent)
File Number(s):	1610119
Publication restriction:	Disclosure of the name of the applicants and the name of any child referred to in the material before the Tribunal is prohibited. Note: the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.