CNO v Life Without Barriers

[2016] NSWCATAD 313

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	CNO v Life Without Barriers [2016] NSWCATAD 313
Hearing dates:	21 November 2016
Date of orders:	21 November 2016
Decision date:	21 November 2016
Before:	Mullane ADCJ, Principal Member R Royer, General Member
Decision:	1. The Amended Application for Review filed 10 August 2016 is dismissed. 2. The Tribunal requests a transcript of today’s hearing.
Catchwords:	Decisions by authority not to return child to authorised Carers and revoking appointments as authorised carers, Review application, Applicants provide no evidence, seek adjournment of hearing, previous adjournment application refused because of false evidence, health problem, no likelihood will be resolved, interests of child in temporary placement, application dismissed.
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998; Community Services (Complaints, Reviews and Monitoring) Act 1993.
Category:	Principal judgment
Parties:	CNO & CRA (Applicants)
Representation:	Solicitors: J Smith (Respondent)
File Number(s):	1610279

REASONS FOR DECISION

1. This matter was set down for hearing on 21 November 2016. On that day, there was no appearance by or on behalf of either of the applicants and it became clear that neither applicant intended to attend the hearing.

2. CNO relies upon a two-line report from Dr Kong, her general practitioner, seeking an adjournment of the hearing. The report was obtained by her on Friday, 18 November 2016 after an adjournment application was refused that day.

3. The report from Dr Kong says: "This is to certify that [CNO] is currently experiencing extreme stress and unable to attend a hearing at Court on Monday, 21 November 2016."

4. There were some telephone calls made on the morning of the hearing on my request and the solicitor for the respondent in the application has, after some difficulty (when CNO twice disconnected the call), sent a text message to CNO. The text message was sent at 10.28 and said:

"Hi, [CNO], the Judge hearing your application today has asked me to contact you on your mobile. His Honour is asking for your consent to contact your doctor and ask him questions about the medical certificate. Can you please contact me or let me know whether you consent ASAP. The Tribunal members are waiting and have adjourned to allow me to call you. Thanks. Jane Smith."

5. CNO then at 10.38 telephoned Ms Smith and said she would authorise the doctor to speak to me about the matter. I contacted the doctor at 10.50 and asked what the cause of the stress is. Dr Kong said the stress is arising from the child [P] being taken from her in January. She said she had previously recommended that CNO attend for psychological counselling to address the stress but she failed to implement that recommendation. The doctor said she advised her again last week to do that.

6. When asked whether she was able to say when CNO was likely to be well enough to attend a hearing if the hearing was adjourned, Dr Kong said her condition will not get better if it continues as it is without her having psychological counselling and if she sees the counsellor for psychological counselling she should be well enough in a month's time.

7. The respondent seeks that the application be dismissed on the basis that it is lacking in substance, for want of prosecution on the part of the applicants and because there is a history of the applicant failing to undertake or implement recommendations for her to have psychological counselling in respect of stress.

8. In relation to the lack of substance, (as mentioned in the directions hearing on Friday, 18 November 2016 when another adjournment application was made, grounds that included a bogus ground of her need to attend a funeral on the day of the hearing) the amendment in August changed the application to an application to review not only the decision not to return [P] to the applicants but also the decision to revoke their authorisation as carers.

9. There had been directions before that amendment occurred, but in anticipation of it requiring the applicants to file any material in support of the application and there was a subsequent direction made, I think, in September when they had still not complied with the direction and the hearing had been set down for hearing on a date in October. But there was no Presiding Member available for that date, and then it was listed for the 21 November 2016.

10. Notwithstanding those listings, the applicants still did not file any material in support of the application. On 18 November 2016 CNO indicated that she did not know how to comply with the directions for filing and serving any evidence. She said she did not know what to do. But she had not consulted anyone at all to find out. She had not consulted Tribunal Staff, NSW Legal Aid, a lawyer in private practice or anyone else.

11. When asked her what witnesses she would propose, she named herself and CRA and one other lay witness and when asked whether she was going to call an expert witness she said she would not because they could not afford to pay for an expert witness.

12. She said on Friday, 18 November 2016 that she had arranged to see a lawyer at 12 o'clock on Friday. There is no evidence that she did.

13. I note also that Ms Smith, the solicitor for the respondent, says that on several occasions CNO has informed her that CRA will not be attending the hearing. He did not attend on Friday or today and there is no evidence of any reason he could not attend.

14. After the refusal of the adjournment application on Friday CNO sent an email to the Tribunal, clearly, at 11.06am:

"To whom it may concern, I will be going to the doctor to receive a medical letter. Thank you",

15. Subsequently Dr Kong of Annangrove Medical Centre, through her staff, sent the medical certificate to the Tribunal.

16. I am satisfied that at this stage the applicants have not provided evidence that demonstrates any substance to the application. There is a lack of prosecution of the application in that the respondents have not filed documents in support of the application at all, notwithstanding the Tribunal directions on two occasions, and as of Friday did not intend to have any evidence available for today.

17. There is another aspect and that is whether CNO will, in fact, implement her doctor's recommendation to undertake psychological counselling to address her stress levels. There has been a long history of CNO being advised to undertake psychological counselling and Dr Banks in his report of 20 July 2015 identified the stress levels experienced by CNO and her failure to cope with it, including her failure to implement recommendations that have been made to her that she undertake psychological counselling.

18. She was also offered counselling by Life Without Barriers that was on a basis that it was free, again, for the stress problems. Dr Kong today has said that CNO failed to implement her previous recommendation and referral for psychological counselling. On the evidence one can have no confidence that CNO will change her view about those recommendations for psychological counselling and implement them. So it is not likely that she will be well enough in the foreseeable future to attend the hearing.

19. Given all those matters and given the interests of the child [P], to have this matter resolved rather than have it go on indefinitely while she has been in temporary care arrangement since January and she has had a history of changes of care, unfortunately, I think that having regard to her interests it is contrary to her interests that the matter continue by being adjourned without any prospect that it will actually proceed.

20. In the circumstances, the application should be dismissed and I make that order.

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

25 January 2017 - Corrected errors

Decision last updated: 25 January 2017